-----------------------------------------------------------------------CHAIRPERSON: Good morning. Firstly I should apologise for not having started yesterday, but we were prevented by circumstances beyond our control, one of our Committee Members fell ill and we had to get a replacement for that Committee Member. Judge Khampepe fell ill. I am Motata, Chairing these proceedings. On my right I have Judge de Jager and on my left, I've got Mr Malan. We would hear the following applicants Phahlane, Mnyakeni, Hlophe, Tinyane and Chidi. I would request the legal representatives to place their names on record.

MR PADI: Thank you Mr Chair, I am Tabo Padi, from Padi (indistinct) Attorneys. I will be appearing for Mr Hlophe, Mr Phahlane and Mr Mnyakeni.

CHAIRPERSON: Thank you.

MS THABETHE: Thank you Mr Chair, my name is Ms Thabile Thabethe, I am the Evidence Leader, working for the TRC.

CHAIRPERSON: Thank you. Mr Padi, are you ready and who are we hearing?

MR PADI: Yes, we are ready Mr Chair, we will be hearing the application of Mr Hlophe.

CHAIRPERSON: Mr Hlophe, yes. Are you Mr Hlophe sir?

MR HLOPHE: Yes.

CHAIRPERSON: What language would you speak?

MR HLOPHE: I speak Zulu.

SAMUEL MAFOLANE HLOPHE: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Padi?

EXAMINATION BY MR PADI: Thank you Mr Chairman. Mr Hlophe, can you have a look at the form that I am placing before you, that is the application form, Mr Chair.

CHAIRPERSON: Thank you.

JUDGE DE JAGER: Could you just before starting put on record, you are applying for amnesty for the specific offence, could you tell us what are you applying for?

MR PADI: Thank you. Mr Hlophe is applying for amnesty for the incident that occurred on the 23rd of April 1994, in which he attacked the hostels by using two rocket launchers.

MR MALAN: I wonder Mr Padi, if you can speak directly into the microphone, I find it difficult to hear you.

MR PADI: Okay, thank you Honourable Committee Member.

CHAIRPERSON: Attack the hostel with?

MR PADI: With rocket launchers. He used two rockets to attack the hostel.

JUDGE DE JAGER: Which hostel, where?

MR PADI: It was the hostel in, it was Mshyazafe hostel.

JUDGE DE JAGER: Could you kindly repeat?

MR PADI: Mshyazafe hostel.

CHAIRPERSON: Is that the only hostel?

MR PADI: That is the only hostel that he attacked.

CHAIRPERSON: Where is it situated?

MR PADI: It is situated in Tokoza.

CHAIRPERSON: That would be the Alberton district?

MR PADI: Yes.

CHAIRPERSON: Is that the only incident he is applying for, why I am asking you, I am looking at his application on page 2, damage to property, attempted murder and murder?

MR PADI: The reason those incidents are placed on record, is that by the attack, there is a possibility that some other people might have been injured or killed. It does not relate to any other specific incidents, different from the one that is in question here. Thank you. I am told that Buyafuti was also the hostel that was attacked.

CHAIRPERSON: Where would that be situated?

MR PADI: Can I have a short moment?

CHAIRPERSON: Certainly.

MR PADI: Thank you Mr Chair. The Buyafuti hostel was also attacked by a rocket, on the 24th of April 1994.

CHAIRPERSON: How was this hostel attacked?

MR PADI: It was attacked by using a rocket launcher.

CHAIRPERSON: You may proceed.

MR PADI: Thank you Mr Chairman. I am going to refer the applicant to his application form here. Mr Hlophe, do you see the application form in front of you?

MR HLOPHE: Yes, I can see it.

MR PADI: Did you fill in this application form yourself?

MR HLOPHE: That is correct.

MR PADI: Was there any other person helping you in filling in this application form?

MR HLOPHE: That is correct, there was somebody.

MR PADI: Who was that person?

MR HLOPHE: Mr Africa Khumalo, he is the person who assisted me when filling in the form.

CHAIRPERSON: Who is Africa Khumalo?

MR HLOPHE: He was a member of staff of the ANC Intelligence Unit.

MR PADI: Thank you Mr Hlophe. Mr Hlophe, you are applying for amnesty for the incident that took place on the 23rd of April 1994 and the incident that took place on the 24th of April 1994, that is the hostel attacks of Mshyazafe and Buyafuti, is that correct?

MR HLOPHE: That is correct.

MR PADI: At the time of the incident, were you a member of any political party or movement or organisation?

MR HLOPHE: I am a member of the ANC.

MR PADI: Were you the member of the ANC at the time of the incident?

MR HLOPHE: That is correct.

MR PADI: Mr Hlophe, were you holding any particular position in the ANC in the area in which you lived?

MR HLOPHE: Yes, I was a commander.

MR PADI: Can you repeat your answer please?

MR HLOPHE: Yes, I was a commander.

MR PADI: You were a commander of what?

MR HLOPHE: Of the SDU.

MR PADI: Were you a member of the SDU as well?

MR HLOPHE: That is correct.

MR PADI: Mr Hlophe, can you give to the Committee the background that led to the attack at Mshyazafe hostel on the 23rd of April 1994?

MR HLOPHE: Actually on the 21st of April 1994, at that time, I was not residing at home, but I had fled to Vosloorus. There was a fight between hostel residents at Tokoza, the Mshyazafe hostel and the township residents. I had deployed my comrades at Zone 1, Mavimbela and other areas.

On my way to check on the comrades, I found all of them present, but they were complaining about the situation in Tokoza. We then had a discussion with the comrades wanting to enquire if we should go attack the hostel and I declined saying "no", we should follow certain procedures before we launch an attack and they listened to me.

On the 22nd, when I checked upon them again, they still insisted that we try and assist the people of Tokoza, and still I refused. On the 23rd, I agreed that we could go attack, but that we should check and conduct a surveillance of the situation, so we went there and we did, we found that there was a war going on. There were shots that were fired from the direction of the hostel and there were others that were fired from the township, towards the hostel, the Mshyazafe hostel.

I spoke to the ANC Chairperson in Tokoza and identified myself and we discussed that the situation was becoming unbearable because the people of Tokoza were armed with only knopkieries, because the war had been going on since the 21st. I then informed them that I had a certain machine that we could use to assist the people, and it was agreed that we should go to my home, or to my place.

MR PADI: What machine are you referring to?

MR HLOPHE: A Bazooka. A bazooka.

MR PADI: Would that be a rocket launcher?

MR HLOPHE: That is correct. I then went, took that rocket launcher and two rockets and then proceeded to Tokoza. The fighting was still going on. As we approached Tokoza, it became apparent that we could not reach our destination. We then turned back towards the garage.

JUDGE DE JAGER: Before you proceed, could you tell us, you said you discussed it with the Chairperson in Tokoza, the ANC Chairperson, who was he?

MR HLOPHE: I have forgotten his name.

JUDGE DE JAGER: And now you say you are proceeding "we were proceeding", did you proceed in a group or what was the position?

MR HLOPHE: After speaking to the Chairperson there, I spoke to Mr Mqobese, who was a commander, he then gave me a car and he gave us a driver and I and other three comrades went to fetch the weapons, and when we returned we were using the same car and there were four of us.

CHAIRPERSON: You say you spoke to Mqobese who was the commander in Tokoza?

MR HLOPHE: That is correct.

CHAIRPERSON: Which forces were you commanding if there was a commander in Tokoza?

MR HLOPHE: There were many commanders because there were different battalions. Tokoza had its own squad as well as Vosloorus had their own. Mr Mqobese was a commander at Tokoza, but he was not the only person who was in command.

CHAIRPERSON: You may proceed. You may proceed.

MR HLOPHE: He then issued us with a vehicle and we fetched that rocket launcher and two rockets and on our way back, we discovered that the way to the hostel via the hospital, was blocked by soldiers. We then went towards the garage and that is how we proceeded to carry out the attack.

MR PADI: Was there fighting happening, was there still an exchange of shots from the hostel and the location?

MR HLOPHE: Yes, there was still fighting going on.

CHAIRPERSON: Where was this garage, you say on your way back you found soldiers having blocked a way, where was this way blocked because now I know you are from Vosloorus, where are you, where do you find this roadblock?

MR HLOPHE: They were next to the bridge, near the railway tracks.

CHAIRPERSON: Mr Hlophe, you speak as if we know the area. When you tell us about the bridge, tell us where this bridge is situated, because I said to you we know you are from Vosloorus. Firstly where was the roadblock, because there must be a location where the roadblock was?

MR HLOPHE: It was not a roadblock, but there was a base where they were stationed, that was near the hospital. So we felt that if we go via there, we would be exposed to them, so we decided to use another road, which was far from their base.

CHAIRPERSON: You are still losing us, Mr Hlophe, because you are from Vosloorus, you tell us of the hospital, there must be locations for all this. I mean we cannot just say there was a hospital, where was this hospital and where was this bridge? We are lost?

MR HLOPHE: It is the Natalspruit hospital. There is a bridge near that hospital and the bridge goes over the railway tracks. That is where the soldiers were stationed or based.

CHAIRPERSON: Yes, you may proceed.

MR HLOPHE: After we had launched the attack, many of the comrades were now approaching the hostel directly. The soldiers also then approached, firing at us. At that time, we tried to flee, we then took the launcher and proceeded to get into the car to flee.

MR PADI: Did you take all the people who were in your battalion and ran away or who else was there when you left the area?

MR HLOPHE: I only took two of my own battalion when we fled, because the car was already in motion and two were left behind. At that time the soldiers were firing heavily, and it was clear that we would either be arrested, or be killed.

MR PADI: Mr Hlophe, can you tell the Committee as to who supplied you with your arms?

MR HLOPHE: It was myself, comrade Mbugane who was also a commander at Natalspruit.

MR MALAN: Was the question not who supplied you with the arms? I am speaking to you Mr Padi. Was your question who supplied him with the arms?

MR PADI: Yes, that was my question.

MR MALAN: And I hear him answering "myself and others". Can you ask the question again, where did you get the arms from, Mr Hlophe, the launcher?

MR HLOPHE: They were brought by another comrade from Mozambique.

MR PADI: Who was that comrade?

MR HLOPHE: Vincent, he used to sell them.

MR MALAN: Did you buy it from him?

MR HLOPHE: We promised to pay him, but we did not have enough money to pay him.

MR PADI: But he gave the arms to you anyway, despite you haven't given him the money?

MR HLOPHE: That is correct, he did give us ...

MR MALAN: Did you give him less money than he asked for?

MR HLOPHE: We did not pay him even a cent, we had just promised to raise the money to pay him. We were going to collect it from the community, but he was asking for too high a price. He wanted to take them from us, so we refused because if we had given them to him, he would have sold them to Inkatha, so we decided not to return them to him.

MR MALAN: I thought you said he was a comrade from Mozambique, who came from Mozambique? Isn't that what you said?

MR HLOPHE: That is correct.

MR MALAN: Why would a comrade be selling arms to other comrades?

MR HLOPHE: That was the problem. We were also amazed when he told us that he was selling these arms to us. But there were people who used the word comrade for their own selfish ends.

MR MALAN: And you say he would have, in other words, it was not a comrade, is that what you are telling us? You bought it from a gun dealer, an arms dealer?

MR HLOPHE: I would agree with you there, but we could not dispute to him when he came to us and said that he was a comrade.

MR MALAN: Let's understand each other, you were saying to us that if you did not buy it, he would sell it to Inkatha? That is what you told us now?

MR HLOPHE: He said so.

MR MALAN: If he said so, then surely you knew he was not a comrade? A comrade would not have sold arms to Inkatha?

MR HLOPHE: That is correct. That is when we started suspecting him, because when he told us that he would sell them to the IFP, we suspected that he was not a comrade.

CHAIRPERSON: Was he a Mozambican by origin?

MR HLOPHE: He is from Swaziland, he is a coloured person from Swaziland, but he had gotten the weapons from Mozambique.

MR PADI: Did you know Vincent before?

MR HLOPHE: No, I did not know him before. I only got to know him when he brought the weapons. When he approached us the first time, he did not have the weapons with him, but he was just looking for a buyer, that was the first time I got to know him.

MR PADI: Mr Hlophe, so far you have only told us about the incident that related to the 23rd of April and the attack of Mshyazafe hostel. Can you tell us about the incident that related to Buyafuthi hostel, which happened on the 24th?

CHAIRPERSON: Before you do so Mr Padi, when you launched the rockets at this Mshyazafe hostel, did you see whether property was damaged or anything there, or you just launched and ran away?

MR HLOPHE: We did not get to hear of who was injured, but we did see damage to property because the rocket went straight into the hostel building itself from the side where the shots were coming from, but we didn't get to know what exactly happened after it had been launched.

CHAIRPERSON: Was it the only rocket that went, or both went into the hostel?

MR HLOPHE: The two rockets were used at the hostel.

MR MALAN: Who were the, you say shots were coming from the hostel, who did they shoot at?

MR HLOPHE: They were firing towards the township, they were shooting at the comrades.

MR MALAN: And you were moving in from that side, because you said that is where the rocket went in?

MR HLOPHE: Yes, we approached from the side of the comrades.

MR MALAN: So you were between the township and the hostel, you blocked the shots from the hostel?

MR HLOPHE: That is correct. We were coming from the township and we were fighting people from the hostel.

MR MALAN: So they were shooting at the township, not at you? Why were they not shooting at you?

MR HLOPHE: They were shooting at us, in the township.

MR MALAN: Thank you Mr Padi.

MR PADI: Thank you. To follow up on that, Mr Hlophe, at the time you were preparing your rockets, at the time you prepared it, were you hiding behind something, were you shielding yourself against the bullets that were coming from the hostel, can you clarify that to the Committee? My question was did you shield yourself, how did you protect yourself, because you said that there were bullets, there were shootings that were coming from the hostel, so at the time when you were preparing your rocket, where did you hide yourself or how did you shield yourself from the bullets that were coming from the hostel?

MR HLOPHE: I had covered myself in a blanket and on approaching the hostel, I removed the blanket and prepared the rocket.

CHAIRPERSON: Because you say they were firing at you and the question from your legal representative is how did you protect yourself from the fire that was emanating from the hostel?

MR HLOPHE: I took cover. I was crawling as I was proceeding there, and there were people who covered me, who were taking guard, so that I could get nearer.

MR PADI: Mr Hlophe, can you now tell us about the incident of the 24th?

MR MALAN: Just before you proceed, how were they taking guard, how were they protecting you?

MR HLOPHE: They were carrying firearms, following.

MR MALAN: Were they shooting at the hostel?

MR HLOPHE: They did not shoot at that time because they were on the lookout, that if anybody shoots at us, they are in a position to respond.

MR MALAN: I thought you were saying that shots were coming from the hostel, so were they not shooting at you?

MR HLOPHE: In fact, we did not approach directly in front of them, we approached from another angle. They were shooting towards an area called Penduga, but we approached from the side of the garage and I was being covered by my own soldiers as we went to the hostel.

JUDGE DE JAGER: A few moments ago you told us that you went in between the township where the comrades were shot at, the hostel owners were shooting at the comrades in the township, and you and your people went in between them, wasn't that so?

MR HLOPHE: Yes, the hostel is next to the township, it is very close to the township, they are just separated by Khumalo Street. When we approached from the Penduga side, we realised that we could not get in through that route, so we went around behind the garage, and we approached them from behind, where they were not looking. At that time, they were shooting directly towards Penduga. The comrades that they were fighting with, were straight ahead of them, but we crossed the street and went behind the garage, so that we could approach from another angle.

JUDGE DE JAGER: This was during the day, broad daylight?

MR HLOPHE: Yes, around eleven, half past eleven.

MR MALAN: Just before you proceed, who taught you how to use the Bazooka?

MR HLOPHE: I knew about it, I was trained in that.

MR MALAN: Where were you trained, I asked you who trained you, where did you learn?

MR HLOPHE: I was trained in Mozambique.

MR MALAN: How did that come?

MR HLOPHE: It was in the 1970's or in the 1980's.

MR MALAN: Are you going to tell us, Mr Padi, cannot you lead your client on that?

MR PADI: Let me lead him on that, thank you. Mr Hlophe, you said that you were trained in Mozambique. What led to you going to Mozambique and getting the training that you just told us about?

MR HLOPHE: I was with a comrade Mancani who is now late, and we went to Mozambique. He is the person who taught me there how to use a Bazooka. Thereafter we returned to Katlehong with comrade Mancani.

MR PADI: Why did you go to Mozambique, my question was what led to you eventually going to Mozambique and getting the training?

MR HLOPHE: We were fleeing from the boers who were harassing us in the township.

MR PADI: Were you trained at a military camp?

MR HLOPHE: Yes, that is correct, at Amadola.

MR PADI: Was that military camp related to any of the political associations or movements at the time?

MR HLOPHE: Yes, it was an MK camp.

MR PADI: Does it clarify that?

CHAIRPERSON: Not yet, you say you were with Mancani when you went to Mozambique. Did you find other people in Mozambique, because you said Mancani trained you, was he already trained when you left South Africa together?

MR HLOPHE: He had already been trained, he was a full member of MK. On our return to South Africa, he used to assist me in training other comrades.

CHAIRPERSON: Was he a commander in Mozambique of the MK Forces?

MR HLOPHE: Yes, he was a commander, his name is Gavin. When he returned, he was based at Shongweni and that is how I got to work with him.

CHAIRPERSON: When did you return to South Africa?

MR HLOPHE: He returned around 1989 and we started training comrades around 1992, when the situation was very bad.

CHAIRPERSON: I do not follow. Did Mancani return in 1989 or did you return in 1989?

MR HLOPHE: I came back with him in 1989 and he was based at Shongweni and I was based at Mavimbela.

MR MALAN: Were you a member of MK?

MR HLOPHE: When I went to Mozambique, I was an ANC supporter, on my return I joined the SDU.

JUDGE DE JAGER: The question was, please listen to the question, he asked you whether you were a member of MK, he didn't speak about SDU's?

MR HLOPHE: No.

CHAIRPERSON: Even in exile in Mozambique, you were merely a supporter not a member, of the ANC?

MR HLOPHE: No, I did not join the MK because we did not spend a lot of time in Mozambique, we returned fairly soon.

CHAIRPERSON: I do not follow, you said, you were asked by my colleague when did you leave, you said during, either during the 1970's or the 1980's, do you recall saying that?

MR HLOPHE: Yes, I recall that. We did not go there once, we would go and return, but we last went there in 1989.

CHAIRPERSON: It is completely now muddled up, we do not follow. Just tell us, Mr Hlophe, when did you go to Mozambique for the first time?

MR HLOPHE: Around 1986.

CHAIRPERSON: When did you return?

MR HLOPHE: We would normally go, come back, but the last instance was in 1989.

CHAIRPERSON: How long would you spend on those trips to Mozambique?

MR HLOPHE: About a month, but it would not be more than two months.

CHAIRPERSON: As an ANC supporter, who would you be with at Amatola?

MR HLOPHE: I do not understand your question. As I mentioned before, I was an ANC member.

CHAIRPERSON: No, I thought you said you were a supporter, you were not a fully fledged member of the ANC?

MR HLOPHE: There is a difference in MK, the fully fledged trained soldiers, and there were people who were just trained for the purpose that they had fled from the boers.

CHAIRPERSON: I would appreciate if you were to listen Mr Hlophe, because we are trying to get clarification from you. At one stage I heard you to say that you were not a member of the ANC, you were a supporter, and subsequently when I asked you questions, you said "no, I was a member of the ANC", and now I am confused.

MR HLOPHE: Is there a difference between an ANC member and an ANC supporter?

CHAIRPERSON: Yes, a member would be a card carrying member, a person who has declared himself "I am a member of the ANC and I would go there", a supporter would be somebody probably like me and say "I like the ANC and I am happy for what they are doing, I support them and not participate in their activities", that would be a supporter.

MR HLOPHE: Okay. Now I understand. I was a member with a membership card.

