CASE NO: 2618/96

DAY 4

CHAIRPERSON: This is Thursday the 31st of July and it is the Amnesty application of Dumisani Mthembu, number 2618/96. The members of the Committee are myself Andrew Wilson, Mrs Khampepe and Mr Potgieter.

MR WILLS: My name is John Wills, I act for the Applicant.

MR MPSHE: J Mpshe for the Amnesty Committee.

MR WILLS: Mr Chairperson, members of the Committee, I would like to apologize for the delay in the commencement of this hearing. Basically what occurred was that there was a problem with the location of a second witness which we intended using this morning. The driver of the vehicle arrived at the agreed meeting place at the correct time and many efforts were exercised to try and locate him. Unfortunately these were fruitless and time wasting, as a result of which their journey from Sindumbele to here this morning was seriously delayed and they apologise profusely for inconveniencing the Committee in this regard.

CHAIRPERSON: Thank you for the explanation. Carry on.

MR MPSHE: Mr Chairman, I just want to put it on record that pertaining to the victims here, only one is present with us Mr J W van Schalkwyk. The other four are not available, thank you Mr Chairperson. ...(inaudible)

CHAIRPERSON: They’ve all had knowledge - been given notice of the hearing?

MR MPSHE: My information Mr Chairman, is that they have been informed in terms of the list and their ...(inaudible) thank you Mr Chairman.

MR WILLS: Thank you Mr Chairman, prior to me calling the Applicant to testify, I would like to hand in certain documents which I intend using at the hearing.

The first is a psychiatric report by a Doctor Angelo John Lashish which was done in December 1993.

The second document is a sketch plan of the house in question, that is house 1658 Sindumbele and an immediate vicinity house plan of the same house which was compiled as a result of an inspection in loco which I performed.

CHAIRPERSON: The report can be Exhibit A. The larger scale - the area plan - Exhibit B and the Sketch Plan of the house - Exhibit C.

EXHIBITS A , B AND C HANDED IN

MR WILLS: Thank you Mr Chairperson. I call the Applicant.

MRS KHAMPEPE: Mr Mthembu?

DUMISANI MTHEMBU: (sworn states)

EXAMINATION BY MR WILLS: Mr Mthembu, I’d like you to just realise that whilst you are giving evidence you must talk slowly because as you are giving evidence people are both writing down notes and the evidence you give is being translated, so just speak slowly while you’re giving your evidence, thank you.

Mr Mthembu, where do you reside presently?

INTERPRETER: He didn’t get that.

MR WILLS: Where do you live presently?

MR MTHEMBU: Answer not translated.

MR WILLS: At the time you made the affidavit in support of your application in December 1996 sorry, September 1996, were you living Sindumbele?

MR MTHEMBU: During 1996 I was Sindumbele.

MR WILLS: Thank you. Now you made an affidavit in support of your amnesty application on the 16th September 1996, do you confirm the contents of that affidavit?

MR MTHEMBU: I confirm that.

MR WILLS: You have been charged in the Impangeni Regional Court under Case number RC410 of 1992 in respect of counts relating to two counts of attempted murder, one count involving the illegal possession of a firearm and one count involving the illegal possession of ammunition, do you confirm that?

MR MTHEMBU: Yes, I confirm.

MR WILLS: And do you confirm that you are applying for amnesty in respect of those counts?

MR MTHEMBU: That’s correct. I’m here to ask for amnesty in regard to those things.

MR WILLS: Now do you admit that on the day in question, i.e. the 2nd of September 1992, you had a Stetchkum/Makerhoff pistol in your possession?

MR MTHEMBU: That’s correct, I had it.

MR WILLS: Do you also admit that you had ammunition for this Stetchkum pistol also in your possession?

MR MTHEMBU: That’s correct, I had ammunition for that firearm.

MR WILLS: Now do you admit that on the date in question you were at the house of Mr Vincent Shandu at 1658 Sindumbele?

MR MTHEMBU: That’s correct, I was at Mr Shandu’s place.

MR WILLS: What were you doing at Mr Shandu’s place?

MR MTHEMBU: I used to stay there as a person who was guarding Mr Shandu during the violence.

MR WILLS: Who instructed you to guard Mr Shandu?

MR MTHEMBU: Instructions were given to me by my commander at that time.

MR WILLS: And do you remember the name of your commander?

MR MTHEMBU: I do remember.

MR WILLS: Can you tell the Committee the name of this commander?

MR MTHEMBU: It is Msizi Mkunu.

MR WILLS: Now what political organisation does Mr Mkunu belong to?

MR MTHEMBU: He was an IFP member and also an MK soldier. ANC and MK.

MRS KHAMPEPE: I think there’s been some mistake. The witness said ANC.