MR MALAN: When did you become a member, when did you get a membership card?

MR HLOPHE: It was a long time ago, I do not recall the year. It expired and was confiscated by the boers. I did not renew my membership after it had expired.

CHAIRPERSON: Where did you join the ANC as a member? We know that you left during 1986?

MR HLOPHE: I joined at Khotso House.

CHAIRPERSON: Mr Hlophe, let's just follow. I thought when I asked you, you said the first time you left was 1986, do I, did I get you correctly?

MR HLOPHE: That is correct.

CHAIRPERSON: When you joined the ANC at Khotso House, at which year was that?

MR HLOPHE: If I am not mistaken it was 1985. It has been a very long time, and I never thought that I would be questioned on it at some point.

CHAIRPERSON: Did the ANC have offices at Khotso House, are you referring Khotso House at de Villiers Street in Johannesburg?

MR HLOPHE: There were people who were based at Khotso House who would come to us at the township and take our particulars so that we could obtain cards.

JUDGE DE JAGER: Khotso House was not only used for church, for the Council of Churches?

MR HLOPHE: We would not go to Khotso House personally, but we would give our particulars to these persons who would go there and they would return the cards.

CHAIRPERSON: You don't bear knowledge that the ANC had, personal knowledge that the ANC had offices at Khotso House, do you bear that personal knowledge?

MR HLOPHE: No. I have no certainty in that regard, because we did not go to Khotso House personally, and we would be getting those cards from the people who went to Khotso House and they would guide us as to how we conduct ourselves.

CHAIRPERSON: We would appreciate it if you would speak directly to us because the impression you gave us, is that you joined the ANC at Khotso House, which makes it a difference that people came into the township and said "we are from Khotso House and we want you to join the ANC", there is a big difference there, would you not agree with me?

MR HLOPHE: Yes, I must have made a mistake. I was just trying to explain how we obtained these cards. They would not have allowed me to go there directly, to approach them, because there was a lot of mistrust at that time, but those comrades were known to be members of the ANC, so they were trusted. At that time, this was done covertly.

CHAIRPERSON: You may proceed, Mr Padi.

MR PADI: Thank you Mr Chair. Mr Hlophe, can you now tell us about the incidents, or about the background to the attack of Buyafuthi hostel on the 24th of April 1994?

MR HLOPHE: There were soldiers who were standing, or who used to stand up top a water tank at that hostel, when we approached at that time, we did not see them on that day. We assumed that they had gone inside to the hostel, so we went to Extension 2 in Tokoza and met other comrades there, and discussed a plan of getting to the hostel to attack that hostel. So the comrades agreed that they would cover us if we went to pick there up the weapon to attack, so our intention was to attack the SADF who were inside the hostel.

MR PADI: At any stage, was there a fighting between the people from Buyafuthi hostel and the people from the location?

MR HLOPHE: Yes, there was a lot of fighting between those two groups. Some of the hostel residents would attack Ngadi Section, some would attack Tokoza itself. We felt that we could not approach from the Ngadi Section because there was heavy fighting going on there, so we approached from the Tokoza side.

JUDGE DE JAGER: But on that day, there was no fighting?

MR HLOPHE: There was fighting.

JUDGE DE JAGER: But you approached it, you didn't see the soldiers, they were standing on the tank stand, and on that day there were no soldiers standing there, you didn't tell us that there were gunshots fired on that day?

MR HLOPHE: Well, I had not been questioned on that one. The reason that they were not on that water tank is because there was fighting going on and they had gone to lend their assistance to the hostel residents.

MR PADI: Was it on this particular incident, was it you who launched the rocket at the hostel?

MR HLOPHE: It was one of my soldiers. I was around, taking cover. We had two rockets in that instance. On that instance, it was one of my soldiers who launched the rocket. I had a Macarov pistol and the rocket to take cover, and when he launched the rocket, he fell, he was injured, and therefore we had to take care of him, and could not launch the second rocket, and at that time, after the first rocket had been launched, there were people who were approaching from Section 2, so we had to flee.

CHAIRPERSON: Were you using any transportation on that day?

MR HLOPHE: We did use vehicles. When we approached nearer, we would place the vehicle under cover, so that we approach under foot.

CHAIRPERSON: I would love that you tell us directly what you did. Don't speak as if we know that you would put the vehicle that side, tell us this day, this is what happened. We got the rockets from where, how many were you, how you were armed, that is what we want to know. How you got to attack this hostel because as you speak, it is garbled, we don't follow what you are saying. Tell us from the beginning, how did it begin on this particular day, that is the 24th of April 1994?

MR HLOPHE: We were at Radebe Section, facing the onslaught from the hostel, and we realised that we could not approach nearer, so I took four of my soldiers, went in to a vehicle, a Sprinter, and we went around Phola Park to Extension 2. That is where we met comrades who had been protecting that area, those were SDU members, we met them and they said we should launch the attack from that side, because the other side was heavy.

We went to fetch the rocket launcher and two rockets, and firearms. We would use these firearms to take cover and to guard as we were preparing to launch the rocket. There were many of us, but just four of my own soldiers when we went to launch the attack. We were on Schoeman Road and we launched the attack from around there.

One of my comrades then launched the attack and after launching the first rocket, he fell. I realised that he was injured, I then dragged him from the scene and took him away from the scene for cover, and then we attempted to assemble everything and went into the vehicle to flee. We could not launch the second rocket, because at that time, the people from the hostel had already started firing back towards us. We just got into the vehicle and drove off.

JUDGE DE JAGER: On the 24th, did you still stay in Vosloorus?

MR HLOPHE: I was still based in Vosloorus. I only returned to Katlehong after the elections.

CHAIRPERSON: Just answer the question, on the 24th of April, were you still saying in Vosloorus, it is a simple question?

MR HLOPHE: I was just trying to explain that at that time I was still based in Vosloorus, I would only come to check on the soldiers in their bases here in Katlehong.

JUDGE DE JAGER: Where was your area of command?

MR HLOPHE: In Mavimbela.

JUDGE DE JAGER: And this hostel, where is the hostel situated?

MR HLOPHE: It is next to Radebe and Ngadi in Zone 1 in Katlehong.

JUDGE DE JAGER: Was that within your area of command?

MR HLOPHE: That is correct.

JUDGE DE JAGER: And also the other hostel which you attacked the previous day?

MR HLOPHE: No, Mshyazafe is not in my area, that is why I approached the commander of the area to offer my assistance.

JUDGE DE JAGER: Now, on the 24th, did you take the decision on your own to attack?

MR HLOPHE: Please repeat that question.

JUDGE DE JAGER: Who decided that you should attack this Buyafuthi hostel?

MR HLOPHE: I decided from the assessment of the situation, there was heavy fighting. We decided, I decided to launch that rocket.

JUDGE DE JAGER: That was five days before the election, no less than five, three days before the election?

MR HLOPHE: Yes, they were very close.

JUDGE DE JAGER: Wasn't there a call by your leader, Mr Mandela, at that stage, that there should be peace before the elections?

MR HLOPHE: Peace had been negotiated for a very long time, but it took a while for that to take effect.

CHAIRPERSON: But was there no call that there should be peace, was there no call? Forget about negotiations?

MR HLOPHE: Yes, there were such calls, but the attempts that were made, were to no avail, because peace only came about after the elections, because even then, there was no trust between the parties, it took a while for that trust to develop.

MR MALAN: Mr Hlophe, the evidence that we have and it is also included in the report from the Truth Commission, is that the Peace Committee was very, very active on the East Rand, inclusive of Katlehong, Vosloorus monitoring the situation, moving in the streets, talking between the parties taking place, you see, our difficulty is, we have no record that what you are telling us, indeed even happened, we could not trace any reference to that anywhere. You are telling us, you are giving us a story, which to me says "this is all-out war, people are shooting at each other, day in, day out, in the middle of the day, defending yourselves, using rocket launchers and rockets." You know nothing about even a call for peace, let alone the activity of the Peace Committee at that stage. Did you know anything about the Peace Committee? Did you know that there was a peace initiative, Peace Committing, operating on the East Rand?

MR HLOPHE: Yes, I knew that there was a Peace Committee, that was based near the hospital, that was making attempts for peace at the township, but they were just as good as not being there, because people were killed day in and day out in their presence. Yes, there was a Peace Committee.

MR MALAN: Did you ever approach them?

MR HLOPHE: Yes, we used to go there every day.

MR MALAN: What did you do there when you went there? What did you do?

MR HLOPHE: We would tell them that there should be attempts made to stop the war going on. At some instance, some members of the Peace Committee were shot at because there was a lot of mistrust, they seemed to be siding with the ANC. The situation in Katlehong was very bad, because even if you went to try and intervene, you might be killed. There was no trust between these two parties, the IFP and the ANC, even within the Peace Committee.

MR MALAN: Your evidence is you went to the Peace Committee every day, asking them to stop the attacks, to do something?

MR HLOPHE: That is correct, we used to go there every day, even at night.

MR MALAN: Did you go there on the 23rd?

MR HLOPHE: No, we didn't go on the 23rd.

MR MALAN: Did you go there on the 24th?

MR HLOPHE: No.

MR MALAN: On the 21st?

MR HLOPHE: We used to go there regularly, but we did not go from the 21st to the 24th.

MR MALAN: Did you go there on the 25th again?

MR HLOPHE: No.

MR MALAN: On the 26th?

MR HLOPHE: There was after launching those rockets, the fighting or the gunshots died down.

MR MALAN: Where did you get the second group of rockets? How many rockets did you keep at your place?

MR HLOPHE: There were 16 and two Bazooka's.

MR MALAN: Where did you get the 16 rockets, did you get all 16 from that arms dealer from Swaziland?

MR HLOPHE: They were brought by Vincent.

MR MALAN: Sorry, I didn't hear the answer from the Interpreter?

MR HLOPHE: They were brought by Vincent.

MR MALAN: Who is Vincent? Is that the arms dealer?

MR HLOPHE: He is the person who brought the Bazooka's and the rockets.

MR MALAN: Did you ever pay him for that Bazooka's and rockets?

MR HLOPHE: As I mentioned previously, we did not pay him a cent. He was asking for a high price.

MR MALAN: And he never came to look for his money again?

MR HLOPHE: He returned many times.

MR MALAN: You didn't return the rockets that you didn't use, to him, saying "we don't want it, you can have these rockets"?

MR HLOPHE: No, we did not.

MR MALAN: What did you do with the launcher and the rockets subsequent to the attack on the 24th, what happened to those weapons?

MR HLOPHE: The police were sent to fetch them after about three months. I do not know where they took them to.

MR MALAN: The police were sent to fetch the rockets and the launcher, is that what you said?

MR HLOPHE: That is correct. They came in a master vehicle. I asked them to take them, but they were sent to pick them up.

MR MALAN: Who sent them?

MR HLOPHE: I spoke to Robert McBride at the office, informed him that I had weapons that I wanted removed. He told me I should take them to the police, I asked him how and he informed me that he will send people who will fetch them from me, if I am uncomfortable taking them to the police because I feared that I would be arrested along the way to the police if I took them myself.

MR MALAN: When was this?

MR HLOPHE: In 1994.

MR MALAN: What date in 1994, when more or less?

MR HLOPHE: I do not recall the date, but it was about three months after the elections.

MR MALAN: You spoke to Robert McBride and McBride sent the police, and the police came to you and they asked, they said ...

MR HLOPHE: That was after I had that discussion with him as to what to do with that material and he suggested that I take them to the police. I asked him how, I told him that I could not take them myself to the police and he said he was going to send people to fetch them, and indeed the people arrived. There were two of them.

MR MALAN: And they said that they were policemen?

MR HLOPHE: Yes, they even showed me their badges.

MR MALAN: Were they in uniform?

MR HLOPHE: No, they were in private clothes.

MR MALAN: Did they tell you that McBride sent them? Sorry, I didn't hear that you were continuing and I didn't get an interpretation. What was the last statement that you made, I didn't want to interrupt you, I am sorry Mr Hlophe.

MR HLOPHE: They were in private clothing and I questioned them, "how do I know you are the police" and that is when they produced their cards. Then I realised that indeed they were the police, so I fetched the weapons and I handed them over to them. They could not have been able to enter that Section in their uniform.

MR MALAN: Why not, this was after the election, there was a new government in power, it was three months after the election at least, that was your evidence, why could they not have entered in uniform?

MR HLOPHE: There was still mistrust at the time, it took a while for a relationship to develop between the police and the residents. He would have been disturbed or attacked even when he sat his foot on the township, if he was in uniform.

MR MALAN: Did these policemen tell you that they were sent by Mr Robert McBride?

MR HLOPHE: Yes, they informed me that they had been sent by Mr McBride and I was also expecting them because of the discussion I had held with Mr McBride.

MR MALAN: Thank you.

CHAIRPERSON: You may continue Mr Padi, we are sorry that we had to jump in, but we had to clarify certain things which were not clear to us.

MR PADI: No, I am indebted to you Mr Chair. I am afraid I have no further questions, that is my evidence.

CHAIRPERSON: Thank you Mr Padi. Ms Thabile Thabethe?

MS THABETHE: No questions, Mr Chair.

CHAIRPERSON: Thank you Mr Hlophe, you may stand down.

MR HLOPHE: Thank you.

CHAIRPERSON: Do you have anybody to call, or that is your evidence, Mr Padi?

MR PADI: That is my evidence, Mr Chair.

CHAIRPERSON: Are you in a position to motivate why we should grant the applicant amnesty?

MR PADI: Can I be given five minutes before I do that, Mr Chairman?

CHAIRPERSON: Certainly, until half past ten?

MR PADI: Yes, that will be fine.

CHAIRPERSON: Thank you, we will adjourn for five minutes.

MR PADI: Thank you.

ON RESUMPTION:

CHAIRPERSON: Mr Padi, are you ready to argue?

MR PADI: Yes, I am ready, Mr Chair.

CHAIRPERSON: You may proceed.

MR PADI IN ARGUMENT: Thank you Mr Chair. We have heard from the evidence of Mr Hlophe, that he is a card carrying member of the ANC, and that he was a member of the ANC at the time of the incident for which he is applying for amnesty.

JUDGE DE JAGER: He received his card in 1985/1986? Were any cards issued at that stage?

MR PADI: I wouldn't have any knowledge of that, Mr Chair.

JUDGE DE JAGER: Right.

MR PADI: Thank you. From his evidence we also learn that he was a member of the Self Defence Unit, which was set up by the African National Congress and he was even a commander, he was a commander of the SDU. During the time of the incidents in question, that was the time when there was conflict in the areas of the East Rand, mainly between the IFP and the ANC. Mr Hlophe committed the incidents in question acting as a commander of the SDU and in pursuance of the ideals of the African National Congress and of the SDU's which were set up, which had the main function of among others, protecting the people and ensuring that the African National Congress gets as much support as possible, especially since it was the time of approaching the elections.

MR MALAN: Was there any such evidence?

MR PADI: Excuse me, Your Worship?

MR MALAN: Was there any such evidence about supporting and support for the elections?

MR PADI: This would come as a question of general knowledge, Your Worship.

MR MALAN: No, we have a specific application, Mr Padi.

MR PADI: I am indebted to you, Mr Chair. I wish to state that there were some irregularities in the evidence of Mr Hlophe, but I submit that the irregularities which came up, were not, did not relate particularly to the incident, were relating to other issues which were not material to the application of Mr Hlophe. I further submit that Mr Hlophe complied with all the requirements of the Act for the granting of amnesty, in that his acts were associated with a political objective, he was doing his acts as a commander of the SDU. I further submit that Mr Hlophe made a full disclosure relating to the incidents for which he is applying for amnesty.

JUDGE DE JAGER: Didn't he act contrary to the policy of the ANC at that stage?

MR PADI: No Your Worship.

JUDGE DE JAGER: Was it the policy of the ANC to launch attacks three or four days before the election?

MR PADI: No, that was not the policy of the ANC, but in establishing the SDU's, it was the policy of the ANC that people should defend themselves. So at the time of the committing of the incidents, these were done in protecting the people which was well in accordance with the policy of the ANC at the time.

I further submit that these acts were committed in the time period which is stipulated by the Act. I therefore request the Honourable Committee to grant amnesty to Mr Hlophe for the incident of launching rockets at Mshyazafe hostel on the 23rd of April 1994 and for the incident of commanding that a rocket be launched at Buyafuthi hostel on the 24th of April 1994. That is all, thank you.

JUDGE DE JAGER: He didn't give any evidence that he indeed had the intention of killing people?

MR PADI: That did not come out clear in his evidence, Your Worship, but what was clear was that whatever it is that was done at the time, was done in the view of seeing to it that the people are protected and that - sorry, the shooting between the hostel and the resident people, is brought to a stop.

JUDGE DE JAGER: Yes, but he is applying for amnesty for attempted murder, I am just thinking about it. He didn't give any evidence that he indeed attempted to kill somebody, by the nature of the attack, shouldn't one foresee that people could have been injured and should we grant amnesty, that is really the question, should we grant amnesty for attempted murder or the planning of a murder or murders, conspiracy to murder?

MR PADI: Yes, (indistinct)

CHAIRPERSON: Your microphone is not on, Mr Padi.

MR PADI: It is true that one could have foreseen that in launching a rocket at a place where there are people, people may die as a result of that, and people may be injured as a result of that. Now the application for amnesty arises from that incident of launching rockets and all other crimes which may emanate from the launching of the rocket, so I request the Honourable Committee to grant him amnesty for any other crime which may come as a result of him launching the rockets at the hostels.

JUDGE DE JAGER: We know of at least one injury and that was the person firing the rocket, he was injured in the process?

MR PADI: Yes, that is correct. What creates the problem is that the victims here, are not known, so it is difficult for one to say that we are applying for the murder of so and so, or for the injury or attempted murder of so and so, but however, we say that should it happen because it has been foreseen that people could have been injured or killed in the process, should at any stage, they come up, we find that we will have cured that by applying for amnesty for that, at this stage.

CHAIRPERSON: But if I listen to the evidence, it is that Mr Hlophe wanted just abatement of the attacks that emanated from the hostel, not that he had foreseen that people could be injured in the process of the rocket launchers?

MR PADI: That was his evidence Honourable Chair. Emanating from his evidence, when one launches a rocket at a place where there are people, it goes without saying that people will be injured or will be hurt, it is not unforeseeable that things like those may happen. Hence in the submission, I request the Honourable Committee to take into account things like those and grant him amnesty for other crimes which may have emanated from his conduct.

CHAIRPERSON: With the evidence before us, I can see that we might, if we do, grant amnesty for any delictual action that may flow from that, but we've got a slight problem in that we don't have evidence before us because we cannot assume that he would have foreseen without evidence, that people might have been injured in the process, because we've got to have evidence before us for that.

MR PADI: That is correct Mr Chair, but from the evidence which is before the Committee, the evidence which is before the Committee is that Mr Hlophe launched rockets at the hostel, he knew very well that there were people living there and he knew for a fact at the time of the incident, that there were people there. In doing that, it is not unforeseeable that people might get injured or killed in the process, hence we include the amnesty application to extend to crimes which may have happened as a result of him launching the rockets at the hostel.

CHAIRPERSON: Are you rather not saying that because there was fighting between two groups of people and a rocket was launched in the direction of the other group, that is probably foreseen? Are you not probably saying that because it would appeal to me probably if you would put it that way?

MR PADI: That is, I would rather put it in that way and I am indebted to you Chairperson. Those are my submissions.

CHAIRPERSON: Thank you Mr Padi. Ms Thabethe?

MS THABETHE: Mr Chair, I have no submissions, except maybe to say that the Committee has evidence before it, not opposing in any way and I would have no objections if amnesty were to be granted to the applicant.

CHAIRPERSON: Thank you Ms Thabethe. Mr Padi, we shall reserve our decision and it shall be known as soon as possible, and it shall be communicated to you and Mr Hlophe in due course.

MR PADI: Thank you Mr Chairman.