MR WILLS: Thank you Committee member. Now in order for you to perform your duties as a guard, you must have received some form of training, can you tell the Committee if you received such training and tell them where this training occurred.

MR MTHEMBU: I was trained in Transkei to protect leaders of my organisation at that time at Sindumbele.

MR WILLS: Now what organisation do you belong to?

MR MTHEMBU: I am an ANC member.

MR WILLS: And when did you first join the ANC?

MR MTHEMBU: I became an ANC member in 1989.

MR WILLS: Now turning to the firearm, where did you get this firearm from?

MR MTHEMBU: I got the firearm from Msizi.

MR WILLS: Is this the person you referred to as Mr Msizi Mkunu who you referred to as your commander?

MR MTHEMBU: That’s correct, it’s him.

MR WILLS: Now why was it necessary to have Cosatu members guarded at that particular time?

MR MTHEMBU: The reason was because there were rumours that leaders of the ANC were going to be attacked. The violence had intensified and many leaders were killed at Mandene at Sindumbele.

MR WILLS: Now referring to Mr Shandu, what leader was he?

MR MTHEMBU: He was an ANC leader and also a Cosatu leader.

MR WILLS: Is it correct that at the time he was in fact the Regional Chairperson of Cosatu in the Northern Natal region?

MR MTHEMBU: That’s correct.

MR WILLS: Now can you remember anybody who was killed in that area around the time that you were guarding Mr Shandu?

MR MTHEMBU: The person who got killed was Ken Shandu.

MR WILLS: How was he killed?

MR MTHEMBU: He was attacked and hit by a petrol bomb and they also shot him.

MR WILLS: And was this Ken Shandu actually the brother of Vincent Shandu?

MR MTHEMBU: That’s correct.

MR WILLS: Now I’m going to turn now to the incident in question, that is the events that occurred in the early hours of the morning of the 2nd of September 1992. You said you were in Mr Shandu’s house at that stage, is that correct?

MR MTHEMBU: Yes, I was in Mr Shandu’s house at that time.

MR WILLS: Can you tell the Committee what, how you were woken up and what happened immediately thereafter.

MR MTHEMBU: I woke up when I heard gunshots in the house - we were surprised - I woke up and entered the passage of the house and we were being shot at and I fired shots back to the people who were shooting at us. After that Mr Shandu called out asking what’s happening, who are shooting at us? They shouted back saying we are the police.

MR WILLS: Okay, when you - you said you were woken up by shots being fired, at that stage did you know who the people were outside who were shooting at you?

MR MTHEMBU: In my mind I thought those were the people who attacked our place, I didn’t think it would be police who were shooting at us.

MR WILLS: Then what did you do? You said you fired some shots, can you remember how many shots you fired?

MR MTHEMBU: If I remember well I shot three times.

MR WILLS: And did you shoot with the weapon that you referred to earlier, i.e. the Stetchkum pistol?

MR MTHEMBU: Yes, I used it - the one that I referred to before.

MR WILLS: Now did you aim this at any particular person, when you were shooting were you aiming at any particular person?

MR MTHEMBU: I didn’t aim at a particular person, I just shot at the direction from where the shots were coming from.

MR WILLS: Can you, - you’ve said that Mr Shandu shouted outside and then the police indicated it was the police, can you tell the Committee what happened thereafter?

MR MTHEMBU: After Shandu shouted asking who they were, the police replied saying, we are the police. After that the police said Shandu should open the door. Shandu asked, aren’t you going to shoot us and they said no we won’t and they insisted that he open the door.

MR WILLS: Yes, and then what happened?

MR MTHEMBU: Shandu opened the door and after opening the door they told him to raise his hands and put them on top of his head, both of them and get out of the house.

MR WILLS: Yes, and then what happened?

MR MTHEMBU: They searched him and also took him outside and they instructed him to lie down on the ground on his stomach and they were pointing a firearm behind, from behind while he was lying on the ground. After that Vusi came, he’s my brother who - he were with us. They also searched him and they also instructed him to lie on the floor on his stomach, they also pointed a firearm behind him while lying on the ground.

The third one was myself. They also searched me and they told me to go and lie on the floor on my stomach. After that they woke me up, they picked me up, grabbed me and picked me up and put - and drove me back - pushed me back into the house. There were three policemen. While, after entering the house they said I must point a firearm. I entered the kitchen with them and I pointed the firearm next to a kitchen scheme.

CHAIRPERSON: Did they say, point a firearm or point out a firearm?

INTERPRETER: May you please repeat your question?

CHAIRPERSON: Did they say, point a firearm or did they say he must point out a firearm? Perhaps I should explain that translated into English in that way - point a firearm usually means point a firearm at a person. If they say point out a firearm, it means show them where it is.

MR MTHEMBU: They said I must point out a firearm. I pointed out the firearm and they said - they pushed me towards the gun and said I must pick it up. They were pointing guns at me standing by the kitchen door and they were saying I must pick it up and if I don’t pick it up, they’re going to shoot me. While they were pointing the firearms at me saying that I should pick up the firearm and if I don’t they going to shoot me, I kicked it because I thought they were going to shoot me. After that I didn’t see what happened however, even if I have told them that they mustn’t shoot me, I do know what happened. I remember the last time I remembered was when I said, pleading with them that they mustn’t shoot me. I don’t remember what happened after I took the firearm because they were pointing guns at me and saying that I shot their friend. One of them took out a gun and pointed it at me and said I shot his friend. After that I woke up at Wentworth, I regained my consciousness at Wentworth Hospital.

MR WILLS: Mr Mthembu I can see that you have a wound on the left side of your forehead, it’s very apparent. Is that the wound that you sustained on the day in question?

MR MTHEMBU: Yes, that’s where they shot me.

MR WILLS: Now how long did you spend in hospital?

MR MTHEMBU: I don’t remember well, I would say it was about four weeks or five.

MR WILLS: Can you tell the Committee what occurred after you were released from hospital?

MR MTHEMBU: They took me from Wentworth to Stanga Hospital where I stayed for one week. Thereafter they took me and charged me. That’s where I heard that at the time when we were attacked and I shot in retaliation, one police was injured.

MR WILLS: Sorry, did you say that was the first time that you realised that somebody was injured, possible by yourself?

MR MTHEMBU: That was the first day coming from hospital that I discovered that I shot someone during the day when we were fighting or shooting at each other.

MR WILLS: Do you remember that at about that time that you made a statement to the police in regard to the incident? That was after you had come out of hospital.

MR MTHEMBU: I remember the statement that I gave to the police.

MR WILLS: In fact that was made on the 30th of September 1992, is that correct? Committee members I’m referring to the exhibit that commences at page 48 of the bundle and continues until page 55. Did you tell the truth in this statement?

MR MTHEMBU: I will say I didn’t tell the truth in that statement, I was afraid. Secondly, I wasn’t well because I was just out from hospital.

MR WILLS: Members of the Committee, in this regard I refer to Exhibit A as it’s relevant at this stage and I specifically refer to page 4. It’s the 4th page but actually listed page 3 of Doctor Lashishe’s report and particularly the paragraph entitled Opinion and I specifically refer to the final sentence of the psychiatric report and I quote:

Obviously the reasons for that opinion are more fully set out in the body of the report.

Mr Mthembu you referred to somebody earlier in your evidence as Vusi, that being Israel Vusimusi Mtule, is that correct, the person you travelled with today?

MR MTHEMBU: Yes, it is Vusi

MR WILLS: And Vusi was in the house with you that night?

MR MTHEMBU: Yes, he was in the house.

MR WILLS: Now just for clarity, you indicated to the Committee when you were in the kitchen with the police and they were pointing firearms at you and ordering you to pick up the firearm, did you actually touch the firearm with your hands?

MR MTHEMBU: I didn’t pick it up with my hands, I was afraid that they were going to shoot me.

MR WILLS: You didn’t.

CHAIRPERSON: I didn’t hear ...(inaudible)

MR MTHEMBU: I said when they insisted that I should pick it up, I didn’t pick it up. I ended up kicking it up, kicking it with my foot towards their direction.

MR WILLS: Thank you. Sorry, there’s one final incident. I have some photographs here and I must apologise to the members of the Committee, I have only got one set of these photographs but if I can just show you these photographs. I just want you to peruse those photographs and tell me if they are photographs taken of the house and the interior of the house at 1658 Sindumbele, i.e. Mr Shandu’s house. Just look at the photographs please. Are those photographs of both the exterior and the interior, certain interior parts of Mr Shandu’s house?

Just place on record that I’ve shown about thirteen photographs there, busy going through each of them.

Are you in a position to tell us? Can you tell the Committee whether or not those are photographs taken from Shandu’s house.

MR MTHEMBU: These pictures they show the house of Mr Shandu after the incidents, all of them.

MR WILLS: Thank you. Now returning to ...(intervention)

CHAIRPERSON: ...(inaudible)

MR WILLS: Yes sorry, I apologise Mr Chairperson.

CHAIRPERSON: There are sixteen photographs in the ...(inaudible)

INTERPRETER: The speaker’s mike is not on.

CHAIRPERSON: There are sixteen photographs in the bundle. I think they can be referred to as Exhibit D. Are you going to refer to any of them individually?

MR WILLS: No, I’m not going to refer to, it’s just to give the Committee an idea of the ...(intervention)

CHAIRPERSON: Well before then, can I refer to six of the photographs that seem to show pock marking on the walls. Sorry, the seventh, external six so pock markings to the internal walls. Were these marks of bullets that were there after this, the night in question?