CHAIRPERSON: Mr Hlophe, you may now stand down. I suppose Mr Padi, you are still in the driving seat, who are we hearing now?

MR PADI: Mr Chair, I was requested to give Mr Mposho an opportunity to lead his evidence, because one of the witnesses has to go somewhere.

CHAIRPERSON: Okay.

MR PADI: I am sure Ms Thabethe can clarify that.

CHAIRPERSON: That would be Mr Moloto?

CHAIRPERSON: Mr Moloto, I take it it is now your client, Chidi?

MR MOLOTO: That is correct Mr Chairperson.

CHAIRPERSON: What language does Mr Chidi wish to speak, Mr Moloto?

MR MOLOTO: Let me find out. I am informed he is speaking Sipedi, Mr Chairman.

INTERPRETER: I beg your pardon Honourable Chairperson, unfortunately we don't have a Sipedi interpreter with us here.

MR CHIDI: Sotho, it will be okay.

CHAIRPERSON: Do we have a Sotho interpreter?

INTERPRETER: Yes, we do Chairperson, thank you.

MR CHIDI: I will speak Sotho.

CHAIRPERSON: Can you give us your full names?

MR CHIDI: I am Maphuthi Joseph Chidi.

MAPHUTHI JOSEPH CHIDI: (sworn states)

CHAIRPERSON: Please be seated. You may proceed, Mr Moloto.

EXAMINATION BY MR MOLOTO: Thank you Honourable Chairperson. I have been instructed to read this statement before this Honourable Committee as a point of departure, that is Joseph Chidi's statement of admissions. I would like to read it Mr Chairperson. It reads like this ...

MS THABETHE: Sorry, Mr Chairperson, may I intervene please.

CHAIRPERSON: Okay, please do.

MS THABETHE: Can we make copies quickly, would it be better for the Committee if we do so, or if the Committee is comfortable with him reading the statement?

CHAIRPERSON: How long is it, Mr Moloto?

MR MOLOTO: Two pages, Mr Chairperson, two pages.

CHAIRPERSON: Would it suffice if we made copies, just adjourn shortly, make copies, and probably let him confirm what is written down there?

MR MOLOTO: That is correct Chairperson.

JUDGE DE JAGER: Does anybody else have statements from clients that they could make copies in the meantime, or from victims?

CHAIRPERSON: We will adjourn for two minutes just to enable our staff to make copies.

ON RESUMPTION:

MAPHUTHI JOSEPH CHIDI: (s.u.o.)

CHAIRPERSON: Has everyone been placed in possession of a copy of the summary of statements of admissions? I think Ms Vilakazi, when we started, you were not here, could you place your name on record?

MS VILAKAZI: I am Adv Lindiwele Vilakazi, appearing on behalf of the family of the deceased, Mr Moeng.

CHAIRPERSON: Thank you. You may proceed, Mr Moloto.

EXAMINATION BY MR MOLOTO: (Cont) Thank you Mr Chairperson.

CHAIRPERSON: We have had an opportunity to read the statement before us. I think you can proceed on the basis that we have read and understood it.

MR MOLOTO: Thank you Mr Chairman. Mr Chairman, I would like to lead Mr Chidi based on this statement which is before the Committee, can I proceed.

CHAIRPERSON: I would say clarifications of aspects which you feel should be highlighted, not the entire statement, as I have said, we have read it. You may just highlight portions of where you think it needs more meat.

MR MOLOTO: Thank you Mr Chairperson. Mr Chairman, the whole issue is based on the doctrine of common purpose. Mr Chidi admits that he was part of the mob which killed the deceased, and he had the common intention to unlawfully behave in that manner and he was politically motivated as a member of UDF and the Street Committee, and along those lines, I would like to lead him to explain how did it come that he was involved in this whole saga. Mr Chidi, are you the applicant in this matter?

MR CHIDI: That is correct.

MR MOLOTO: What do you want, what do you want the Committee to do for you?

MR CHIDI: I would request this Committee to give me amnesty.

MR MOLOTO: You still remember the incident in which Mr Moeng was killed in Tembisa at Viaynene Section on the 7th of May 1986?

MR CHIDI: Yes, I do remember.

MR MOLOTO: Can you briefly just state before this Honourable Committee as to what has taken place, which led you to be part of the mob which killed Mr Moeng.

MR CHIDI: I was on the 7th of May 1986, I was in my house, then I heard people screaming from the outside. When I went outside, I saw people running towards Mr Moeng's house, then I went there to have a look what was happening there. When I arrived there, there were many people who were dousing him with petrol, and they had already set him alight.

CHAIRPERSON: Could we just start here Mr Moloto, we give the statement a number, I would say Exhibit A. You cause Mr Chidi to confirm the contents of Exhibit A?

MR MOLOTO: That is correct Mr Chairman.

CHAIRPERSON: We want it on record that he has confirmed personally.

MR MOLOTO: Thank you.

JUDGE DE JAGER: Mr Chidi, have you read this statement or was it explained to you?

MR CHIDI: That is correct.

JUDGE DE JAGER: Do you confirm that this is the truth?

MR CHIDI: That is correct.

CHAIRPERSON: You may now proceed Mr Moloto, sorry about that.

MR MOLOTO: Thank you Mr Chairman. Mr Chidi, you said you proceeded to the section where the people were advancing towards the house of Mr Moeng?

MR CHIDI: Yes, that is correct.

MR MOLOTO: And what did you observe on your arrival where the people were gathering?

MR CHIDI: They had already doused Mr Moeng with petrol and they had already set him alight.

MR MOLOTO: What was your intention when you proceeded towards those people?

MR CHIDI: It was common knowledge in the township that people who were regarded as informers and Councillors, should be burnt.

MR MOLOTO: So you knew that they might be gathering to kill or burn Mr Moeng when you advanced towards the crowd?

MR CHIDI: Yes, I already knew that it could be possible that they were going to kill him.

MR MOLOTO: What did you intend doing if you could find that Mr Moeng was still alive?

MR CHIDI: I would also be part of that mob.

MR MOLOTO: The mob to kill Mr Moeng?

MR CHIDI: Yes, that is correct.

MR MOLOTO: So in other words you had the common purpose to participate in the killing of Mr Moeng since it was the general policy that all the informers and Councillors should be killed?

MR CHIDI: That is correct.

MR MOLOTO: Can you tell this Committee whether, did you belong to any political movement during that time?

CHAIRPERSON: Wasn't he UDF, I think he said, he confirmed the statement that he was a member of the UDF, we accept that.

MR MOLOTO: Mr Chairman, I wanted him to confirm the point. It is in the statement that you were the member of the UDF and as a Street Committee, is that correct?

MR CHIDI: That is correct.

MR MOLOTO: Who was your leader in the UDF and the Street Committee movement in Tembisa?

MR CHIDI: It was Gregory.

MR MOLOTO: Do you know his surname?

MR CHIDI: I have forgotten his surname, because this incident took place some years ago.

MR MOLOTO: So what you are saying basically is that you participated in killing Mr Moeng because he was a Councillor?

MR CHIDI: I did not participate because when I arrived, they had already set him alight.

MR MOLOTO: I mean to go there and also be with the mob in killing the Councillor, you participated in that fashion because it was a general trend that all Councillors and informers should be killed?

MR CHIDI: If I had that chance, I would have participated, but unfortunately I did not get that opportunity because there were many people there.

MR MOLOTO: I see. When I say participation, I mean even by advancing towards the place where the people were gathering, so now tell this Committee when you were tried at the trial of murder, you pleaded not guilty, can you explain to this Committee as to why did you not plead guilty whereas you were part of the mob which killed Mr Moeng?

MR CHIDI: I did not plead guilty because it was not allowed for us to tell the truth to the police, even in court.

MR MOLOTO: Why did you never tell the court the truth by then?

MR CHIDI: Because the court belonged to apartheid government, even the UDF did not allow us to do that.

MR MOLOTO: So now, are you telling this Committee the truth and if that is the case, why now are you telling this Committee the truth?

MR CHIDI: I am telling this Committee the truth because this is our government and we are all equal, this is why I decided that I must come here and tell the truth.

MR MOLOTO: And if you are given amnesty, will you respect law and order, peace and justice in the country?

MR CHIDI: That is correct.

MR MOLOTO: Are you happy with the running of the country under democracy as it is now?

MR CHIDI: Yes, I do.

MR MOLOTO: How many years have you already spent in jail?

MR CHIDI: I have spent 12 years and two months.

MR MOLOTO: What is the period which is remaining?

MR CHIDI: I am left with eight years, because I was sentenced to 20 years.

MR MOLOTO: So when do you want to be released in case you are granted amnesty?

MR CHIDI: As soon as possible.

MR MOLOTO: Mr Chairperson, I think that is all that I wanted to say.

CHAIRPERSON: If we are amenable to granting amnesty, should we grant amnesty for murder and that would be the only thing for what he has been convicted of?

MR MOLOTO: I think so Mr Chairman.

JUDGE DE JAGER: There was no arson, there was no immovable property being burnt, so it cannot be arson? It could be, the burning of the deceased was the method in which the killing took place?

MR MOLOTO: That is correct. The only person, the only object which was burnt, was the deceased himself, unless his clothing is forming part of malicious damage to property.

JUDGE DE JAGER: And he was burnt while still being alive, he was set alight?

MR MOLOTO: I think that was how the necklacing was being done during those times. There was no question of killing you first and thereafter burn you, they poured petrol on your body and while you are still alive, they set you alight, and you are being killed by flames.

CHAIRPERSON: Was he burnt outside the house?

MR MOLOTO: I understand some three houses from his house, about three houses.

JUDGE DE JAGER: Could I just ask a question to the applicant, do you know Mr Shabedi?

MR CHIDI: Yes, I do.

JUDGE DE JAGER: Was he a friend of yours?

MR CHIDI: No, he was just an adult, he was older than myself, he was never my friend.

JUDGE DE JAGER: Was he an enemy of yourself?

MR CHIDI: No.

JUDGE DE JAGER: Mr Shabedi testified at your hearing, do you remember that?

MR CHIDI: Yes, I do remember him.

JUDGE DE JAGER: He testified that you pulled the deceased from his yard by holding into his belt, that you thereafter tripped him and that you placed your foot on the neck of the deceased. Is that how it happened?

MR CHIDI: That is not the truth.

JUDGE DE JAGER: Why would he be telling lies to the court?

MR CHIDI: Well, I don't know why he told the court lies. Mr Shabedi started that from the Magistrate's court and there he said he was told by the police to say that I did that.

CHAIRPERSON: Thank you. Ms Vilakazi, any cross-examination?

CROSS-EXAMINATION BY MS VILAKAZI: Thank you Honourable Chairperson. I would first like to make a follow up on the last question that was posed to the applicant. Mr Chidi, you have just testified that Shabedi at the trial said that he was assaulted by the police and forced to make the statement that he did, but Mr Shabedi also later on said that he was not telling the truth when he said that the police had assaulted him and that he fabricated that story of assault because you had intimidated him on the morning of the trial, what is your comment on that?

MR CHIDI: He said that, but after he was asked by the Judge and told that he will be sent to jail if he is telling the truth, and he changed.

MS VILAKAZI: Are you saying he was still lying that he saw you, even after being warned to tell the truth?

MR CHIDI: Yes, he was still telling lies.

MS VILAKAZI: I want to take you back to your evidence, in your evidence today you said that at the time when, after you heard people screaming and you went out, you found that Mr Moeng had already been doused with petrol and set alight, did I hear you correctly?

MR CHIDI: I said when I went outside, I saw a group of people, then when I went nearer that group, I realised that they had already doused him with petrol and set him alight.

MS VILAKAZI: I want to refer you to paragraph 5 of your statement which was handed in as part of your evidence. In that statement, I will read, it says -

So you said in this statement, you are saying that you were part of the group that chased him, in the statement it is not mentioned that you found that he was already doused with petrol at the time when you arrived there, why is there this controversy?

MR CHIDI: In my statement I never said that I chased him. What I said is that I heard people screaming and then when I went outside, I saw this group of people and then I went there.

MS VILAKAZI: Maybe I should help you to recall, what you have just said is what you said when you were led by your legal representative, and I am saying in your statement, in paragraph 5 of the written statement that was submitted, you do not indicate that you arrived at the spot when the deceased was already doused with petrol. In this written statement in paragraph 5 you are saying that you were amongst the people who chased the deceased from his house and poured him with petrol? This is not in line with what you are saying, so which is the correct version?

MR CHIDI: What is the truth is that I heard people screaming and then I went outside and followed those people, and others were already dousing him with petrol. It is not the truth that I was chasing him together with this group.

MS VILAKAZI: In other words, you are saying the written statement is not correct?

MR CHIDI: Well, I don't know.

MR MALAN: Sorry for interrupting you, Mr Chidi, Mr Moloto handed in a statement, a hand-written statement which you signed yesterday and this was put to you by Mr de Jager and he asked you whether you confirmed the contents and I think you said yes, Judge de Jager. Do you have a copy of the statement before you? Do you recognise that statement? I don't want you to deal with the contents now, you can see this document, on page 2, there is a signature and it was signed before Mr Moloto, is that signature in the right hand corner on the second page, is that your signature?

MR CHIDI: Yes, that is my signature.

MR MALAN: Did you sign it yesterday?

MR CHIDI: Yes. No, I signed it today.

MR MALAN: You signed it today only, it seems to have been dated the 22nd, but let's accept it is today.

MR MOLOTO: It is the 23rd.

MR MALAN: Is it the 23rd?

MR MOLOTO: Yes.

MR MALAN: So you signed it today?

MR CHIDI: That is correct.

MR MALAN: Did you give this information to Mr Moloto?

MR CHIDI: Yes.

MR MALAN: Did he read the statement out to you again?

MR CHIDI: Yes, he did.

MR MALAN: Were you happy, did you tell him that anything in the statement is not correct?

MR CHIDI: I was happy the way it was written.

MR MALAN: Now the question that was put to you now, if you look at paragraph 5, that is the last paragraph on the first page. You say that -

You were amongst the people who chased him from his house and poured petrol on him and set him alight? You continue to say -

But there you say you were amongst the people who chased him from his house, is this correct or is it not correct?

MR CHIDI: I think it is wrong there where it says I chased him, because when I went outside, the people were already there.

MR MALAN: And they had already been burning him? That is what you told us now in your oral evidence?

MR CHIDI: They were running towards his house, that is the time when I went outside from my house, after hearing the screaming.

MR MALAN: And your house is very close to his house?

MR CHIDI: Yes, that is correct, we are on the same line.

MR MALAN: They run passed your house, you hear them screaming, you run out?

MR CHIDI: That is correct.

MR MALAN: And when you get there, he has already been pulled out of his house and burnt?

MR CHIDI: They were dragging him outside and pouring petrol on him, next to his gate.

MR MALAN: Mr Chidi, the idea is not to catch you out, the idea is to get to the truth. Let me make it clear to you, we want to facilitate the granting of amnesty for which we must get a full disclosure and a truthful disclosure of what happened, so you must tell us everything exactly as it happened. I have now three versions. The one is the statement here that you chased him out of his house, paragraph 5, the second one was your oral evidence saying when you got out and ran there, they had already set him alight, and when I asked you now, you gave a third version saying when you got there, they were pouring petrol over him.

CHAIRPERSON: Dragging him and pouring petrol.

MR MALAN: Yes, dragging him and pouring petrol over him. Now, really sit back for a moment, gather yourself and give us the true story. I am sorry for the interruption there, but we need to find out what was the exact truth, what happened, and the family wants to know what happened and exactly what your involvement is. Please, can you now again tell us exactly how did you get involved?

MR CHIDI: I was in my house when I heard the shouting outside, when I went outside, I saw a group of people running towards the deceased's house. I also went there because I wanted to know whether they were going to his place, then I realised they were going to his house and other people were already dragging him outside, pouring petrol on him and setting him alight. That is what I saw.

MR MALAN: You may continue Ms Vilakazi.

MS VILAKAZI: I want to make a follow up on what you have just said for the sake of clarity. You said you heard the noise and then you saw a group running towards the house and realised that they were going to his house. Is that what you said?

MR CHIDI: That is correct.

MS VILAKAZI: I just want clarity, at the time when you arrived at the mob, what was happening?

MR CHIDI: They were dousing him with petrol and setting him alight. That is when I arrived.

MS VILAKAZI: What was your role, what did you actually do?

MR CHIDI: There were many people around him, and I did not get a chance to participate.

MS VILAKAZI: So you did not do any positive act towards the killing of Mr Moeng?

MR CHIDI: Yes, but I was part of that group and my intention was to do what they did, to him.

MS VILAKAZI: Now let's go back to another aspect. When your legal representative asked you did you know that Mr Moeng was going to be killed by the mob, you said yes, do you recall that?

MR CHIDI: Yes, I do remember.

MS VILAKAZI: When did you know that Mr Moeng was going to be killed?

MR CHIDI: He was discussed in meetings because he was a Councillor, but I did not know the exact date that he was going to be attacked.

MS VILAKAZI: Was there a decision taken that he is going to be killed?

MR CHIDI: No, there was no decision taken that he was going to be killed, it was only said that he was a Councillor, but the date was never discussed on which he would be killed.

MS VILAKAZI: I don't get you clearly. You say, you earlier said there was no decision that he was going to be killed, and then now you are saying there was no date set as to when he was going to be killed. Was there a decision that he was going to be killed?

MR CHIDI: It was only discussed that he was an informer and he must be eliminated. It was never said specifically that he was going to be killed.

MS VILAKAZI: Were you an active member of the UDF?

MR CHIDI: I did not have a membership card, I was only a supporter of the UDF.

MS VILAKAZI: Did you take part in any of its activities?

MR CHIDI: Yes, I did.

MS VILAKAZI: I have no further questions, thank you.

CHAIRPERSON: Before you come in, Ms Thabethe, what did you understand when they said he should be eliminated?

MR CHIDI: My understanding was that maybe they didn't want him to stay in that area, they wanted to chase him away.

CHAIRPERSON: Thank you, Ms Thabethe?

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair. Mr Chidi, you spoke of a meeting that was held where a decision was made that Mr Moeng should be eliminated, when did this meeting take place? When before he was actually eliminated?

MR CHIDI: I cannot remember the date.

MS THABETHE: Not the date, would you say a week before he was eliminated, was it a matter of days before he was killed?

MR CHIDI: It can be two weeks before his death.

MS THABETHE: And who held this meeting?

MR CHIDI: The meetings were also attended by other people from other townships, not only people from Viaynene Section. I didn't know other people who attended the meetings.

MS THABETHE: So would I be correct to say was it a meeting held by the community as opposed to a meeting that - a UDF meeting?

MR CHIDI: Yes, it was a community meeting.

MS THABETHE: How did it come about that Mr Moeng's name was discussed in that meeting?

MR CHIDI: It is because he was a Councillor.

MS THABETHE: So, just for the record, what did it mean then if he was a Councillor? What was the implication of him being a Councillor?

MR CHIDI: Because we were boycotting the Councillors at that time, we were boycotting the rent, and the Councillors were people who were forcing the community to pay rent, paying rent to the old regime, and they were also sell-outs, they were regarded as sell-outs by the community.

MS THABETHE: My last question, how many people would you say were there when Mr Moeng was killed?

MR CHIDI: There can be around 500, that is my estimation.

MS THABETHE: Thank you Mr Chair, I have no further questions.

CHAIRPERSON: Thank you Ms Thabethe. Mr Malan?

MR MALAN: Didn't you hold any office at that time in the UDF or in the community?

MR CHIDI: I was a member of the Street Committee.

MR MALAN: In the application that you made to the TRC, which is on page 2 of the Bundle, I don't know whether Mr Moloto has the bundle there for you, you say that you were a scapegoat of the community and that a false case was made against you for robbery and attempted murder of a SAP at Tembisa. Do you recall having made that statement?

MR CHIDI: Yes, I do remember making that statement.

MR MALAN: What did you intend telling us there?

MR CHIDI: I did not trust even the person who represented me, I wanted Mr Moloto to come and represent me.

MR MALAN: Is this a false statement? What are you telling us, I don't follow you?

MR CHIDI: Yes, the statement is false.

MR MALAN: Did you tell Mr Moloto that that statement was false?

MR CHIDI: Yes, I did discuss that with him.

MR MALAN: Why did you not tell us when you started with your application?

MR CHIDI: Do you mean today sir?

MR MALAN: Today, yes.

MR CHIDI: I thought maybe Mr Moloto will tell you about that, and he did not ask me about that.

MR MALAN: Now, when you appeared at the trial, were you represented by Mr Kassiem?

MR CHIDI: That is correct.

MR MALAN: Who appointed him as your lawyer, did you choose him or did the UDF give him to you as a lawyer, how did it come about?

MR CHIDI: I was, he was chosen by the UDF.

MR MALAN: You gave him certain information which he put before the court, do you remember that?

MR CHIDI: Yes, I do.

MR MALAN: And you also gave evidence, do you remember giving evidence?

MR CHIDI: Yes, I do remember.

MR MALAN: If you look at page 12 of the Bundle, if Mr Moloto could just show you that, which is an extract from the judgment of the Judge, where he quotes the statement, it is referred to as Exhibit B. If you look at the top paragraph -

Do you remember that was handed in at the trial?

MR CHIDI: Although I am not sure, but I do slightly remember.

MR MALAN: Okay, then in that statement, what was put before the court, Mr Kassiem put before the court, a statement where you said that you saw a large group of young persons gather at the corner of the street where you lived. In other words they were standing there, they were gathered there, that is paragraph 1, you can check there, I will read it to you, paragraph 2 you say -

Can you recall that?

MR CHIDI: Yes, I do remember.

MR MALAN: Why did you not tell us about this today?

MR CHIDI: In court, we are afraid to tell the truth, because we did not have a trust in those courts, it is only now that we want to tell the truth before the TRC. In that court, we were not telling the truth at all.

CHAIRPERSON: The question is why didn't you tell us that today, what you have said there? We understand that you have trust in the TRC.

MR MALAN: Let me explain to you my difficulty. What you put before the court, was more of a personal involvement because at court you already acknowledged that you participated in some discussion in that gathering about the burning of the Councillor, you joined this group who discussed amongst each other the burning of the Councillor and you didn't trust the court, you tell us. You come before the TRC and you don't tell us of any such personal involvement, you tell the TRC that people were running passed you, you followed them, when you arrived, Mr Moeng was already being poured with petrol and set alight. You don't tell us about any prior involvement? You see Mr Chidi, you must make a full disclosure of your whole involvement. Can you comment on this discrepancy?

MR CHIDI: I am telling what I have told the TRC today, but other things I don't remember, because this incident took place many years ago.

MR MALAN: Thank you Chair, I have no further questions.

CHAIRPERSON: Judge de Jager? Thank you. Any re-examination Mr Moloto?

MR MOLOTO: Nothing, Mr Chairman, thank you.

CHAIRPERSON: Thank you Mr Chidi, you may stand down.

CHAIRPERSON: Are you in a position to argue, Mr Moloto? Before we do that, we apparently have victims here. Ms Vilakazi, are you going to tender evidence from the victims?

MS VILAKAZI: My instructions are that there is just a message to the Committee and to the applicant, but no evidence will be tendered on behalf of the victims.

CHAIRPERSON: Are they not opposing?

MS VILAKAZI: With regard to whether to oppose or not, my instructions are that it is left to the Honourable Committee to determine whether the applicant qualifies for amnesty or not.

CHAIRPERSON: Mr Chidi, could you come back, because we believe that there is a member of the family who wants to give a message and you should also hear the message. Could you come back, I am sorry about that. My apologies, Mr Moloto.

MAPHUTHI JOSEPH CHIDI: (s.u.o.)

MR MOLOTO: Thank you Mr Chair.

CHAIRPERSON: Whom are you calling Ms Vilakazi?

MS VILAKAZI: It is just a message that I have been asked to convey, I am not going to call any family member.

CHAIRPERSON: Oh, it is going to be conveyed by you?

MS VILAKAZI: Yes.

CHAIRPERSON: You may proceed.

MS VILAKAZI: Mr Chidi, in my consultation with the family of Mr Moeng this morning, Mrs Moeng asked me to convey this message to you that your contribution towards the killing of her husband, has hurt her feelings very much and she has not been able to recover from that. She finds it very difficult in her heart to say that she will come to a stage where she will forgive you, but on the other hand, she understands the purpose of these proceedings being that there should be reconciliation, and also the fact that as a christian, she is bound to forgive. But personally, it is very difficult for her to say that she is ready to forgive you.

She also wants you to know that the death of her husband has resulted in difficulties in the home because Mr Moeng was a breadwinner, now Mrs Moeng is left with three children that she has to look after. Her eldest child who is a daughter is disabled, she is mentally disabled, so therefore she is unable to find work for herself, she will not be able to work. Her second child, a son, is unemployed and the third child is at school. She has an increased financial burden as a result of the death of her husband, she wants you to know that you have contributed towards that and as a result of your participation, she finds life very difficult even today. That is all, Mr Chairman.

JUDGE DE JAGER: Sorry, was the deceased a doctor? What was his position? I seem to remember I have read somewhere Dr Moeng?

MS VILAKAZI: No, I do not have such instructions, perhaps, if necessary I could enquire from the family.

CHAIRPERSON: But from the record it transpires that he was running some business, wouldn't that be correct, the court record?

MS VILAKAZI: My instructions were that he was employed at that time.

CHAIRPERSON: After the evidence tendered, would you feel that you've got to take further new instructions?

MS VILAKAZI: Perhaps I should do so.

CHAIRPERSON: How much time would you need?

MS VILAKAZI: I think ten minutes would suffice.

CHAIRPERSON: We will give Ms Vilakazi ten minutes to take further instructions after evidence has been led by Mr Chidi. We will adjourn for ten minutes.

MS VILAKAZI: I am indebted to you, Mr Chair.

ON RESUMPTION:

MAPHUTHI JOSEPH CHIDI: (s.u.o.)

CHAIRPERSON: Ms Vilakazi, what is the position?

MS VILAKAZI: Thank you Honourable Chairperson, for the opportunity to consult. There is just one aspect that I was asked to put and emphasise before the Committee, otherwise, I am still not going to call any member of the family to give evidence. That aspect relates to the health of Mrs Moeng. I am not sure whether I should raise that factor now, or I could leave it for my closing argument, I seek direction from the Honourable Committee.

CHAIRPERSON: You cannot argue on something which is not before us.

MS VILAKAZI: Okay, in that respect then, I would put it to the Committee. Mrs Moeng has indicated that she became hypertensive, she suffers from high-blood pressure and she was not suffering from that before the death of Mr Moeng, and it was diagnosed immediately after the death and she has been receiving treatment ever since, even now, she is still undergoing treatment. She goes for monthly check-ups and she has to pay that, for the medical expenses, out of her own pocket. It is because of that, she would have liked to have said something before the Committee, but she is not in a good state of health, to be able to convey whatever message that she had, herself, that is why she asked that I convey the messages on her behalf. Thank you Honourable Chair.

CHAIRPERSON: Thank you, may you convey to her that we have heard you and we sympathise with her.

MS VILAKAZI: That I will do, Honourable Chair. I take it, Mr Moloto, you've got no further evidence to lead?

MR MOLOTO: Mr Chairman, I thought in the light of this message which was conveyed, it would be proper for me to consult with Mr Chidi, to find out as to whether he doesn't have some apologetic response to the whole issue. I don't know whether it is necessary Mr Chairman.

CHAIRPERSON: Should we adjourn for that?

MR MOLOTO: I think so, Mr Chairman.

JUDGE DE JAGER: The trouble is, I've got a real problem with having to ask him whether he wants to say something about an apology. I think it should be spontaneous and he shouldn't be urged to ask for an apology. If he wants to say something out of his own heart, he can say so. If he should be needled to say something, I think it is better he does not say it.

MR MOLOTO: Mr Chairman, I understand it, but I think it would be proper to advise him of his rights and obligations, not to urge him to apologise. Just to give him an opportunity to indicate, because after the evidence or the conveyance was led before this Committee, I have never indicated to him that he needs to have some reaction. It would be in the interest of justice, Mr Chairman, to give me a one minute adjournment so that I can consult with him, to something of that sort, Mr Chairman.

CHAIRPERSON: In view of Ms Vilakazi having said that something wants to be said to him personally, hence I called him back, we will just stop the microphones and give you a minute to enquire whether he wants to say something or not.

MR MOLOTO: Mr Chidi would like to say something, Mr Chairman.

CHAIRPERSON: Thank you Mr Moloto. You may proceed, Mr Chidi.

MR CHIDI: Okay. I would ask Mrs Moeng to ... (tape ends) ... that have resulted as a result of his death, I ask her to forgive me.

CHAIRPERSON: Is that all, Mr Chidi?

MR CHIDI: Yes, that is all, Chair.

CHAIRPERSON: Thank you Mr Chidi.

CHAIRPERSON: Mr Moloto, are you in a position to argue?

MR MOLOTO: I am, Mr Chairman.

CHAIRPERSON: Okay. Ms Vilakazi, are you in a position to argue?

MS VILAKAZI: I am, Mr Chairman.

CHAIRPERSON: Ms Thabethe, are you in a position to argue?

MS THABETHE: Always, Mr Chairman.

CHAIRPERSON: Thank you. We will give Mr Moloto the first chance.

MR MOLOTO IN ARGUMENT: Mr Chairman, my position is that I am submitting that it will be in the interest of justice, peace and reconciliation and in accordance with the main objectives and aims of the TRC, to pardon Mr Chidi and give him amnesty because he has disclosed at least to the maximum point, his guilt and the conditions and circumstances under which the death of Mr Moeng took place, it was during the political upheaval of UDF and other political forces and also it was at the prime classical period of apartheid regime, when the dying horse was kicking the hardest.

Mr Chidi, although he had some discrepancies, the discrepancies cannot overwhelm the disclosure as he has stated that in actual fact, he had the common purpose, he had the intention to come and join the mob and kill Mr Moeng, that is the bottom line. As to whether he joined the mob at a certain point, but he admitted that the ultimate aim was that he would like to see Mr Moeng being eliminated like other Councillors and informers, and therefore he has tried by all means to explain some discrepancies about the trial, the previous instructions to Adv Lopeng and the discrepancies between his version and the statement that was put before this Honourable Committee and under these circumstances, my humble submission is that it shall be in the interest of justice, truth and reconciliation of our nation, if Mr Chidi is granted amnesty as applied for, more especially that the victims' council did not deem it fit to actually oppose, but to just convey a message, and under those circumstances, I am submitting that Mr Chidi be granted amnesty as applied for, Mr Chairman. Thank you.

MR MALAN: Mr Moloto, in your argument you state that he disclosed the maximum point of his guilt. If I understand you correctly, he is simply joining the mob and him also wanting the individual dead constitutes that guilt, do I understand you correctly?

MR MOLOTO: That is my understanding.

MR MALAN: Now, in terms of the doctrine of common purpose, shouldn't there be more of an involvement before a person could be found guilty on common purpose?

MR MOLOTO: Mr Chairman, my understanding of common purpose is that the accused person should have formulated the intention to participate and commit the crime, and as to whether he would be given an opportunity to do that, is something else. If Mr A intends to join the people who are chasing Mr B, and at a certain point, he is overrun by the people and Mr B, he doesn't get the chance to catch Mr B before he dies, and thereafter, he arrives where Mr B has already been killed, and he stands and says "yes, you did a good job, if I could have been around, I could have done this and this", I believe Mr Chairman, that is sufficient to form a common purpose, because the common purpose according to my understanding is that the intention, the ability must be there, the only lack of opportunity is not material.

So in this matter specifically, Mr Chidi intended to follow those people and also go and participate even if he could have been given a can or a tin of petrol, and a box of matches, he could have ignited it and burnt the deceased person. That is what I understand by common purpose, Mr Chairperson.

CHAIRPERSON: By him being a bystander when Mr Moeng was burnt, would we say he had a common purpose because the meetings he attended, there was the elimination of Mr Moeng and in further probing, what was meant by the elimination, he said that Mr Moeng must leave the area. That is the act he associated himself with and what did he associate himself with when Mr Moeng was burnt?

MR MOLOTO: Mr Chairman, Mr Chidi has associated himself with the political meetings where there were some decisions taken about the general approach of elimination of sell-outs, informers and Councillors and inter alia he understood that Mr Moeng should leave the area, but that might have been to say leave the area or be killed, because if Mr Moeng is no more wanted in the community, because he was a Councillor and an informer, once Mr Moeng leaves the area, the complaints that the community had on him, would be automatically be removed. It is automatic that if Mr Moeng should not or is not removed, leaving the area, the alternative was to be eliminated and in the form of any sort of killing, that is how I understand that he should leave the area, not only that he should leave the area and if he does not leave the area, he would be left in peace. It is a matter of he should leave the area or else he should be eliminated by other methods, like killing.

JUDGE DE JAGER: But did anybody request him to leave the area, there is no evidence about that?

MR MOLOTO: Mr Chairman, there was no evidence to the effect that there were - those people were requested to leave the area, it was just a matter of complying with what the people are demanding, either to leave the area of to wait for the worse or the worst. There was no decision to say "inform these people to leave the area, but the way things were being done, it was, the whole situation was to leave the victim with no option but either to stand and risk his life, or to leave the area as others did leave the area. Some of them are still alive because they have left the areas.

JUDGE DE JAGER: Isn't it perhaps the truth that the word eliminate didn't mean to leave the area, the word eliminate and he understood it to be "we will kill you"?

MR MOLOTO: Mr Chairman, I am speaking with subject to correction, if I am going to put the words in Mr Chidi's mouth, but Mr Chidi is a lay person, he is not a man who is knowledgeable in politics, to an extent that he can understand some semantics of the words used during those times or the legal terms. When he was asked what did you understand by elimination, he said that he should leave the area, but I understood it to say that he was mentioning as an option, but the option, the other option of not leaving the area was clear that it was to wait for dying.

CHAIRPERSON: So elimination is kill?

MR MOLOTO: That is correct Mr Chairman.

MR MALAN: Mr Moloto, why did you not lead that evidence, why didn't you lead it then in re-examination, why did you choose not to do any re-examination if that was left open?

MR MOLOTO: Mr Chairman, I will have to say I am sorry for that, I now realise my omission to get clarification by way of re-examination. It just slipped my mind Mr Chairman, with due apology, I could have got some clarification on that issue, because I realise now that it is an issue which is creating some doubts as to whether what was meant by the elimination or the leaving of the area.

MR MALAN: May I just summarise the essence of the evidence, because I am still not satisfied about the argument that you put before us on the common purpose doctrine. Is the essence of the evidence not then even if we accept the elimination, that he knew, if we accept your argument now, that he knew that at some stage, if Mr Moeng would not leave the area, he would be killed? Furthermore that no date was discussed, no decision was yet taken to kill him, that he then heard the people running and shouting, screaming passed his home, that he joined the mob when all the actions pertaining to the killing of Mr Moeng had already been fulfilled by those involved. That he could not get close to them, and that in fact he was not involved in the killing, but it carried his approval, isn't that the essence of his evidence?

MR MOLOTO: It is so Mr Chairman, but with a little bit of qualification about the date of decision to kill Mr Moeng. As I understand it, the general trend was that there was a general decision by the political organisations that all informers, sell-outs and Councillors should be eliminated.

MR MALAN: I think that is accepted, I am simply talking about the applicant's personal involvement, not whether it was right or wrong to kill Mr Moeng. For the purposes, we accept that it was policy to kill such people, my question relates to the apparent lack of personal involvement in the decision to kill and in the act of killing Mr Moeng. The essence of his evidence is that he joined the crowd somewhere at the back, when everything had been done, he joined the crowd when Mr Moeng had been dragged out of the home, doused with petrol and set alight. He was an onlooker on his own evidence?

MR MOLOTO: Mr Chairman, according to my understanding, starting with the decision, the decision had been taken generally that the people should be eliminated, and he was part of the general decision, but the only thing is that since informers and sell-outs were different people, some other decisions of specific dates and operations were taken in his absence, but the main one he was part of it, now he sees people passing and going towards Mr Moeng's house, in his mind he knew that this might be the day, because generally the people of Mr Moeng's calibre should be eliminated. He joins them, he joins them and he found that they are now killing, they are dousing with petrol, they are burning, he does not even dissociate himself from that crowd.

In actual fact in his own statement today here, he says "unfortunately the people were so many in front of me, to an extent that I could not have a chance to participate fully", in other words he was prohibited, he was forbidden a chance to participate with the burning or doing anything. In other words, if he could have been nearer before Mr Moeng was doused with petrol, he could have taken a stone or something and also participated in the form of an assault. That is how I understand it to be a common purpose of a man who intended to do whatever has been decided some time ago, to eliminate the Councillors. That is how I understand it, Mr Chairman.

MR MALAN: May I put a last question to you, what are we to make of the fact that he discloses more of a personal involvement to the court, which he didn't trust, as is contained in the record, than he disclosed to the Amnesty Committee?

MR MOLOTO: Mr Chairman, Mr Chidi has already indicated that he did not trust those courts and whatever was said, was nothing else but a lie. You will find ...

MR MALAN: No, no, no, I got that from Mr Chidi, the question is despite the fact that he didn't trust the courts, he shared with the courts more of a personal involvement, of joining this group, discussing the killing, then going back to his home and eventually joining up with the crowd, here he denies the discussion with the group in front of his house, and he says that is a lie. I am asking you what are we to make of a situation where he now denies part of a personal involvement which he did not share with us, but he shared with the courts? Isn't that suspicious?

MR MOLOTO: Mr Chairman, I cannot say it is suspicious as he has already tried to explain his position. I cannot even say whatever he has disclosed to the court by then, was the true reflection or it was the truth than today. What I realise is that there are some discrepancies between the two versions, so as to which one is more truthful than another, that remains a (indistinct) as far as I am concerned, Mr Chairman.

MR MALAN: Thank you.

CHAIRPERSON: So when he saw Mr Moeng doused with petrol and set alight, it satisfied his desire that Mr Moeng should die?

MR MOLOTO: That is correct, that is how I understand it.

JUDGE DE JAGER: There is only one thing in fairness to the family of the deceased, there was no evidence before us that he was in fact an informer? There might have been a decision to kill informers, but on the evidence before us, he was killed because he was a Councillor and not because he was an informer, he might have worked with the government at that stage, in a certain sense of being a Councillor, but in fairness, I think we should put it on record that there is no evidence that he was in fact an informer, informing against his own people at that stage.

MR MOLOTO: Mr Chairman, with due respect, the time of the commission of this event, it was the time of the political upheaval in the country, in such a way that there were so many slogans, so many definitions of some other terms, the informer of those times, the man who was regarded as an informer, there was not a clear definition or distinction between a sell-out, an informer and a Councillor.

JUDGE DE JAGER: Mr Moloto, that may be so, I am talking about the evidence here. There was no evidence that he was an informer, there was evidence that he was acting as a Councillor and that he had to be removed because he was a Councillor, and that was the only evidence before us. I don't want to know what people might have thought, if we haven't got that evidence before us.

MR MOLOTO: Thank you Mr Chairman.

CHAIRPERSON: Before you go further, the evidence further goes that he went against the wishes of the people, that he wanted people to pay rent when the people didn't want to pay rent. I think that is the evidence before us?

MR MOLOTO: That is correct Mr Chairman. That is why I am saying the elimination of Mr Moeng was based on his Councillor membership, as a member of the Council, against the wishes of the people by then, that was sufficient to give him a death sentence as far as I am concerned.

CHAIRPERSON: Thank you Mr Moloto.

MR MOLOTO: Thank you.