MR MTHEMBU: That’s correct, that happened on that particular day.

CHAIRPERSON: And are there also some bullet marks on the outside of the house, in particular one of both sides of the window that appears to have been shattered, of the front window of the house where you can see the number 1658? Do you agree there were bullet marks on the outside of the house as well and the window was shattered? You wouldn’t know would you, you can’t say what it looked like after the house, shooting because you were taken away to the hospital.

MR WILLS: Mr Chairperson, I just want to basically him to identify the home at this stage. My next witness will identify the ...(intervention) Sorry, could the Committee just bear with me, I just want to consult with the evidence leader very briefly.

Just for reference Mr Chairperson, members of the Committee, my learned friend is in agreement that I can place this on record. I personally did an inspection in loco at the home shortly after the incident and counted fourteen bullet holes through the kitchen door, nine through the lounge door. There were twenty seven big bullet holes on the interior lounge wall. I have a list of this which I will hand in. There were fifty what looked like bullet holes on the, small bullet holes on the interior lounge wall. There were eight big potholes in the interior of the kitchen wall, there were fifty plus bullet holes in the interior kitchen walls, there were three bullet holes into the sink, there were four through the kitchen table. In the main bedroom there were eight big bullet holes and thirty five small bullet holes and on the outside there were at least twelve bullet holes, indicting two hundred and twenty marks. Now just sorry, ...(intervention)

CHAIRPERSON: Exhibit E.

MR WILLS: Thank you Mr Chairperson.

Mr Mthembu, you mentioned this firing, can you give an estimate of the length of the firing or if there was a lot or a little bit of firing immediately after you woke up and before you yourself were shot?

MR MTHEMBU: The gunshots we heard in the beginning when they started to shoot at and also when I shot back at them, the gunshots continued until the owner of the house started calling out, Mr Shandu.

MR WILLS: Thank you. There’s no further questions for this witness, thank you Mr Chairperson, members of the Committee.

MR WILLS: Sorry, if I could just intervene once more here, it’s been pointed out to me that I’ve made a glaring mistake and that refers to the injury on the Applicant’s head. I indicated that it was on the left side of his head, it’s actually on the right hand side of his head, thank you.

CROSS-EXAMINATION BY MR MPSHE: Thank you Mr Chairman. Mr Mthembu why were you chosen to be the bodyguard of Mr Shandu?

MR MTHEMBU: Maybe it’s the way we were working together with Mr Msizi as we have ...(inaudible) complained that people were getting killed, the leaders were getting killed. That might have been the reason. I was the one who always insisted to Msizi that he must come and help us at Mandene.

MR MPSHE: When you started shooting the two, the three bullets, the three shots outside, whom did you think you were shooting at?

MR MTHEMBU: I was shooting at a person who was direct to the window was shooting into the house. I had to shoot through the window because I saw some bullets get into the house through the window.

MR MPSHE: What did you suspect the person you were shooting at outside to be?

MR MTHEMBU: I thought they were the attackers. The attackers - we have heard that they might come or they have attacked, or they will come to attack Mr Shandu on those particular days.

MR MPSHE: What attackers you heard would come or come to attack Mr Shandu, what attackers were those? Did you think of thugs that were going to attack Mr Shandu, did you think of people from some place coming to attack Mr Shandu?

MR MTHEMBU: Those were people who used to attack ANC members in Mandene. They were IFP members. We were still fighting when it comes to followers and also just as organisations.

MR MPSHE: Now referring to the statement you made to the police when you were led by my learned friend, you said that what you said to the police is not true because you were afraid, do you remember that?

MR MTHEMBU: Yes, I do remember.

MR MPSHE: Were you also afraid to disclose even names to the police?

MR MTHEMBU: I was afraid to mention names but I didn’t have the names of the attackers which I could have disclosed to the police.

MR MPSHE: Were you afraid even to mention names of people in your own organisation?

MR MTHEMBU: Yes, I was afraid to mention names of my fellow comrades and even those who were working underground.

MR MPSHE: Why were you afraid?

MR MTHEMBU: It was because police intimidated me because there was the people who came to fetch me and the statement that I have to make we were, I made the statement while in the car from hospital to the police station and thereafter they took me to the cells.

MR MPSHE: Didn’t you mention a name - didn’t you say to the police that you picked up the firearm at a roadblock?

MR MTHEMBU: I did say that because I was afraid that they were going to harass me or torture me because in most of the cases when they investigating cases, they were intimidating people and in those days when they said they were going to shoot you, they were really going to shoot you.

MR MPSHE: Now in your affidavit - I refer members of the Committee to page 5 of the bundle - in your affidavit, the last paragraph thereof, you state that during 1992 there was a considerable amount of violence in the Northern Natal area and many ANC and Cosatu leaders and officials were killed.

MR MTHEMBU: That’s correct.

MR MPSHE: Can you tell us the figure or the number of Cosatu officials that were killed in that area?

MR MTHEMBU: On that day there were no other people who were attacked. This is what I heard when I came out of hospital but before I went to Shandu’s place people who had been killed, there were over five of leaders, the leaders were over five. That is the reason why I was asked to go to Mandene.

MR MPSHE: Now over to page 7 of your affidavit still ...(intervention)

MRS KHAMPEPE: Mr Mpshe, can I will your permission just interpose for consistence? Mr Mthembu, can you name these five leaders who had been killed?

MR MTHEMBU: The one that I remember is Ken Shandu but that was the last person to be killed, he was a prominent person and that’s why I had to be asked to go to Mandene.

MRS KHAMPEPE: And when was Ken Shandu killed, can you remember? The month not the date because I’m sure it won’t be possible for you to remember the date.

MR MTHEMBU: He was killed during November 1989.

MRS KHAMPEPE: And the others? Any of the others that you can remember out of the five?

MR MTHEMBU: Others were killed before Ken was killed.

MRS KHAMPEPE: The names thereof, are you able to give us their names?

MR MTHEMBU: I don’t remember their names because they were not people whom I knew very well.

MR MPSHE: Thank you Ma’am. The last one who was killed that you mentioned, Ken Shandu, where was he killed?

MR MTHEMBU: He got killed at Sindumbele.

MR MPSHE: Where in particular ...(inaudible)

MR MTHEMBU: He had a homestead of Mr Shandu just outside the township, the township of Sindumbele.

MR MPSHE: By Shandu are you referring to Vincent Shandu the one you were his bodyguard?

MR MTHEMBU: I’m referring to Kenny Shandu.

MR MPSHE: Are you saying Kenny Shandu? Kenny Shandu was killed just outside the house of Vincent Shandu?

MR MTHEMBU: No translated answer.

CHAIRPERSON: Are you putting that to him?

MR MPSHE: I’m trying to get clarity on there.

CHAIRPERSON: Well what he said he was killed at Sindumbele, he had a homestead just outside the township. I don’t recollect him having mentioned just outside the house of the other person.

MR MPSHE: Mr Chairman, I heard them interpret to me, the homestead of Shandu. Did you say he was killed outside the house of Shandu?

MR MTHEMBU: They are nervous in the township. His home is just outside the township but near, Shandu’s house is in the township.

MR MPSHE: Was this Shandu who was killed, killed in his own house?

MR MTHEMBU: That’s correct, he was killed in his home.

MR MPSHE: Referring to page 7 of your affidavit once more, the last paragraph thereof which I will quote for your convenience:

MR MTHEMBU: That was my aim, to protect myself and the people who were inside the house.

MR MPSHE: Was this your only aim, is it the only reason why you shot, to protect these people and nothing else?

MR MTHEMBU: The reason, it was because people were shooting into the house where I was in and I had to shoot back to protect people who were with me in the house at that time.

MR MPSHE: Will I be correct if I say that you would have shot at anybody who was shooting at the house, you didn’t have any particular person or persons in mind, you were to shoot against or at?

MR MTHEMBU: I didn’t intend to shoot any particular person, I was shooting because I heard the gunshots from outside therefore to protect those who were inside the house, I had to shoot.

MR MPSHE: Put this way, the defence you’re talking about in your affidavit, were you defend the occupants of the house against anything or something in particular?

MR MTHEMBU: I was protecting them because they were attacked before therefore I had to protect them and I had to protect them even at the time when they were getting attacked.

MR MPSHE: You’ll have to forgive me but I’ve got to put it on. Did you have a particular target in your defence?

MR MTHEMBU: It was at night therefore I couldn’t see people who were outside. I was shooting at the direction where I suspected that the bullets were coming from.

MR MPSHE: Thank you Mr Chairman, no further questions.

CHAIRPERSON: I have certain questions which I would rather not ask and if you can supply the information we’d perhaps save a lot of time. Have you got a copy of the charge of indictment that is being brought against him?

MR WILLS: In fact I’ve been requesting that for some time from the Prosecutors at the Regional Court. The charge sheet has not been drawn up. It is simply, I’m told that the charges are in respect of attempted murder. I have, I think in my files I have an updated charge sheet, it has subsequently been changed but if you can bear with me I’ll see if I can assist.

CHAIRPERSON: Well can I tell you what the difficulty that has come to my mind that I have been reading the papers and I have of these weapons before and it is described as a machine pistol.

MR WILLS: Yes.

CHAIRPERSON: Now in terms of our Firearm Act, machine weapons are classified differently from ordinary firearms and in the event of him applying for amnesty he would not be - if it was, if this weapon is, does fall into the category of automatic weapons, it would be a separate offence, a different offence from the ordinary offence of unlawful possession of a firearm and accordingly ...(intervention)

MR WILLS: Yes.