CHAIRPERSON: Mr Vilakazi?

MS VILAKAZI IN ARGUMENT: Thank you Honourable Chairperson. May I start by indicating that the fact that the

family of the deceased, Mr Moeng, has not gone out to say that they are opposed to the application, does not in any way affect the question as to whether or not the applicant has satisfied the requirements of the Act with regard to whether amnesty should be granted or not. The requirements are three-fold. The first being that there must be compliance with regard to the application itself, that the application should comply with the requirements of the Act.

Inasfar as that is concerned, I should leave it to the Committee to make a finding with regards to whether the application was properly submitted or not.

CHAIRPERSON: It was submitted on the 9th of April 1996, well within the time.

MS VILAKAZI: Thank you. Thank you Honourable Chairperson, on that. The second requirement is that there should be full disclosure.

Inasfar as that is concerned, may I point out that the Committee cannot be in a position to accept that there has been full disclosure if there are questions with regard to whether or not the information put before it, is reliable information. Therefore the credibility of the applicant is an important consideration with regard to whether a finding shall be that there has been full disclosure or not.

The credibility of the applicant cannot be said to be impeccable, the applicant has put different versions to the Committee. Mr Moloto has intimated that, and the applicant himself has said that the evidence he gave in court, was a false evidence.

Let us suppose that the Committee accepts that that evidence was false in all material respects. The Committee has been presented with oral evidence by the applicant as well as written evidence in the form of a statement submitted to the Committee and which statement was confirmed by the applicant. In as far as the two are concerned, the applicant in his statement said that he was amongst the group that chased the deceased and poured petrol to the deceased and setting him alight. In essence it is saying that he was part of the group that killed the deceased.

In his oral evidence the applicant said and he has said that more than once, that he only arrived when the deceased had already been poured with petrol and set alight. That presents problems with regard to which version must be accepted as the correct version, whether the statement as it stands, and as confirmed by the applicant, should be accepted or whether his oral evidence that he only arrived after the deceased had already been poured with petrol, should be accepted to be the correct version.

MR MALAN: I think Ms Vilakazi, that he did in oral testimony say that paragraph 5 was wrong, it was a mistake.

MS VILAKAZI: If that is accepted, if the Committee accepts that ...

CHAIRPERSON: We haven't accepted anything at this stage, we want to hear your submissions.

MS VILAKAZI: My submission is that the applicant has confirmed the contents of the statement, the statement was submitted on behalf of the applicant and it is a statement that was signed by the applicant this morning and he has accepted it formally. The statement contradicts the oral evidence that he has given, and on that basis, it is my submission that the applicant should not be found to be a credible witness.

CHAIRPERSON: With that contradiction, would you say still there is no full disclosure because I think the premise from which you moved was on full disclosure, before you addressed us on credibility?

MS VILAKAZI: My, the premise on which I base the question of credibility was that the Committee can only find that there has been full disclosure if it finds that it can rely on the evidence of the applicant. If the credibility of the applicant is questionable, it is my submission that the Committee cannot find that there has been full disclosure. With regard to the question of the participation of the applicant in the light of the doctrine of common purpose, from the evidence of the applicant, the oral evidence that he has given, he did not take part in the setting alight, in the chasing of Mr Moeng, he did not take part in the dousing of Mr Moeng with petrol, he did not take part in the setting alight of Mr Moeng. In response to a direct question that I asked him, as to whether he has actively participated in the killing of Mr Moeng, he in his own words said no, he did not participate actively. Now, perhaps I could ask the direction of the Committee with regard to the actus reus with regard, on the doctrine of common purpose.

CHAIRPERSON: No, you are arguing, you cannot give direction at this stage, we want to listen to your submissions.

MS VILAKAZI: My submission is that for the applicant to be found to have participated or to have been guilty of common purpose, he must have actively participated in one way or another in the act of killing Mr Moeng.

CHAIRPERSON: Is association with the act not sufficient? The five points mentioned in the case of S v Mkedezi 1989 (1) 689?

MS VILAKAZI: I would submit that the points may not be as vivid as it may be required of me, at the present moment.

CHAIRPERSON: He must have associated himself with the act perpetrated, he must have associated himself in one way or another in the participation in this instance of the meetings that were held in regard to the elimination of Mr Moeng? Thirdly, whether he made, whether he actively doused him with petrol and set him alight, those are some of the three amongst the five which are relevant for our purposes?

MS VILAKAZI: I am indebted to you Mr Chairman, for that. Now, from the evidence of Mr Moeng, he did not actively participate in the action of killing Mr Moeng, he only arrived at the scene when he was doused with petrol and set alight, so there was - the only association from what he has said, was the result and not the action of killing Mr Moeng. He only associated himself with the fact that Mr Moeng was killed, and he accepts that because he was a Councillor.

CHAIRPERSON: His presence and I am referring to the evidence, that he could not lay a hand on Mr Moeng, but he was present there and he associated himself with the actions of the perpetrators, wouldn't it satisfy the requirements of common purpose?

MS VILAKAZI: It is my submission that it does not. At the most he was just a bystander.

CHAIRPERSON: You may proceed.

MS VILAKAZI: The other point which I submit it also pertinent, is the question as to whether or not a decision was taken to kill Mr Moeng. There has been much deliberation with regard to that. My submission is that from the understanding of the applicant, was that Mr Moeng should be removed from the community. That is what the applicant himself said. It was not his understanding that Mr Moeng should be killed.

CHAIRPERSON: Don't you think at this stage we are not confused about the definition of elimination because we have heard so many definitions of elimination, that I think a dictionary should be written that we understand the word fully.

MS VILAKAZI: I do concede that there is a confusion, but my submission is that the applicant ...

CHAIRPERSON: Let's concentrate on his version, let's leave him as a person.

MS VILAKAZI: Yes, the version of the applicant was that it is not his version that it was decided that Mr Moeng should be killed. Therefore, on that basis, he cannot be regarded as having associated himself with the killing, a decision to kill Mr Moeng. That would be my submission with regard to the question of ...

JUDGE DE JAGER: Just to come back to this. He testified that he understood this to mean that he should leave the area, is that correct?

MS VILAKAZI: That is correct, yes.

JUDGE DE JAGER: But he also testified that while they were busy killing him, he was prevented from getting at the deceased, because he would have poured the petrol and lit the fire, but that is not asking a person to leave, that is - he associated him there with the fact that this person is being killed. That was a different understanding of elimination if that was the elimination he had in mind.

MS VILAKAZI: If we accept the version of the applicant as he put it, then I would submit that if we accept that he associated himself with the killing at the time when the killing took place, that association was not linked to an earlier decision, because his understanding of the earlier decision was never that of, that Mr Moeng should be killed.

JUDGE DE JAGER: Yes, I follow you.

MS VILAKAZI: The next question that arises is with regard to whether there is a political objective. In as far as that is concerned, the applicant has put evidence to the effect that he was a member of the UDF and he was also a member of the Street Committee.

On behalf of the family, I would submit that the family is not in a position to dispute that and that would close my submissions with regard to whether the three requirements have been complied with. But then just on a final note to say that my submission is that the applicant has not complied with the requirements for amnesty. The requirement having not complied with is being the requirement with regard to full disclosure, having commented on the credibility of the applicant. I would end my submission by referring the Committee to the affect of the death of Mr Moeng on the family. With the purpose of assisting the Committee in determining whether or not the family should be regarded or should be declared as victims should amnesty be granted.

JUDGE DE JAGER: Yes, I think if we would grant amnesty, we would in my point of view, I would agree that Mrs Moeng should be a victim and the children, at a stage when they have no father and they have no support and those who need support, should also be victims.

MS VILAKAZI: In the light of that, I will make no further questions and I will close.

MR MALAN: May I just ask of you Ms Vilakazi, whether Mrs Moeng had made a statement to the Human Rights Violations Committee of the TRC, do you have any knowledge about that?

MS VILAKAZI: I do not have any knowledge of that.

MR MALAN: I think I can also say that the Act also allows us, we are in a situation to find if we are satisfied with the political situation, that Mrs Moeng may be a victim as described in the Act, even if amnesty is refused. The one does not necessarily go with the other, thank you Chair.

CHAIRPERSON: Ms Thabethe?

MS THABETHE IN ARGUMENT: Thank you Mr Chair. I would like to make submissions as well with regard to the family, that they be recommended for reparations in this unfortunate incident, the sad incident which occurred to them.

With regard to the applicant and the application before us, I would submit that the offence that was committed, is indeed political for the reasons of evidence that has been led before the Committee this morning. With regard tot he question of whether the applicant participated for purposes of common purpose, in killing Mr Moeng, my submission Members of the Committee, is that I would argue that he did participate for purposes of common purpose.

I would just like to refer to page 12 of the judgment which was referred to by Mr Malan, the Honourable Committee Member and submit that it appears that in court, the applicant removed himself from the act in that he says when he came out of his house, he heard, that is in paragraph 2, when he was walking towards the group, he heard some of them shouting that they should burn down the Councillor, and it does not indicate that he actually participated in the discussion that was taking place in that group.

MR MALAN: Sorry, before you proceed there Ms Thabethe, the question really related to not disclosing that discussion in the group. He denied such a discussion.

MS THABETHE: My submission is it does not necessarily mean it was a discussion, he just heard people shouting, it wasn't necessarily a discussion per se.

MR MALAN: But his evidence here was that he heard people screaming, running passed his home whereas in court his evidence was that the group of people gathered outside his house and that he went and joined them. That was the question. He shows more of a specific involvement in court, at least on part of the activities, and the run up than he shares here, and the question is why, why would he disclosure that in court and not here?

MS THABETHE: Actually Honourable Committee Member, that is what I am submitting too, that I don't read the judgment to be saying that. First of all it does not say that they gathered outside his house, it says on paragraph 1, they were gathered at the corner of the street which he lived in, so that does not necessarily ...

MR MALAN: Can you read paragraph 2 there please Ms Thabethe, where he says "I walked towards this group and I heard some of them shouting that they should burn the Town Councillor".

MS THABETHE: Precisely.

MR MALAN:

MS THABETHE: And he says he didn't join the crowd when it moved ...

MR MALAN: No, then he continues to say "I moved back to my house", but here he does not share that part of his knowledge of hearing the crowd and of joining them, before the act. The evidence here is his only involvement is hearing the screaming, he goes out and on reaching them, they had already performed the act of killing?

MS THABETHE: Mr Honourable Committee Member, I agree with you that he gives a totally different version today, but I wanted to make my submissions with regard to what was said in court, that to me it does not appear that the applicant as you have put it, seems to be involving himself. The way I read it, even in court, he doesn't seem to be involving himself because he says he heard them talking and then he says when they went away, he did not join the group, he went back home, and to me that does not mean he associates himself to what was happening there. That was my point, not that I am saying he is saying the same thing he said in court.

CHAIRPERSON: We've got your point.

MS THABETHE: Yes, just to proceed Mr Chair. My submissions are that from the evidence that was led today, the applicant associates himself because at some point, I am not sure whether it was during cross-examination, he says when he heard the group from his house, he went outside and he could see that they were going towards Mr Moeng's house, and then he made a decision, I submit to join that group.

I remember a question was asked, I think by Honourable Mr Malan, as to him to clarify exactly what took place, and he says he went to the group and the group, when he arrived there, they were still pouring and setting him alight. I didn't hear him to be saying they had finished committing the murder on him and that way I would submit that by going there and joining the group, knowing that they were going to Mr Moeng's house, and by the fact that he went there and found the group in the process of pouring petrol and setting him alight, he was involved and it can be said that he participated for common purpose.

CHAIRPERSON: Are you saying if we read paragraph 5 of the statement, other than the words that he did that by pouring the petrol, but he was able to even get closer, that is the association you are speaking of with the correction he made in respect of paragraph 5?

MS THABETHE: My submission Mr Chair, yes, would be that he indicated that he went there and joined the group and when he joined the group, they were pouring petrol and setting him alight. He had the intention, that way associating himself with what was happening there. The evidence wasn't that when he arrived and joined the group, they had already finished pouring the petrol and setting him alight, making him maybe an accessory after the fact.

CHAIRPERSON: No, it wouldn't be an accessory after the fact.

MS THABETHE: Whatever. Whatever, I am indebted to you, Mr Chair.

CHAIRPERSON: Thank you.

MS THABETHE: Yes. So my submission would be it makes him to be associated to what was happening there, and therefore he was personally involved for purposes of common purpose. Those are my submissions, Mr Chair, unless the Committee Members want me to respond to something, I have no further submissions.

CHAIRPERSON: Mr Malan? Mr de Jager? Thank you Ms Thabethe.

MS THABETHE: Thank you Mr Chair.

CHAIRPERSON: Any reply Mr Moloto?

MR MOLOTO IN REPLY: Mr Chair, my short reply is that I am agreeing totally with the last submissions by my colleague in that at all material times and for all intends and purposes, the applicant had a common purpose to commit the crime

together with the mob, and therefore he qualifies for the amnesty because he did a full disclosure along those lines. That is my reply so far, Mr Chair, thank you.

CHAIRPERSON: Ms Vilakazi argued that before we can look at full disclosure, we must transpose what he said to us here and that she referred to his credibility and if there are doubts about his credibility, then there is no full disclosure.

MR MOLOTO: Mr Chair, I've got a problem as to whether should the applicant prove his case beyond reasonable doubt or on a balance of probabilities, because the question of credibility cannot be over-emphasised. It can be taken into consideration Mr Chairman, but it cannot overshadow all other aspects of the whole version of the applicant. There might be some discrepancies here and there, forgetfulness, a long time that the event has happened, inability of the applicant to clarify some other issues due to some other reasons, that should not overshadow and be over-emphasised in this matter, Mr Chairman. That is my submissions.

CHAIRPERSON: Anything?

MR MALAN: I think just for the purpose of the record here, that a full disclosure is by necessity a truthful disclosure, would you agree with that?

MR MOLOTO: I agree with that, Mr Chairman.

CHAIRPERSON: Thank you Mr Moloto. This would conclude the application of Mr Chidi. Once more, on behalf of the Amnesty Committee, we thank Mrs Moeng to have found it in her heart to open the wounds she suffered in 1986 to come here before the Committee and show her confidence in the Committee, that she would abide by the decision which the Committee would eventually reach. We know it was a painful exercise and for you to come back again for us to open those wounds, takes great courage, we thank you for that, Mrs Moeng. The Committee will reserve its decision, it will be made known to all interested parties in due course, thank you very much.

MS THABETHE: Thank you.

CHAIRPERSON: We shall adjourn for lunch for 30 minutes, thank you.

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

CHAIRPERSON: Mr Padi, we see that you are back in the driving seat, who are we hearing?

MR PADI: That is correct Mr Chair. We will be hearing the matter of Mr Mnyakeni.

CHAIRPERSON: Do we have anyone, Ms Thabethe, for the victims?

MS THABETHE: Mr Chair, I would like to put it on record, that we could not trace the victims because they were living in a shack and according to our investigator, he went there, there aren't even shacks there so what was done is that there was an advertisement with their names, but we haven't had any response from anybody.

CHAIRPERSON: Are the shacks still there?

MS THABETHE: Sorry Mr Chair?

CHAIRPERSON: Are the shacks still there?

MS THABETHE: The shacks are no longer there, Mr Chair.

MR MALAN: Was it possible to establish the identity of Absolom Mnyakeni? No, I asked you Ms Thabethe, I asked you yesterday to establish that for us?

MS THABETHE: Mr Chair, what I did yesterday is that when I came out from our meeting, Mr Padi had left, but I phoned him and he said he was going to ask the applicant and inform you.

MR MALAN: Okay, did you follow up with him?

MS THABETHE: He said he was going to ...

MR MALAN: No, I asked you whether you followed up with him?

MS THABETHE: Followed up with?

MR MALAN: To get feedback from Mr Padi?

MS THABETHE: No, we had agreed that he was going to give you feedback, Mr Chair.

MR MALAN: But he did not do any feedback to you, is that what you are telling us?

MS THABETHE: Yes, Mr Chair.

MR MALAN: You know what the demands are in terms of advising victims if at all it could be established who they are and perhaps ascertain their whereabouts?

MS THABETHE: I beg your pardon?

MR MALAN: You know what the demands of the Act are in terms of the rights of victims and the treatment of victims and the policy in terms of finding victims?

MS THABETHE: Yes.

MR MALAN: Mr Padi, could we hear from you?

MR PADI: Yes, Honourable Committee Member, I tried to ascertain from Mr Mnyakeni if he was at all related to Absolom Mnyakeni and he said he was not. That is what I agreed upon with Ms Thabethe, that I would ascertain from the applicant.

MR MALAN: Brenda Ngabo and Mongezi Dunga?

MR PADI: These are - may I state that the applicant is presently in prison, I was not asked, I couldn't ascertain whether these people are known or where there whereabouts are.

MR MALAN: How did you manage to ascertain the information about Mr Absolom Mnyakeni?

MR PADI: I only enquired from the applicant. I asked him if he knew him, if he was related to him, which was what I agreed upon with Ms Thabethe.

MR MALAN: Okay, thank you.

CHAIRPERSON: Ms Thabethe, the Committee asked you yesterday that you should obtain a report from the Investigative Unit of what attempts they made, were you able to get such a statement from them?

MS THABETHE: Mr Chair, with regard to this matter, the investigator was Mr Oupa who I called yesterday to come to the Committee's members to explain what happened in this incident. He indeed did so in front of the Honourable Member, Mr Malan. So, the answer is yes, I did.

CHAIRPERSON: Was he able to give a report, a written report?

MS THABETHE: No, the report was not written, it was verbal.

CHAIRPERSON: You are implicated, Mr Malan, would you wish to have legal representation?

MR MALAN: No, I have this difficulty because it is the task of the analysts to tell us exactly what was done, and really we talked about I think, written reports from the analysts about what they have done. It is not only sending someone to a place, but it is also trying other ways of establishing the whereabouts of people, dockets at some later stage, because the case was heard way after the incident. But I don't think Chair, we have much of an option, but to continue with this. One would still though want whoever was the analyst for this matter, to tell us what more they have done, because the victims may have a comeback to the Committee, thank you.

JUDGE DE JAGER: Did we advertise in this matter?

MS THABETHE: Yes, we did advertise, because what happened, I think they got the names of the victims from the docket and the victims used to stay in a shack, so our investigator went to that place where apparently the shacks were, and when he went there, the shacks were no longer there, and that is when we advertised.

JUDGE DE JAGER: Yes. Could we have a copy of the advertisement?

MS THABETHE: I asked Ms Linda Mdayi to provide me with a copy, I phoned her yesterday.

JUDGE DE JAGER: Yes, because we must at least have prove that we have tried to advertise, or that we did advertise, and we have proof of that.

MS THABETHE: Yes, I phoned her yesterday, I can try again to get that copy today.

JUDGE DE JAGER: I cannot, why didn't she send it yesterday or this morning?

MS THABETHE: Well, maybe that is my fault, Mr Chair.

JUDGE DE JAGER: Yes.

MS THABETHE: I would like to take that responsibility because I didn't make a follow up.

JUDGE DE JAGER: Okay, right.

CHAIRPERSON: We would however say before we give our decision, we would need a written report from Oupa and a copy of the advert from Mdayi.

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: Thank you. Whom are we hearing Mr Padi?

MR PADI: This is the amnesty application for Simon Bahlezi Mnyakeni.

CHAIRPERSON: What language would he want to speak?

MR PADI: That would be in Zulu.

CHAIRPERSON: Please rise and please give us your full names?

MR MNYAKENI: Simon Bahlezi Mnyakeni

SIMON BAHLEZI MNYAKENI: (sworn states)

CHAIRPERSON: You may be seated. Mr Padi?

EXAMINATION BY MR PADI: Thank you Mr Chair. This is the application for amnesty by the applicant for the murder of, for the incident which occurred on the 21st of March 1992, which incident involved the killing of two people, the kidnapping and assault of additional two people.