CHAIRPERSON: I think we ought to have more precise details as to precisely what he’s applying for amnesty for. That is to ascertain the nature of the charge. I don’t want to start asking him about the automatic weapon and the effect of it. There is a very detailed description of the weapon in the papers.

MR WILLS: Yes.

CHAIRPERSON: Could you do that, find that out?

MR WILLS: Yes, thank you. Mr Chairperson, I can possibly answer that in that there is obviously by the evidence that’s been supplied, the evidence by the docket, the evidence of the ballistics specialist, there’s obviously the intention to charge and in respect of the more serious offence of a machine pistol. I apologise for not actually making that clear in the application but clearly that is what is intended. He is wanting amnesty in respect of the possession of the particular firearm which is classified as a machine firearm and if one looks at the ballistics report, my recollection is, is that it does work on automatic fire which certainly classifies it as a machine pistol.

CHAIRPERSON: It seems you can’t fire a single shot, you can fire automatic or semi-automatic.

MR WILLS: That is correct, yes.

CHAIRPERSON: Mr Mpshe, I take it you have no objection to us giving proper details of what the firearm’s ...(intervention)

MR MPSHE: I’ve no objections Mr Chairman, I take the point.

CHAIRPERSON: ...(inaudible)

MR WILLS: I have no re-examination, thank you Mr Chairperson.

CHAIRPERSON: ...(inaudible) seemed to have arrived at a convenient time again. How long should we take the adjournment for?

MR WILLS: I have simply one more witness in this matter and I - at the Committee’s convenience as regards the length of the adjournment, I’m prepared to go ahead at any stage.

CHAIRPERSON: Well if we adjourn till 2, we’ll finish easily by 4, won’t we Mr Mpshe?

MR MPSHE: We will Mr Chairman.

CHAIRPERSON: Very well, we’ll adjourn until 2 o’clock.

MR MTHEMBU: (s.u.o).

RE-EXAMINATION BY MR WILLS: Mr Chairperson, may I request an indulgent. There is just one question that I omitted to ask the Applicant. It will take a minute. My learned friend has no objections, can I be permitted to do so?

CHAIRPERSON: ...(inaudible)

MR WILLS: Mr Mthembu, I want you to cast your mind back from when you were outside the house and the police took you back into the kitchen of the house.

MR MTHEMBU: He took me back into the kitchen.

MR WILLS: Okay, can you tell me if you remember whether or not there were any lights on inside the house at that stage?

MR MTHEMBU: The place which we entered which had light was the lounge area. In the kitchen the police light, light on the light - I don’t know what kind of light.

MR WILLS: Are you saying that as you went into the kitchen the police switched the kitchen light on?

MR MTHEMBU: The kitchen light was off. When we entered the kitchen, the police switched the lights on.

MR WILLS: Thank you, no further questions.NO FURTHER QUESTIONS BY MR WILLS

MR WILLS: Thank you Mr Chairperson, members of the Committee, I call Mr Vusimusi Israel Mtule as the second witness for the Applicant.

VUSIMUSI ISRAEL MTULE: (sworn states)

EXAMINATION BY MR WILLS: Mr Mtule, you’re a member of the ANC?

VUSIMUSI ISRAEL MTULE: That’s correct, I’m an ANC member.

EXAMINATION BY MR WILLS: You’re also an active unionist in that you are employed by NUMSA in the Esetebe area as an organiser, is that correct?

MR V I MTULE: Yes, I’m being employed by the National Union of Metal Workers of South Africa as the Branch Organiser.

MR WILLS: How long have you acted as a union official, or been employed as a union official?

MR V I MTULE: I was employed as the union official since 1989.

MR WILLS: Now can you just give the Committee some details of your ANC membership, when did you first become a member of the ANC?

MR V I MTULE: I must say since I was born and bred but I started to become a proactive ANC member as from 1984 and thereafter I was involved in the Trade Union activities in 1989.

MR WILLS: Now just around the time of the incident, the incident in respect of which Mr Mthembu is applying for amnesty, that is in September 1992, prior to that are you able to say whether or not you knew of Cosatu officials or ANC members having violent attacks directed toward them?

MR V I MTULE: Yes indeed, I am aware of too many incidents where the ANC and Cosatu members were being attacked and in some cases their houses were burnt down and lives were also lost in the process of which one of the victims was Ken Shandu.

MR WILLS: Now my understanding is that this violence was not only restricted to the area within which you operated but also was extended to places like Isekaweni, is that correct?

MR V I MTULE: Yes indeed, incidents of that sort did take place around Isekaweni, Mtambeni and other surroundings areas of Mandene.

MR WILLS: Now I want you to focus on the role that you were playing in regard to your ANC portfolio at the time around the attack, what position did you in fact hold?