CHAIRPERSON: You said the killing of two people and what further?

MR PADI: The kidnapping and assault of two other people, Your Worship.

CHAIRPERSON: Does he know their names?

MR PADI: The people who were killed Your Worship, were Absolom Mnyakeni and Patrick Nkhumalo.

CHAIRPERSON: And the kidnapping and assault?

MR PADI: The person who was kidnapped and assault Your Worship, it is known from the records, her name is Brenda - I am still trying to get the surname if I can be pardoned Mr Chair.

CHAIRPERSON: Can you not find out from the applicant himself?

JUDGE DE JAGER: Page 17. The person, first person murdered on the 21st of March at Daveyton, Absolom Mnyakeni. On the same date and place Patrick Nkhumalo was murdered. The persons who were kidnapped was Brenda Ngabo and Mongezi Dunga? (transcriber's own interpretation)

MR PADI: Thank you, I am indebted to Honourable Committee Member. That will be the application as it will be presented to the Honourable Committee.

CHAIRPERSON: Does Mr Mnyakeni know these people other than what appears on the record, does he personally know that these are the names of the people?

MR PADI: Let me confirm that with him, Your Worship.

CHAIRPERSON: Thank you.

MR PADI: The applicant confirms that he knows that these are the people for which he was arrested and he is applying for amnesty, in relation to crimes committed against these people.

CHAIRPERSON: Thank you. You may proceed.

MR PADI: Thank you Mr Chair. Mr Mnyakeni, can you have a look at the application form which I am putting before you, I am referring to the application form of the applicant. Do you recognise this application form?

MR MNYAKENI: Yes.

MR PADI: Who completed it for you or did you complete it yourself?

MR MNYAKENI: Yes, at Modabi prison.

MR PADI: Were you assisted by any other person?

MR MNYAKENI: No, I completed it on my own.

MR PADI: Thank you Mr Mnyakeni.

JUDGE DE JAGER: Does he serve an effective sentence of 22 years?

MR PADI: Yes, he is serving an effective sentence of 22 years.

CHAIRPERSON: You can accept that the application is properly before us.

MR PADI: I appreciate that, thank you Mr Chair. Mr Mnyakeni, can you give us a bit of your background in relation to what organisation you belong to and what position did you hold in that, if any?

MR MNYAKENI: I was a member of the ANC Youth League, I was the Chairperson of the Youth League at Mandela Squatter Camp.

MR PADI: Where is this Mandela Squatter Camp situated?

MR MNYAKENI: At Daveyton.

MR PADI: Were you a Vice-Chairman of the Youth League at the time of the incident in question, that is on the 21st of March 1992?

MR MALAN: He said he was the Chairman.

CHAIRPERSON: No, deputy.

MR MALAN: But in oral evidence he now said he was the Chairman.

MR PADI: Can I get clarity from him on that? What position did you hold in the ANC Youth League?

MR MNYAKENI: I was the Deputy.

MR PADI: Thank you.

CHAIRPERSON: Would you speak up because some of the people can hear Zulu directly, and for my benefit too, I know Zulu and hear it and speak it, so would you just speak up like Mr Padi is speaking, Mr Malan is speaking up, myself speaking up, Judge de Jager also speaking up.

MR MNYAKENI: I was the Deputy Chairperson of the ANC Youth League.

MR PADI: Were you a Deputy Chairman of the ANC Youth League at the time of the incident in question, that is on the 21st?

MR MNYAKENI: Deputy Chairman.

MR PADI: Sorry? Yes, my question is were you a Deputy Chairman on the 21st of March 1992?

MR MNYAKENI: That is correct.

MR PADI: Mr Mnyakeni, you are applying for amnesty for incidents which occurred on this day, can you relate to the Committee the background which led to these incidents?

MR MNYAKENI: To explain briefly, on the 20th of March 1992 we were patrolling, checking for weapons, knives as part of protecting the community. Duhla and other people arrived and they normally carried firearms in the township at which we would warn them not to do so, because they used to harass the community with these weapons.

MR MALAN: Can you tell us who is Duhla?

MR MNYAKENI: I only knew him as Duhla, one of the people who was killed.

MR MALAN: Was it Mr Mnyakeni or Mr Nkhumalo?

MR MNYAKENI: As I mentioned before, I do not know their proper names, I just knew those names that were used in the township.

MR PADI: You may proceed Mr Mnyakeni, what happened thereafter?

MR MNYAKENI: Those firearms were removed from them and thereafter they remained in the township as one of the residents.

MR PADI: Who removed the firearms from them and why?

MR MNYAKENI: It was the comrades and the community. The community was complaining because those firearms were used throughout the night so the community was not at ease.

MR PADI: Can you explain in what way were the firearms used?

MR MNYAKENI: They would just use the firearms to shoot randomly on their way from shebeens. We then removed them from those persons and stored them with other community weapons.

MR PADI: Mr Mnyakeni, for the sake of clarity, if you say they were just shooting at random, were they shooting at people or were they just shooting in the area?

MR MNYAKENI: Sometimes it would happen that a person would be injured or killed when they did this, that is why we warned them not to continue.

MR PADI: You may proceed, Mr Mnyakeni.

MR MNYAKENI: On the 20th, they were still waiting for one of them to return from prison and on his return, they then managed to go and kill one of our comrades, Mzibenzi on a Friday evening.

MR PADI: The people ...

JUDGE DE JAGER: Could I just have something clear here? These people on coming from shebeens were shooting at random? Would they shoot at ANC people at random, at Inkatha people, or even people not belonging to any political party?

MR MNYAKENI: They were opposed to the ANC, because they used to collaborate with the police.

JUDGE DE JAGER: Were they criminals shooting at random and coming from shebeens?

MR MNYAKENI: We did not have many criminals at the Mandela Park, but they used to be armed with R1 firearms which are used by the police.

MR PADI: To follow up on that, Mr Mnyakeni ...

MR MALAN: Just before you proceed there, you say they were opposed to the ANC, why were they allowed to stay in Mandela Squatter Camp, wasn't that an ANC area?

MR MNYAKENI: It was a community area dominated by the ANC.

MR MALAN: Yes, and if you knew that they were killing people and they were opposed to the ANC, you knew they were killing, shooting at random at people, killing people, you found them with weapons, you say it is R1 weapons, why did you allow them to stay in the township, you disarm them and say "that is fine, you can stay"? Is that what you are telling us?

MR MNYAKENI: We wanted to make them one of us and behave as acceptable members of the community.

MR MALAN: Although they were opposed to the ANC, shooting at the ANC?

MR MNYAKENI: Yes, we were trying to build them up. It is just that we did not appreciate, we were opposed to the actions.

MR MALAN: Thank you Mr Padi.

MR PADI: Thank you Honourable Committee Member. Mr Mnyakeni, would you consider these people as some form of a gangster, were they working in a group?

MR MNYAKENI: They were a group working with the police, but I would not call them criminals. They would harass the community, stopping people from town, checking for firearms from those persons and the police would visit them at their homes.

MR PADI: In what way were they working with the police?

MR MNYAKENI: We deduced that from the fact that when we held meetings, they would arrive and a short while thereafter, the police would also come to disturb our meeting and disrupt our meeting. They also carried walkie talkies.

MR PADI: Were these people in any way regarded as police informers by the community?

MR MNYAKENI: That is correct. The community ultimately felt that these people were working with the police and they were uneasy about it.

MR PADI: Okay, you may continue. You were still telling us about, you were at the point where they were waiting for one of their members to come from prison you said. Can you continue from there.

JUDGE DE JAGER: Why was he arrested?

INTERPRETER: Why was he arrested.

JUDGE DE JAGER: Why was this man arrested?

MR MNYAKENI: Housebreaking.

JUDGE DE JAGER: Did the police arrest those people working with them?

MR MNYAKENI: No, they were not arrested.

JUDGE DE JAGER: Now how was he arrested then, this member?

MR MNYAKENI: He was arrested in Delmas.

MR PADI: You may continue Mr Mnyakeni.

MR MNYAKENI: On a Friday ...

CHAIRPERSON: I am not getting any translation.

INTERPRETER: Pardon me.

MR MNYAKENI: On a Friday as we were walking along with a brother-in-law to one of them, on that day, they came to fetch the brother-in-law, his name was Luqi, on the pretence that his grandmother had passed away. They then killed one of our comrades, Mr Mzibenzi because we had confiscated their firearms, that was their revenge.

JUDGE DE JAGER: Sorry, I didn't follow your previous answer, they came to fetch Luqi on the pretence that his mother died or what?

MR MNYAKENI: We were with Luqi, we were sitting at a certain house in the squatter camp and they arrived in a white kombi saying that they had come to fetch Luqi because his grandmother had died at Sundral. That is how they removed him from our midst. Thereafter we went out to patrol and we ended up remaining at one spot until the following day. As we were ...

MR PADI: When you keep referring to us and we, am I understanding you correct to say that you are referring to the ANC Youth League or would you be referring to members of the community? Can you clear that up please.

MR MNYAKENI: It was members of the ANC Youth League who were patrolling at night.

CHAIRPERSON: How many were you?

MR MNYAKENI: Around 12 to 15 of us.

MR PADI: Can I take you back a little bit, Mr Mnyakeni. You said that you confiscated the guns of these people who were staying in Mandela Camp together with yourselves. What was the relationship between say the ANC Youth League and these people after you confiscated their weapons?

MR MNYAKENI: After that, most of them left, it was only one remaining, it was Duhla and his girlfriend, Jane, who remained. The rest returned to Sundral and they only came back when their comrade was killed.

MR PADI: Did they all have shacks in Mandela Park?

MR MNYAKENI: There were four shacks.

MR PADI: You say after you confiscated their weapons, they all left Mandela Park except for the one that you are referring to as Duhla and his girlfriend?

MR MNYAKENI: That is correct.

MR PADI: Okay, you may continue Mr Mnyakeni.

MR MNYAKENI: They committed that murder on a Friday by killing Mzibenzi. His throat was slit and his breasts was also removed and he was scraped around the face with a bottle. On the Saturday morning we were planning to go visit Mzibenzi and on our way we met members of the Street Committee who enquired about where we were going and we told them that we were going to see Mzibenzi at which point they informed us that he had been killed. We then went to the scene of the murder and on arrival, we encountered a lot of police. By that time his body had already been removed. We then ...

MR PADI: Who was Mzibenzi, was he a member of the Youth League?

MR MNYAKENI: Yes, he was one of our comrades.

MR PADI: Was he not on patrol with you on the Friday of the 20th?

MR MNYAKENI: No, he was not. He was at home.

MR PADI: Okay, you may proceed.

MR MALAN: Sorry, did Mr Mzibenzi have any office in the Youth League?

MR MNYAKENI: No.

MR MALAN: He was an ordinary member?

MR MNYAKENI: Yes, that is correct.

MR MALAN: He was not the Chair?

MR MNYAKENI: No.

MR MALAN: Thank you.

MR PADI: You may proceed, what happened thereafter Mr Mnyakeni?

MR MNYAKENI: On our arrival, we discovered that his body had been removed, and we enquired from Tandi, his girlfriend as to what happened. She said she did not know anything, we should enquire from Dungwane.

CHAIRPERSON: Who was Dungwane?

MR MNYAKENI: The person he was with on the day that he was killed.

MR PADI: And what happened thereafter?

MR MNYAKENI: Dungwane then stated that they were on their way to Vicks and they had come upon Duhla and the other people from Sundral. These people enquired from them as to where their firearms were and he responded by telling them to go to the community and enquire from them, at which point they stabbed him and killed him. We asked from Dungwane as to how come he survived and he showed us a wound on his neck, where he had also been stabbed. We then left and proceeded towards a shop whereupon we came upon other comrades and the community. And they were in the company of the people who were alleged to have killed Mzibenzi. We removed these people, we took them to their shack. On our arrival there, we found a blooded knife and Mzibenzi's firearm. It was then decided that they should be taken to the sports ground and they were taken there and assaulted.

MR PADI: The firearm that you found, how did you know that it was Mzibenzi's firearm?

MR MNYAKENI: We knew because it was difficult to fire the weapon, you would have to press it very hard.

CHAIRPERSON: You may proceed.

JUDGE DE JAGER: But didn't you confiscate all his guns?

MR PADI: The gun that they are referring to is Mzibenzi, it is the one who was, the one who was killed.

JUDGE DE JAGER: Oh. The gun you now are referring to, is Mzibenzi's gun?

MR PADI: Yes.

MR MNYAKENI: That is correct.

CHAIRPERSON: Proceed Mr Mnyakeni.

MR MALAN: You say that you knew it was his gun, because that weapon, it was difficult to fire it, you had to press very hard?

MR MNYAKENI: You had to press it very hard.

MR MALAN: Is there any other basis on which you could see that it was Mzibenzi's gun, except pressing it very hard?

MR MNYAKENI: We knew it because it also had selotape on the back.

MR MALAN: Tell us about this selotape. Why didn't you tell that to us? Where was the selotape at the back, where at the back?

MR MNYAKENI: On the butt because it was an old firearm, so it was stuck there to prevent some part of the weapon from falling out.

MR MALAN: Did you load the weapon and fire it to find out whether it was his gun, that you had to press it very hard, after you found it?

MR MNYAKENI: No, we did not. We knew his firearm because he was one of us.

MR MALAN: My question really is, you knew his firearm because it had the selotape around the butt, not because it was very difficult to fire it?

MR MNYAKENI: Yes, we knew it. We used to see him carrying it all the time.

MR MALAN: What kind of firearm was this?

MR MNYAKENI: A 9mm.

MR MALAN: What make?

MR MNYAKENI: It was the thicker, longish type, a 12 shooter.

MR MALAN: You don't know what make it was?

MR MNYAKENI: I just know that it was a 9mm firearm.

MR MALAN: Thank you, Mr Padi.

MR PADI: Thank you Committee Member. You may proceed, what happened after that Mr Mnyakeni?

MR MNYAKENI: The community decided that they should be taken to the sports ground and on our arrival there, they were assaulted and burnt to death.

MR PADI: Did you take part in this assault.

JUDGE DE JAGER: Who were taken to the sports grounds?

MR MNYAKENI: The person that I knew was Duhla.

JUDGE DE JAGER: Anybody else?

MR MNYAKENI: No, that was the only person whose name I knew because he was staying there.

MR PADI: How many people were taken to the sports ground?

MR MNYAKENI: Two.

MR MALAN: Where did the community decide to take them to the sports ground?

MR MNYAKENI: We were at their shack.

MR MALAN: It wasn't the community at the shack, it was you and a few others?

MR MNYAKENI: No, it was the comrades and the community.

MR MALAN: How many people were at the shack?

MR MNYAKENI: There were too many, I cannot estimate the number.

MR MALAN: All right, thank you.

MR PADI: Mr Mnyakeni, maybe just to clarify this, when you left sis Tandi's place, you went looking for the people, for the people who have allegedly killed Mzibenzi?

MR MNYAKENI: That is correct.

MR PADI: And you met with other people, some of whom were members of the Youth League, coming with these people, and some members of the community, is that your evidence?

MR MNYAKENI: That is correct.

MR PADI: Does that clarify that? Thank you Chair. Yes, you may proceed then, what happened after that?

MR MNYAKENI: They were assaulted and doused with petrol and burnt at the sports ground. As they were still being burnt, the police approached and the rest of us fled and we left them there at the sports ground.

MR PADI: Did you take part in the assault of these people?

MR MNYAKENI: Yes, I did.

MR PADI: How did you participate?

MR MNYAKENI: I used an iron bar to assault them and I also took part in burning them.

MR PADI: Where did you get this iron bar?

MR MNYAKENI: I picked it up along the road.

MR PADI: Okay, you say that you participated in setting them alight. Did you participate in the setting alight of both people?

MR MNYAKENI: Yes, I will say so because they both died after being set alight.

CHAIRPERSON: No, the question is did you participate, don't say "I can say so", did you or did you not?

MR MNYAKENI: I only took part in burning the first person, the other person was set alight by other comrades.

MR PADI: Can you explain to the Committee your role, what is it exactly that you did in setting this one person that you are referring to, alight?

MR MNYAKENI: I assaulted him with an iron rod, after admitting that he was fetched from Sundral to kill comrades here at Mandela Squatter Camp. Thereafter I doused him with petrol and set him alight.

MR PADI: You are saying that after hitting him with the iron, he confessed that he was brought from Sundral to come and kill comrades, is that what you are saying?

MR MNYAKENI: That is correct, he confessed to that effect.

MR PADI: Did he say who instructed him to do that?

MR MNYAKENI: He said he was fetched by Duhla.

JUDGE DE JAGER: Can we just finish off something, you said you struck him with an iron, is that correct?

MR MNYAKENI: That is correct.

JUDGE DE JAGER: Didn't you use an axe?

MR MNYAKENI: No, it was only amabuthu who carried such weapons. I only had an iron bar.

JUDGE DE JAGER: Were you instructed to go back home and fetch petrol?

MR MNYAKENI: No, when the people went to the sports ground, some of them had their petrol in their possession.

JUDGE DE JAGER: At the trial they gave evidence that you were instructed by Agness to go and fetch petrol? Didn't that happen?

MR MNYAKENI: No, the only thing that Agness told us was that Mzibenzi had been killed, and that was when we went to Mzibenzi's home to verify that information. I only got the petrol that was in the sports ground, had been brought by the people, and I took it to douse him with.

JUDGE DE JAGER: Yes, I see further on that they said that she asked you to go home and fetch petrol, but you then said "no, that is too far" and you went to a red motor car where you fetched, where you found petrol? Is that correct?

MR MNYAKENI: No, the petrol was not fetched from that car.

JUDGE DE JAGER: Where did the petrol come from?

MR MNYAKENI: It was brought by other comrades.

JUDGE DE JAGER: Thank you. Didn't you force the deceased to drink petrol?

MR MNYAKENI: No, I did not do that, I just doused him with it and set him alight.

JUDGE DE JAGER: Did anybody force them to drink petrol?

MR MNYAKENI: I do not recall any person forcing them to drink petrol. They were just doused with it and set alight, because they were tied up.

JUDGE DE JAGER: All right, thank you.

CHAIRPERSON: Did Rusty or Mgerigera do it? Do you know them?

MR MNYAKENI: I do know them.

CHAIRPERSON: Were they present?

MR MNYAKENI: I was with Mgerigera.

CHAIRPERSON: You may proceed Mr Padi.

MR PADI: Thank you Honourable Chair. You were still saying that the other one said that it was Duhla who fetched him to come and kill comrades at Mandela, is that correct?

MR MNYAKENI: That is correct.

MR PADI: Duhla is the one who was together, the one who was still being assaulted together with the person who was making a confession?

MR MNYAKENI: That is correct.

MR PADI: Then the person that you are referring to, the person that made a confession who made a confession, he is the one that you doused with petrol and set alight?

MR MNYAKENI: That is correct.

MR PADI: Then what did you do thereafter, Mr Mnyakeni?

MR MNYAKENI: Thereafter we were told that a hippo was approached, and we fled to our shacks.

MR PADI: Was that the end of your involvement in the killing of these two people?

MR MNYAKENI: Yes, that was the end.

MR PADI: Mr Mnyakeni, you were charged and also convicted for other crimes of kidnapping of Mongezi Dunga and Brenda Ngabo. Can you explain to the Committee what happened to these two people?

MR MNYAKENI: I do know Mongezi, but I do not recall kidnapping him. I only know about Brenda who was my girlfriend and she was one of those people, she was always in the company of those people and I used to warn her about that.

MR PADI: Do you know if she was kidnapped, if she was forcibly removed from wherever she was and taken to the grounds where these two people were killed?

MR MNYAKENI: We took her, for her to point out the homes of the people who resided at Sundral but we did not kidnap her.

MR PADI: That was before the incident at the grounds?

MR MNYAKENI: That was after the incident, I met a certain lady by the name of Mapole.

MR PADI: Mr Mnyakeni, you told us that after setting the one person alight, you heard that a hippo was coming and that is when you ran away. At what stage did you get Brenda Ngabo, can you try to explain to the Committee the sequence of events that led to you taking Brenda and instructing her to go and show you where the others were?

MR MNYAKENI: We met her on the way from the sports ground to Mapole's and she approached. I called her because I knew she knew those people who killed Mzibenzi.

MR PADI: Was Brenda your girlfriend at this stage?

MR MNYAKENI: Yes.

MR PADI: And in relation to Mongezi, do you know if he was kidnapped or if he was taken by any force from any place, whatever?

MR MNYAKENI: No, I was only shocked when he testified in court that he had been kidnapped by me. I do not recall having him in my possession or being anywhere near him.

MR PADI: Could it be possible Mr Mnyakeni, that Mr Mongezi was kidnapped by other people, other than you?

MR MNYAKENI: It is possible, because there were many comrades at the Mandela Camp.

MR PADI: Do you have anything to say Mr Mnyakeni, to the relatives of the people ...

JUDGE DE JAGER: Before you come to that, about the kidnapping of Mongezi Dunga, you were not involved in any kidnapping of Dunga? Is that correct?

MR MNYAKENI: No, I did not take part in kidnapping him.

JUDGE DE JAGER: You don't know even if he was kidnapped or not?

MR MNYAKENI: I only heard it from him as he gave his testimony in court.

JUDGE DE JAGER: So you didn't make any attempt to associate with people kidnapping him or anything like that?

MR MNYAKENI: I do not even know who kidnapped him.

JUDGE DE JAGER: And Brenda, you say that she wasn't kidnapped?

MR MNYAKENI: I called her and she came on her own free accord.

JUDGE DE JAGER: You didn't force her to go with you?

MR MNYAKENI: No, we requested her to show us where those people resided.

JUDGE DE JAGER: And you never assaulted her or slapped her or joined in an attack on her?

MR MNYAKENI: I did assault her.

JUDGE DE JAGER: Did you assault her?

MR MNYAKENI: Yes.

JUDGE DE JAGER: Why?

MR MNYAKENI: She was at that time not being truthful, she maintained that she was not coming from Sundral, where in actual fact, she was.

CHAIRPERSON: How did you assault her?

MR MNYAKENI: I slapped her.

MR MALAN: Did you attack her with a knife?

MR MNYAKENI: No, I did not have a knife on me on that day.

JUDGE DE JAGER: Who stabbed her?

MR MNYAKENI: I do not know with regards to the other comrades.

CHAIRPERSON: Did you see that she was injured by stabbing?

MR MNYAKENI: I did see at some point and I told the comrades that they should let her go.

CHAIRPERSON: Did you see any visible injuries on her?

MR MNYAKENI: I saw one on her thigh.

MR MALAN: When did you observe this injury on her thigh?

MR MNYAKENI: She came to show me that injury.

MR MALAN: When?

MR MNYAKENI: At that time when we were talking to her.

MR PADI: Thank you. Mr Mnyakeni, do you have anything that you want to say to the families of the people that you killed or to the victims of your actions of that particular day?

MR MALAN: Are they here? I am speaking to you Mr Padi, are they here?

MR PADI: I don't have any knowledge of that.

MR MALAN: Does he know them?

MR PADI: I haven't ascertained that.

MR MALAN: Can they be identified? Is there any way this message could get to them?

MR PADI: I have no knowledge of that.

MR MALAN: Now why do you want him to say something to the families?

MR PADI: So it forms part of the record in case their identities are ascertained in any way Honourable Member.

CHAIRPERSON: They will only know our decision, they will not see the record.

MR PADI: As it pleases the Committee.

CHAIRPERSON: Because you should have been aware when we started, wanting to know from Ms Thabethe about the victims, what efforts were made to trace the victims and all that, which suggested that the victims were not present today.

MR PADI: Yes. Thank you Mr Chair. That will be all.

CHAIRPERSON: Thank you. Ms Thabethe?

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair. Mr Mnyakeni, I just want to ascertain, maybe I didn't hear correctly, exactly what were the reasons for killing these people, the two people that you killed?

MR MNYAKENI: They were killed by the comrades and for the reason that they also had a relationship with the police.

MS THABETHE: Do you know if they belonged to any political organisation?

MR MNYAKENI: From my observation of their actions, they were working in collaboration with the police, they were always supported by the police.

MS THABETHE: Do you know Mr Mngomezulu, Foreman Mngomezulu?

MR MNYAKENI: Yes, I do.

MS THABETHE: Was he also present when these people were killed?

MR MNYAKENI: There were many members of the community present, I did not take note of who was present or not. I met Mr Mngomezulu at the police station when he was arrested for the same crime.

MS THABETHE: Yes, and then with regard to the kidnapping, you have just given evidence that you did not kidnap the others, except your girlfriend, is that correct?

MR MNYAKENI: That is correct.

MS THABETHE: Now, my question is how would you say that the kidnapping of your girlfriend is political?

JUDGE DE JAGER: Yes, but he didn't kidnap her, he called her and she came out of her free will?

MS THABETHE: So, it is a denial of kidnapping, would you say Mr Mnyakeni?

JUDGE DE JAGER: Yes, it would be an assault, he slapped her, but he did not admit kidnapping her.

MS THABETHE: Thank you Mr Chair, I withdraw my question. I have no further questions Mr Chair, thank you.

CHAIRPERSON: Thank you Ms Thabethe. Mr Padi, before you re-examine, I would give Members of the Committee to ask questions if they have any so that when you re-examine, you cover everything. Mr Malan, do you have anything?

MR MALAN: This comrade of yours that was killed, Mr what is his name, Mzibenzi, you say that he had no office in the Youth League? Was he not the Secretary of the Youth League?

MR MNYAKENI: He was still to be elected.

MR MALAN: So he was not the Secretary?

MR MNYAKENI: That is correct.

MR MALAN: Was he related to Mr Foreman Mngomezulu?

MR MNYAKENI: No, they were not related, but sis Tandi, Mzibenzi's girlfriend was related to Mr Mngomezulu.

MR MALAN: Sorry, whose girlfriend was related?

MR MNYAKENI: Mzibenzi's girlfriend.

JUDGE DE JAGER: How was she related?

MR MNYAKENI: She called him uncle.

MR MALAN: There was evidence at the trial that he was the son-in-law of Mr Mngomezulu, in other words he was married to his daughter?

MR MNYAKENI: I did not hear that in court.

MR MALAN: When did you get all these admissions from the people that you burnt, that they collaborated with the police, that they had killed Mzibenzi, when did they admit to this?

MR MNYAKENI: On that day when we were with them, they even said that they can be arrested, but they are going to be released.

MR MALAN: Did you confront them, did they admit to killing your comrade?

MR MNYAKENI: Yes. And they mentioned others who had been in their company.

MR MALAN: Did they admit to mutilating his body?

MR MNYAKENI: Yes.

MR MALAN: You never saw the body?

MR MNYAKENI: Yes, I did not, but I only heard from sis Tandi.

MR MALAN: Now, can you just explain to us what exactly, what parts were removed? How was his body mutilated?

MR MNYAKENI: His throat was removed, also his breast was also removed. His face was also scraped with a glass object or metal object.

MR MALAN: His throat was removed? How was that done, do you know, I don't want to get into the gory, but I don't understand that.

MR MNYAKENI: Sis Tandi told me that it had just been cut out and his left breast was also cut.

MR MALAN: These two, or just tell me is Brenda and Mongezi in any way related? Mongezi Dunga and Brenda? Are they of the same family or not?

MR MNYAKENI: No, I do not know, but they resided in one shack.

MR MALAN: Brenda and Mongezi in one shack?

MR MNYAKENI: Yes.

MR MALAN: And these two people that were killed, that is Duhla and the other one, Mr Mnyakeni and Nkhumalo, where were they living?

MR MNYAKENI: They all come from Sundral.

MR MALAN: Yes, but where were they staying in Mandela Squatter Camp? You took Brenda to point out where they were living, how far was that shack from Brenda's shack?

MR MNYAKENI: It was quite a distance because you had to cross several streets.

MR MALAN: So these two people weren't living with Brenda and Mongezi?

MR MNYAKENI: No. Duhla resided in his shack with Jane.

MR MALAN: Do you know that Mr Mngomezulu gave evidence that Mzibenzi was his son-in-law, I think he referred to him, Mzibenzi was his son-in-law? Is that not correct?

MR MNYAKENI: I would say he could have called her his daughter, because she used to call him uncle.

MR MALAN: Can you tell us the role of the Street Committee in this killing. Were you a member of the Street Committee?

MR MNYAKENI: The Street Committee was made up of all the people who used to be in a position to solve community problems. We as the Youth were not in a position to do that. That is why those people were elected in the Street Committee.

JUDGE DE JAGER: So you were not a member of the Street Committee?

MR MNYAKENI: I was in the Youth League, not the Street Committee.

JUDGE DE JAGER: And Mngomezulu, what was his function? Was he in the Youth League too?

MR MNYAKENI: I will say he was a member of the Street Committee, because he used to attend their meetings.

MR MALAN: Who is referred to as Samuel Mnyakeni, do you know the name?

MR MNYAKENI: No, I do not.

MR MALAN: Do you know Simon Nkuna?

MR MNYAKENI: Yes, I saw him in court.

MR MALAN: Is he not Mnyakeni, Samuel Mnyakeni?

MR MNYAKENI: No I don't know.

MR MALAN: And you are not referred to as Samuel Mnyakeni? Thank you Chair, I have no further questions.

CHAIRPERSON: Judge de Jager?

JUDGE DE JAGER: Were you involved in the killing of both deceased?

MR MNYAKENI: I was involved in the death of one.

JUDGE DE JAGER: Why was the other one killed?

MR MNYAKENI: They were all together with Mzibenzi was killed, because the one fetched the others to come to Mandela Squatter Camp to kill comrades.

JUDGE DE JAGER: Did the two of them kill Mzibenzi?

MR MNYAKENI: It was not just the two of them, there were more than that.

JUDGE DE JAGER: And the reason for killing the two deceased, wasn't the true reason to revenge the death of Mzibenzi?

MR MNYAKENI: No, it was not revenge. Those people were uncontrollable, they used to do whatever they wanted in the community.

JUDGE DE JAGER: They were killed, because they acted like criminals in the community, they did whatever they wanted to do?

MR MNYAKENI: Besides that, they collaborated with the police. They would inform on us, for instance when we were holding meetings.

JUDGE DE JAGER: Who told you that they were informers, that they informed on you?

MR MNYAKENI: It was from their actions and the walkie talkies that they had, as well as the firearms that they carried, which led us to that belief.

JUDGE DE JAGER: When you confiscated the firearms, why didn't you confiscate the walkie talkies?

MR MNYAKENI: After confiscating their weapons, they left the area, they then returned later on, that is when they had those walkie talkies.

JUDGE DE JAGER: Why did Mzibenzi go with them? Was he a friend of theirs?

MR MNYAKENI: He was not going with them, he was in Dungwane's company.

JUDGE DE JAGER: Dungwane was, who was he and did he associate with these, with the deceased?

MR MNYAKENI: Dungwane was Mzibenzi's friend.

JUDGE DE JAGER: Was he also a comrade, a member of the Youth League?

MR MNYAKENI: Yes, he was an ANC member, but he would normally be with amabuthu.

JUDGE DE JAGER: Why would he have a friendship with these collaborators with the police? Maybe I am confusing the names now.

MR MALAN: Are you getting interpretation?

CHAIRPERSON: Very slowly. Your interpretation is very slow.

INTERPRETER: I was still verifying something, I beg your pardon. He said Dungwane came from the same area as the people from Sundral.

JUDGE DE JAGER: All right.

CHAIRPERSON: Sorry, you may proceed.

MR MALAN: I think I wanted to ask that same question, so Dungwane did keep company with those people from Sundral? He knew them?

MR MNYAKENI: He knew them because he mentioned all of the people who had been involved in killing Mzibenzi by name.

MR MALAN: Did he keep company with them at any stage, did he go with them?

MR MNYAKENI: No, I had never seen him with them.

MR MALAN: How did he know their names?

MR MNYAKENI: I already mentioned that he was also from Sundral, the same place that they came from.

MR MALAN: If he escaped them, and he knew on the 20th already that Mzibenzi had been killed, why did he not report that to you on the 20th already, because he was present, he got injured, he knew their names, but he doesn't report to the community or to the structures? Why not do you think?

MR MNYAKENI: I do not know, because we only met him at sis Tandi's place the following morning, but we learnt that amabuthu had already learnt of Mzibenzi's death before.

MR MALAN: Okay, thank you.

CHAIRPERSON: Was Mzibenzi killed in the evening?

MR MNYAKENI: Yes, that is correct.

CHAIRPERSON: You earlier in your evidence mentioned Luqi was fetched in a kombi on the pretence that the grandmother had died, what happened to Luqi, who is he?

MR MNYAKENI: Luqi was one of our comrades.

CHAIRPERSON: Who fetched him?

MR MNYAKENI: It was Sautane and other people from Sundral.

CHAIRPERSON: Was he fetched by people from Sundral or Sundra?

MR MNYAKENI: Sundral.

CHAIRPERSON: Thank you. Any re-examination Mr Padi?

RE-EXAMINATION BY MR PADI: Yes, thank you Mr Chairman. Mr Mnyakeni, did you assault both the people who were killed, with the iron bar which you had?

MR MNYAKENI: I assaulted one.

MR PADI: Which one are you referring to?

MR MNYAKENI: The other one, not Duhla.

MR PADI: Did you at any stage assault Duhla?

MR MNYAKENI: Duhla was tied up a little distance away from the person I was assaulting.

MR PADI: Mr Mnyakeni, you said that these people collaborated with the police, was it a view that was held by the community in general that these people were informers or what was the general perspective of the community of Mandela against these people or in relation to these people?

CHAIRPERSON: No, we will rather say Mandela Squatter Camp, we cannot be referring to the former President now.

MR PADI: Thank you Mr Chair. May I repeat my question again?

CHAIRPERSON: Yes, certainly.

MR PADI: Mr Mnyakeni, you said that these people collaborated with the police. Was it a general view that was held by the community that these people were informers?

MR MNYAKENI: It was not just an opinion, the community knew that they collaborated with the police.

MR PADI: So you say that the community of Mandela Squatter Camp knew for a fact that these people were informers?

MR MNYAKENI: That is correct.

MR PADI: Was that one of the reasons why they were killed, or was that the reason why they were killed?

MR MNYAKENI: It was one of the reasons, because they also killed Mzibenzi and they were harassing the community, as well as informing on the community.

MR PADI: Would I be correct to say that these people were regarded as enemies of the community?

MR MNYAKENI: Yes, from their behaviour.

MR PADI: And that the incident which triggered their killing was that they killed Mzibenzi?

MR MNYAKENI: Yes, and also for the fact that they had been pre-warned time and time again that they should stop their behaviour or well as for the fact that wherever they were, the police would be close behind their heels.

MR PADI: Thank you Mr Mnyakeni, thank you Mr Chair, I have no further questions.

MR MALAN: May I just on this point, on your last question, you say they were warned time and time again, but you allowed them to stay, you did not tell them "go back to Sundral where you live"? Is that correct?

MR MNYAKENI: Yes, we did not chase people away from the community, we wanted to live together in a cooperative manner, but then they could not live with other people.

MR MALAN: These are people who walk with guns, they shot randomly over the place, killing people, wounding people,

working together with the police, walking with walkie talkies, informing on the community, the community knowing it for a fact, and yet you say we want to live in peace, they can live in Mandela Squatter Camp? Is that your evidence? All of this goes without saying, it sounds normal?

MR MNYAKENI: We were trying to restore ubuntu in them.

JUDGE DE JAGER: But if you had this noble idea, why did you kill them then?

MR MNYAKENI: The committed too many offences against the community and after their weapons had been removed from them, we presumed that they had reformed, but we didn't know that they were hatching a plan to kill Mzibenzi.

CHAIRPERSON: You may continue Mr Padi?

MR PADI: I have no further questions, Mr Chair, thank you.

CHAIRPERSON: Thank you Mr Mnyakeni.

CHAIRPERSON: Have you further evidence to lead in respect of Mnyakeni?

MR PADI: I have no further evidence to lead, Mr Chair.

CHAIRPERSON: That concludes?

MR PADI: That concludes the case.

CHAIRPERSON: Are you in a position to argue?

MR PADI: Yes, I am in a position to argue.

CHAIRPERSON: Are you, Ms Thabethe?

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: I suppose as always?

MS THABETHE: Certainly.

CHAIRPERSON: Thank you. Mr Padi?

MR PADI IN ARGUMENT: Thank you Mr Chair. The evidence that was led by Mr Mnyakeni is that they killed two people because, he said primarily because one of their comrades were killed by the name of Mzibenzi. That is the incident that triggered the killing of Absolom Mnyakeni and Patrick Nkhumalo. These are the very people who were regarded as informers, or who were seen by the community as informers. In fact from the evidence of Mr Mnyakeni, the community knew for a fact that these people were informers. Now, my first submission is that the act which was committed by Mr Mnyakeni, is in fact ...

JUDGE DE JAGER: Could you just on that, the community believed or not only believed, thought they had proof that these people were informers?

MR PADI: That is my submission.

JUDGE DE JAGER: And yet they allowed them to stay with them, to watch what they are doing and to run to the police day after day?

MR PADI: From the evidence of Mr Mnyakeni, these people, the guns were taken from them initially and the idea was to bring them into the community, to make them part of the community, not enemies of the community. That attempt to convert them into better members of the community, that effort failed, and that was shown by the ultimate killing of Mzibenzi. That was the particular incident that triggered their killing, but it should not be seen in isolation, because this was the community that was keen to live in peace with people who proved not to be worthy of living as such, but however, the community went to an extent of accommodating them. As a result, they proved the community otherwise and went ahead to kill Mzibenzi. Hence it led to their ultimate death. It is actually my submission Honourable Chair, that the act that Mr Mnyakeni committed, is associated with a political objective.

I would refer the Honourable Commission to the Promotion of National Unity and Reconciliation Act on Section 20(3)(b) which is the Section that states that in order for an action to be seen to have been, or rather let me read this -

Then referring to subsection (b) -

My submission is that the act was associated or - yes, was associated with a political objective, in a sense that it was a political objective of the ANC to eliminate opposition, and it was common practice on the grassroots that informers and people who hindered the progress towards democracy by either informing against the community or the liberation movements of the time, should be eliminated in whatever way possible.

CHAIRPERSON: Not rather people who formed a hinderance in the peaceful living of a community, would be enemies of the ANC as well?

MR PADI: That is correct and I am indebted to the Honourable Chairperson. As a result of that, what I was saying is although the incident that triggered the killing of these people, was the killing of Mzibenzi, that would in one way be seen as a revenge killing, on the other hand, it would be seen as complying with the objectives of the ANC at the time in a sense that they were eliminating people who were disturbing the peaceful living of the community at the time. As a result, it is my submission that the act that has been committed by Mr Mnyakeni, is definitely associated with a political objective. I would go further to include the assault of Brenda Ngabo, because it all happened in the same context, that the same submissions would be included in the assault of Brenda Ngabo, Honourable Chair.

JUDGE DE JAGER: Was Brenda regarded as an enemy of the community?

MR PADI: She was not regarded as an enemy of the community, Honourable Committee Member. From the evidence that Mr Mnyakeni gave, Brenda knew these people, knew where they were staying. The reason why she was called upon, was to identify or to tell Mr Mnyakeni and his company at the time, where other members of this group of Duhla would be found. She started resisting and according to his evidence, she lied about not coming from a place where she came from. That is where the assault came in, in order to get her to give out more information, so that these enemies of the community would be eliminated.

JUDGE DE JAGER: But suppose she was an ANC member or supporter, could you assault her and then ask for amnesty, if she was a member of your own party?