MR V I MTULE: In fact I must say I was a political commissar in the ANC / MK underground structure.

MR WILLS: Now for how long or when did you first hold that position and for how long did you hold that position?

MR V I MTULE: I had that position from having obtained the military training in 1985.

MR WILLS: And in respect of which area were you deployed?

MR MTULE: I was deployed to be rendering the organising mission of the ANC around the North Coast of which Mandene was one of the areas that I was responsible for.

MR WILLS: Now you’ve heard the Applicant in his evidence make reference to a person by the name of Msizi Mkunu, do you know that person?

MR MTULE: Yes, I know Msizi Mkunu as a Commissar in the military but he was later a commander of Umkhonto in Northern Natal by the time when the incident took place so he was a commander in chief in the office of ...(inaudible) security of the ANC.

MR WILLS: Now do I understand your evidence that he was in fact the overall commander for the Northern Natal region of the ANC at that stage?

MR MTULE: Yes, correct.

MR WILLS: Now do you bear any knowledge of the evidence that the Applicant gave in respect of the instructions he received from Mr Mkunu to guard the house of Mr Shandu and in fact Mr Shandu’s existence?

MR MTULE: Yes indeed, I was aware as I used to coordinate the activities of the MK in the area, so I am aware of the instructions that were given to Dumisani by Msinzi being the commander in chief.

MR WILLS: Now Mr Mthembu’s also testified to the effect that he was supplied a Stetchkum machine pistol from Mr Mkunu, can you testify to the Commission whether or not this is in fact the truth?

MR MTULE: This is the truth and nothing, it is the truth, he was given the Stetchkum as an instrument to use and safeguard the life of Mr Shandu who was in the brink of being attacked.

MR WILLS: Now turning to the actual event itself, that is the events of the morning of the 2nd of September 1992, Mr Mthembu has testified that you were in the house and we know that is in fact correct.

MR MTULE: Yes indeed, I was in the house.

MR WILLS: Now can you describe briefly what occurred from, why you woke up and thereafter.

MR MTULE: I was fast asleep and I hear the storm of gunshots firing into the house of the room in which we were and the glasses that came up around my face made me to actually wake up apart from the noise of the gunshot that I heard when I woke up.

MR WILLS: Now in bundle of documents that I have been supplied with by the Truth Commission, there are statements from the police members who conducted the raid and they are emphatic to the effect that they knocked on the door and notified that they were the police prior to any shots being fired, can you comment on that?

MR MTULE: I vehemently oppose that statement made by the police as being the total blue lie. The only time and the only moment when I ever heard a gunshot that came through and the glasses that came through the window and thereafter the noise of a man who was saying Willem skiet, Willem skiet (Willem shoot, Willem shoot) -that was a command from outside.

MR WILLS: Now I showed Mr Mthembu some photographs which he identified as being taken of Mr Shandu’s house. I would like you to have a look at these photographs. You will notice that there are, they are photographs which depict certain bullet holes in both the interior and exterior walls of the house. Are you able to tell this Committee whether those bullet holes were there before the attack?

MR MTULE: I must testify that these bullet holes were not in the walls before the attack, they only happened to be the holes in the wall after the incident, in other words they are a direct result of an attack by the police.

MR WILLS: Now you’ve heard Mr Mthembu give evidence to the effect that after the shooting ceased, the occupants of the house were essentially flushed out and ordered to come out with their hands up, one by one.

MR MTULE: Yes indeed, that happened after Vincent Shandu has asked who the attackers were.

MR WILLS: At the time the bullets were going off, did you know who the people were outside who were shooting?

MR MTULE: No, we didn’t know who the people outside were except that I could only, as a person who also understands and speak fluent Afrikaans, I could only hear the voice of a man saying skiet (shoot) and it may be upon that assumption that one would assume that it’s a certain koevoet operation. That’s what comes into my mind I must say.

MR WILLS: Okay now you went, you together with others were essentially under the arrest of the police on the outside of the house, is that correct?

MR MTULE: Yes indeed.

MR WILLS: Can you tell me what happened to you when you walked outside, how were you asked to position yourself?

MR MTULE: In the first place I must say I was half dressed having only the ...(inaudible) with me and we were commanded to come out. The man whom I identified later as Mr Botha said, come out - put your hands in the air otherwise I shoot, otherwise I shoot, come out, come out, come out. Then we had to come out having our sort of arms hanging over like this, not like this otherwise he was not going to see them.

You could firstly come out with your hands and then he could - he probably grabbed me so to say right up here and he brought me down just to the floor and I had to lie down. When I laid down on the floor, just like this and ...(inaudible) had to put the firearm - it was a R5 that was brought before my head like this and he said Mr Mnjeni, watch out this one, if he moves just shoot. The R5 was just on top of the head right straight throughout the whole process.