MR PADI: Honourable Committee Member, if a person is a member of the organisation, and he either disturbs the living of the community or in one way or another, hinders the peaceful living of the community, then yes, it would be acceptable to assault him and then ask for amnesty.

JUDGE DE JAGER: Did she do that?

MR PADI: Pardon me?

JUDGE DE JAGER: Did Brenda do that?

MR PADI: According to the evidence of Mr Mnyakeni, she refused to give out information which was required in order to see to it that as many as possible of the killers of Mzibenzi and that of the people who disturbed the peace in the Mandela Squatter Camp were eliminated.

JUDGE DE JAGER: But on the other hand, she voluntarily went with him, didn't resist at all?

MR PADI: Yes, the information only came out or the assault happened at the beginning of the whole process. The going together with them, came later, after it had been driven by the assault.

MR MALAN: But was the evidence not here that he assaulted her because she lied?

MR PADI: That was the evidence.

MR MALAN: Yes. Not because there was any specific objective at that stage, she simply denied that she came from a certain place and that is why he assaulted her, on his own evidence?

MR PADI: That is correct Honourable Committee.

MR MALAN: But there was no political objective related to that assault, according to the evidence?

MR PADI: My submission is that there is. In a sense that at the time of the assault on Brenda, that was immediately after the attack on the two people who died.

MR MALAN: No, I think you misunderstand me. I understand the political context, broadly speaking, but the Act also talks about a political objective. What did he mean to achieve by assaulting Brenda?

MR PADI: Honourable Committee Member, maybe the right way to phrase it would be that the act was committed in a political context.

MR MALAN: Yes, that we know. My question is, was there a political objective tied to the act of assault? Not context, objective, did he hope to achieve anything by assaulting her?

MR PADI: My submission is yes, he did hope to achieve a political objective in that. In that he was hoping to get information that would eventually lead to the finding of the people who were causing disturbances in the community. By lying, she hindered that process of getting the people who were seen as the enemies of the community at that time. My further submission is that the act in question ...

MR MALAN: Sorry, I am not sure that I am happy with this information, I am looking for a political objective. Was the evidence not that the assault there was after these two people had been doused and set alight, after they had fled, got hold of Brenda, on his evidence, that is not Brenda's version in court, but let's assume that is the evidence here. And then he was simply trying to find out where did these people stay and were there others with them. What, I am not sure that I really understood what he was trying to say to us.

MR PADI: My understanding of his evidence Honourable Committee Member was that at the time of calling Brenda, they wanted to ascertain where were these people living, because these people were not, they were not only two, they were operating in a group, so they wanted to find out where the others were. That was at least my understanding of the evidence.

My second submission is that Mr Mnyakeni made a full disclosure in relation to the incidents for which he is applying for amnesty and my final submission is that the act was committed within the time provisions which are required by the Act. Therefore I submit that Mr Mnyakeni complied with all the provisions of the Act for the granting of amnesty and I request the Honourable Amnesty Committee to grant him amnesty for the said incidents. Thank you.

MR MALAN: That would exclude the assault on Mongezi and the kidnapping of Mongezi, and it would exclude kidnapping of Brenda, because ...

MR PADI: That is correct Your Worship, because he did not admit to that, so it would definitely exclude the kidnapping of Brenda, it would exclude the kidnapping of Mongezi and the assault of Mongezi.

MR MALAN: Thank you.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: Thank you Mr Chair. I think everything has been said. I would be wasting the Committee's time if I were to repeat. In short, I have no submissions and I leave everything in the capable hands of the Committee, unless the Committee wants me to address them on a specific issue.

CHAIRPERSON: Thank you Ms Thabethe. Mr Padi and your client, Mnyakeni, the Committee reserves its decision. It shall be communicated to you in writing as soon as the same has been done.

MR PADI: Thank you.

CHAIRPERSON: We shall endeavour to speed it up, but we cannot give you time periods, but we will do it as soon as possible.

MR PADI: Thank you Mr Chair.

CHAIRPERSON: I see, you've got another one, Phahlane to lead. Is he here?

MR PADI: Mr Phahlane is here, Honourable Chair. I have a problem in that I haven't had a chance to consult with him as yet mainly because yesterday he came late, I couldn't see him, by the time I left, he was not here. And even today, he came late, arguing that he didn't have money to come here. I wonder if the Honourable Committee could give me some time to consult with him, if that would be okay with the Committee?

JUDGE DE JAGER: When did you receive instructions to appear on his behalf?

MR PADI: I received instructions on last week, Thursday.

JUDGE DE JAGER: Why couldn't you go out to Leeukop to see him or wherever he is kept?

MR PADI: He is not in Leeukop, Your Worship.

JUDGE DE JAGER: Is he not in prison any more?

MR PADI: No, he is not in prison.

MS THABETHE: Mr Chair, actually I was also about to request that there is a request from the prison with regard to Tinyane, the matter of Tinyane, that because of time, so I wanted to request that we start with the matter of Tinyane, because of time constraints, because Phahlane is not in prison, so we can always do him after the prison time constraints.

JUDGE DE JAGER: Could the prison officers perhaps tell us why they were late this morning, what was the reason for that?

MS THABETHE: Should I quickly facilitate that?

JUDGE DE JAGER: No, I think they can hear me. Can someone stand up and please tell us why they were late? Who are in charge of the prisoners here?

POLICE OFFICER: Sorry, we are not from Leeukop, from Johannesburg prison.

JUDGE DE JAGER: Why were you late this morning, what was the reason for coming round about, well it was passed 10 I think when you arrived?

POLICE OFFICER: Us, no round about nine o'clock we were already here. From Johannesburg?

JUDGE DE JAGER: Well, we asked whether any of the prisoners were present and they said no, they didn't arrive.

POLICE OFFICER: No, we were the first here from all the prisons.

JUDGE DE JAGER: Thank you.

CHAIRPERSON: Could we then say, for tomorrow, could we have the prisoners with your cooperation, please be here at nine in the morning? Is that possible?

POLICE OFFICER: We are having a problem with locking up sir, I mean with opening up the prisoners. We open at eight and then from eight, we must still count them, and then we must give them breakfast and then maybe say round about half past, twenty to nine, we leave the prison, and then we must go to Baragwanath and maybe Johannesburg court whatsoever, because we are using one transport.

CHAIRPERSON: If we say then that we start at half past nine, would that be a reasonable time?

POLICE OFFICER: Yes sir.

CHAIRPERSON: Please, we want your cooperation because we know under what circumstances you are working, they are difficult, but if we could have cooperation between the two of us, we can facilitate the process.

POLICE OFFICER: We will try our best, we will do that.

CHAIRPERSON: Thank you.

POLICE OFFICER: Okay, thank you.

JUDGE DE JAGER: And at what time should they be back at prison?

POLICE OFFICER: We lock up at half past three.

JUDGE DE JAGER: Half past?

POLICE OFFICER: Three, half past three.

JUDGE DE JAGER: So you must leave here at three o'clock?

POLICE OFFICER: That is correct.

JUDGE DE JAGER: Well, that would make it very difficult for us to finish this roll.

POLICE OFFICER: We don't have problems if you finish off later, maybe at five or six, we don't have a problem with that.

CHAIRPERSON: Could we hear this last guy, Tinyane, who is in prison?

POLICE OFFICER: Yes.

CHAIRPERSON: Okay, thank you very much. We will start with him immediately and release him as soon as he is finished.

POLICE OFFICER: Thank you sir.

-----------------------------------------------------------------------CHAIRPERSON: Mr Tinyane and the legal representative?

MS THABETHE: Mr Chair, we have a slight problem, the legal representative for the applicant is outside. She is coming just now.

MR MALAN: Shall we break for five minutes?

CHAIRPERSON: Yes, I think we should break for five minutes for the Interpreters to catch their breath. We shall have a five minute adjournment.

MS THABETHE: As the Committee pleases.

ON RESUMPTION:

CHAIRPERSON: Thank you, we are due to start with Tinyane. We have once more perused his application and the supplementary affidavit which he has filed. Is Mr Tinyane here? Yes, and we have further perused your application and the supplementary affidavit. In the absence of your lawyer, we are of the opinion that your matter can be dealt with in Chambers, because we could not detect any gross human rights violation. We would in the circumstances say the prison authorities can take you back, we will immediately forward it to Cape Town that it be dealt with speedily in Chambers and advise you of the decision. Do you follow what I have been saying?

MS THABETHE: Sorry Mr Chair, I realised he had just put in the earphones, and I am not even sure whether he followed what you were saying, because it was not translated.

CHAIRPERSON: I will repeat myself. I am saying we have had a further opportunity of perusing your application together with the supplementary affidavit, supplementing particulars in your application. We are of the view that there is no gross human rights violation and matters of this nature, are not dealt with in a hearing, but in Chambers. We will refer it back to Cape Town that they deal with it speedily and advise you of the decision they have arrived at. Do you follow what I am saying?

MR TINYANE: Yes, I do understand.

CHAIRPERSON: We would in the circumstances say that the prison authorities are released, they can take you back, we shall make our best efforts that this matter is brought to your attention as soon as the decision has been made because we detect no gross human rights violation in your matter, and such matters are not hearable. Do you follow again?

MR TINYANE: Yes, I do.

CHAIRPERSON: We should apologise that you have been brought here unduly and apologise again to the prison authorities about this misunderstanding. Please bear with us, because we simply sit here and hear matters, we don't process the matters. Okay sir, you may stand down and you are excused. We shall advise your lawyer accordingly.

CHAIRPERSON: Mr Padi, are you in a position to proceed with Phahlane?

MR PADI: Yes, I am ready Honourable Chair.

CHAIRPERSON: What language would he speak?

MR PADI: Sotho.

CHAIRPERSON: Your full names?

MR PHAHLANE: I am Neo Ignatius Phahlane.

INTERPRETER: Excuse me Mr Chairman, may I ascertain if he can hear the translation?

CHAIRPERSON: Pardon?

INTERPRETER: I say may I ascertain whether he can hear the translation?

CHAIRPERSON: Can you hear the translation Mr Phahlane?

MR PHAHLANE: Yes, I do.

NEO IGNATIUS PHAHLANE: (sworn states)

CHAIRPERSON: Please be seated. Mr Padi?

EXAMINATION BY MR PADI: Thank you Mr Chair. Mr Phahlane is applying for amnesty for the incident which occurred on the 1st of October 1989 in which a Sharpville police station was attacked, pursuant to which attack a person was injured.

MR MALAN: That was Sgt Madibo?

MR PADI: That is correct.

MR MALAN: We have all the papers before us, we have the supplementary document which we have also read. I note from the papers that the Commander K.K. and one of his other colleagues, had already received indemnity in 1990 for this incident? Is there anything you want to add or will you just get him to confirm what is on paper?

MR PADI: I was hoping to get him to run us through his background and briefly relating to the incident if that would be okay with the Committee.

MR MALAN: What I want to suggest to you firstly, I assume you have discussed his application with him and that that is correct?

MR PADI: Yes, I did discuss it with him.

MR MALAN: And I further assume that the supplementary affidavit which he has signed, was done recently, probably yesterday or today?

CHAIRPERSON: Have you seen it?

MR PADI: Yes, I have the one by ...

MR MALAN: Oh, this is Madibo's statement.

MR PADI: Yes.

MR MALAN: Sorry, Madibo's statement, you have seen that?

MR PADI: Yes, that I have seen.

MR MALAN: That seems to be in accordance with the application, there is no dispute of fact?

MR PADI: Yes, there is no disputed facts.

MR MALAN: So everybody is aware of the factual of it, and I am simply suggesting if you want to dispense with any oral evidence, by simply confirming the correctness of his application, then we can leave it to questions to proceed from there, and if you have anything to add which is not in there, do that, but don't repeat, that is simply my suggestion.

MR PADI: Okay, thank you, thank you Honourable Committee Member. Can I get a directive again from the Honourable Committee Member, is it the suggestion that I run through the affidavit?

JUDGE DE JAGER: Mr Padi, are you in practice?

MR PADI: Yes, I am in practice.

JUDGE DE JAGER: It is a tip to you that what we've got before us, if we've got problems, we will ask you to answer on that.

MR PADI: Thank you.

CHAIRPERSON: Let me probably take that cue, Mr Phahlane, you have read your application once more, have you?

MR PHAHLANE: I did not read it today, since I wrote it.

CHAIRPERSON: But you know the contents of your application?

MR PHAHLANE: That is correct.

CHAIRPERSON: And that on the 3rd of the 11th month, you gave another affidavit under oath, this year?

MR PHAHLANE: Yes, that is correct.

CHAIRPERSON: And have you read the versions of the police whom you attacked at the police station?

MR PHAHLANE: I did not read the police statements.

CHAIRPERSON: In effect they are confirming what you are saying in your application and they say they have forgiven you. Do you follow that?

MR PHAHLANE: Yes, I do.

CHAIRPERSON: In other words they are saying they are not opposing your application.

MR PHAHLANE: Yes, I do understand.

CHAIRPERSON: Do you confirm the contents of your amnesty application?

MR PHAHLANE: Yes, I do.

CHAIRPERSON: Thank you, that is all we wanted you to do, Mr Padi.

MR PADI: I am indebted to you Honourable Chairperson. I just want to clarify some few issues, if that is okay.

CHAIRPERSON: Yes, it is your case.

MR PADI: Thank you Honourable Chair. Mr Phahlane, at the time of the commission of the incident in question, which political organisation did you belong to?

MR MALAN: Mr Padi, everything is in his application, he says that he was a member of the Vaal Youth Congress, he says he was Deputy President, he talks about the ANC, everything is in there, we have it before us.

MR PADI: Yes, what I am trying to get out of him is that when he committed this particular act, he was not doing it as a member of the Vaal Youth Congress, but as a member of MK. That is exactly what I am trying to extract from him at this stage.

MR MALAN: Please proceed.

MR PADI: Thank you. Mr Phahlane, were you a member of Umkhonto weSizwe at the time of the commission of this act?

MR PHAHLANE: Yes, I was a member of MK.

MR PADI: And you were committing this act as a member of the Umkhonto weSizwe?

MR PHAHLANE: Yes, I did that under the command of MK.

MR PADI: From your application it is stated that K.K. Smith was your commander, is that so? Do you confirm that?

MR PHAHLANE: That is correct.

MR PADI: At this stage, Honourable Committee Members I think the rest of the information is covered from this, I will follow up with re-examination if there is any, thank you.

CHAIRPERSON: Thank you Mr Padi. Ms Thabethe, any cross-examination?

CROSS-EXAMINATION BY MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: You may proceed.

MS THABETHE: Thank you. Mr Phahlane, were you armed when you went to the police station?

MR PHAHLANE: I was not armed. The only person who was armed was K.K.

MS THABETHE: Can you explain how it came about or why was the one policeman shot, Sgt Madibo?

MR PHAHLANE: Mr Madibo was shot because when we arrived there and they were holding them up, he was the person who resisted. He took up his arm, so we had no alternative, but we had to shoot at him, because the reason why we went there was just to disarm them, so that we could use them for MK purposes because they were supporting the apartheid regime together with the soldiers, so we believed that by disarming them, we would be able to decrease the strength of the apartheid government. Our aim was not to shoot him, it was only to disarm them and give those arms to the MK, so he showed resistance and he ended up being shot.

MS THABETHE: You see, why I am asking you this question is because in the statement written by Mr Madibo, or Sgt Madibo, he indicates that the person who was carrying the firearm, it is on paragraph 4 of the first page, he says the person who was with you began shooting at them, what is your response to that statement or that averment?

MR PHAHLANE: K.K. started shooting, but he was not shooting Mr Madibo, he shot another policeman who was running out of the police station, and that is when Mr Madibo took out his firearm, shooting at K.K.

MS THABETHE: Thank you Mr Chair, I have no further questions.

CHAIRPERSON: We will follow the same procedure, Mr Padi, that if you have any re-examination, let the Committee also deal with questions which they need clarification, and thereafter you would re-examine in total, knowing the views or things elicited by the Committee Members, is that okay with you?

MR PADI: That is okay.

CHAIRPERSON: Thank you. Mr Malan?

MR MALAN: I have no questions, thank you Chair.

CHAIRPERSON: Judge de Jager?

JUDGE DE JAGER: No questions.

CHAIRPERSON: Do you have any re-examination?

MR PADI: I have no re-examination at this stage.

CHAIRPERSON: Thank you. Is there anybody you are calling again in Mr Phahlane's case?

MR PADI: No, there won't be any other persons.

CHAIRPERSON: Is that your case?

MR PADI: That is my case.

CHAIRPERSON: Are you ready to address us?

MR PADI: Yes, I am ready to address you.

CHAIRPERSON: As always?

MS THABETHE: Yes, Mr Chair, maybe I can just add for the record, that I spoke to the victims who are present here, they have been present since yesterday, patiently waiting, so I just want to put that on record. But in my consultation with them, they did indicate that they are not opposing the application.

CHAIRPERSON: Nor do they want to say anything before argument?

MS THABETHE: No.

CHAIRPERSON: Thank you.

MS THABETHE: Thank you.

CHAIRPERSON: You may proceed, Mr Padi.

JUDGE DE JAGER: And they are satisfied that they are telling the truth?

MS THABETHE: Maybe I should double check that Mr Chairman.

JUDGE DE JAGER: Yes, because it corresponds with what they themselves say.

MS THABETHE: Sure.

CHAIRPERSON: That is the entering and the shooting and all that?

MS THABETHE: Yes, Mr Chair, when talking to them yesterday, they wanted to hear if he was going to come and say something differently, but it looks like nothing different has been said, so I don't think really they would want to say anything.

CHAIRPERSON: But in all fairness, because they took trouble to come here, we should afford you another opportunity just to speak to them.

MS THABETHE: Just to find out, sure. I will do that quickly, Mr Chair.

CHAIRPERSON: Thank you. How long do you think it will take?

MS THABETHE: A matter of seconds, Mr Chair.

CHAIRPERSON: So we need not leave?

MS THABETHE: Certainly.

CHAIRPERSON: Thank you.

MS THABETHE: The statements are the same, contain the same.

CHAIRPERSON: Mr Padi, in view of the evidence before us, we are of the feeling that you cannot advance your argument any further, unless there are other things you want to highlight. We are not stopping you, but if there is something that you want to highlight, really we would ...

MR PADI IN ARGUMENT: The only things that I wanted to highlight, Honourable Chair, relates to the fact that this application complies with the requirements of the Act. All the requirements ...

CHAIRPERSON: We wouldn't have heard him if it didn't comply, if the application did not comply, we wouldn't have heard him.

MR PADI: Yes. Beyond that, that is nothing else to say, except that we request that amnesty be granted.

CHAIRPERSON: Thank you. Ms Thabethe?

MS THABETHE: Mr Chair, I have no opposition if amnesty is granted.

CHAIRPERSON: Mr Phahlane, tomorrow morning we will be able to deliver a written decision. We would have done it orally, but because its got to be processed and government gazetted, my oral decision would not go that far, but we promise that tomorrow, during the day, we will give that decision in that respect, and I want to thank the police for their cooperation that you are facilitating the process and you are appreciating very much. We are indebted to you because you have accepted the conflict of the past, you do not say because you are victims, therefore we do not forgive. We are very appreciative of that. In our decision, whichever way it goes, either granting or refusing, we shall refer you to the Reparation Committee, then they will contact you shortly, but I am expressing our hearts to you as a Committee. Thank you very much.

This brings us to the end of the proceedings of the day. We shall be commencing with the other five applications tomorrow, the 24th of November, Wednesday. Those would be Ngubeni, Mahlangu, Madonsela and Nhlapo and Zondo. Thank you. Have a good evening.

MS THABETHE: As the Committee pleases.

JUDGE DE JAGER: Did you get in touch with Mr Moto of the prison in connection with Mr Ngubeni's application? He requested in paragraph 2, could you have a look at that?

CHAIRPERSON: We shall formally adjourn, this we will deal with in Chambers, thank you.