MR WILLS: Okay, I think the evidence of Mr Mthembu was - if my memory serves me well - was that he actually came out after you, do you recall the order when people came out?

MR MTULE: Yes indeed, Dumisani came after me. It was firstly Vincent Shandu then I came and to all of us the man by the name of Mr Botha used to say - come out otherwise I shoot, ...(inaudible) otherwise I shoot. It was a very hard command.

MR WILLS: Okay now, are you in a position to tell the Committee whether or not Mr Mthembu was injured at that stage of the proceedings?

MR MTULE: I must say we were commanded to come out one by one until Dumisani came too and then Mr Botha grabbed him and then three of them, three of those policemen went inside with Dumisani and just a couple of minutes, it wasn’t even two minutes, whilst we were outside lying on the floor they went inside with him and all of a sudden we heard Dumisani screaming, saying ... Xhosa, don’t shoot at me.

And then we heard a gunshot, it was all over from there. It just became quiet and of course although I was not allowed to move and peep around but fortunate enough my head was lying using this ear so I could properly see Dumisani coming up, coming back with them whilst they were grabbing him just here - like this. They took him back to their vehicle. That was the only time that he was transported to the hospital so to say after having been shot inside the house.

MR WILLS: Now are you able to say whether or not you saw if the police, persons who took him inside the house were armed.

MR MTULE: Yes, I saw clearly three men fully armed, each one for instance Mr Botha, the man who was on the forefront was carrying a pistol, a 9mm and an R5 that was there.

MR WILLS: Were any of these arms pointed at Mr Mthembu’s direction?

MR MTULE: Yes, they were being pointed right straight into his face whilst others were looking after us at gun point - not far away, very close.

MR WILLS: You were eventually taken and detained, not so?

MR MTULE: Yes indeed, from that incident I was taken to Ishowe prison for what I could term as a traumatic torture, not just interrogation.

MR WILLS: Do you have anything further that you wish to add?

MR MTULE: Yes indeed, I must say that during the course of interrogation the police treated me brutally, it was very inhuman and unkind in such a way that interrogation went through for almost eleven hours on that night and my lawyer too John Wills was denied the right to see me and during the course of interrogation they used to beat me, they used to make sort of unacceptable remarks about being Black. They said - "ek glo nie die Kaffir se idiologie, jou hare is kort" (I don’t believe in the Kaffir’s ideology, your hair is short) in most of the things that he used to say to me. When they went to the house they knew there were terrorists there, I must agree that I’m a terrorist and at the end of the day he had to make a statement and he forced me to sign it. He said if you don’t sign the statement - jy sal ...(inaudible) netnou (you will ...(inaudible) just now).

MR WILLS: Now I noticed that your statement, it appears sorry, Committee members.

CHAIRPERSON: ...(inaudible)

MR WILLS: Yes. The statement that you made or that you were forced to sign should I say appears at pages 43 on our bundle. I see that the person who commissioned this statement is a person by the name of E J Louw and from the other evidence that is available to us in this bundle, it appears that this same Mr Louw was involved in the raid, is that correct?

MR MTULE: Yes indeed, he was a tiger in that jungle that Mr Louw.

MR WILLS: Thank you, I have no further questions for this witness.

MR MPSHE: Mr Chairman, I do not have questions thank you.

MRS KHAMPEPE: Mr Mtule, do you know how long Mr Mthembu was the bodyguard of Mr Shandu?

MR MTULE: Yes, it’s almost nine months down the line.

MRS KHAMPEPE: Now in your evidence you stated that you were expecting an attack or that Mr Shandu was at the brink of being attacked.

MR MTULE: Yes indeed, we were expecting attacks.

MRS KHAMPEPE: From whom were you expecting an attack?

MR MTULE: Attack could come from all angles where enemies are. Those political parties that were anti-liberation movements, like the ANC i.e. we have heard incidents where the IFP so to say, was attacking the ANC activists, members, whoever and also on the other hand, of course it goes without saying we were expecting attacks from the security forces themselves who also did testify to me that when they came by the house they knew that there were terrorists but we were not aware of the security forces to come into the house, we were just expecting attacks from whoever.

MRS KHAMPEPE: Thank you.

MR WILLS: No re-examination, thank you.

MR WILLS: That is the case for the Applicant Mr Chairperson, members of the Committee.

CHAIRPERSON: ...(inaudible) were you aware of the fact that the Applicant was firing shots from inside the house?

MR MTULE: Yes, I became aware.

MR WILLS: I’m sorry Mr Chairperson but I was distracted at the time of your question and I omitted to get the question and the answer. I wonder if I couldn’t ask the interpreter just to let me know what it was, or yourself.

CHAIRPERSON: I asked him if he was aware of the fact that the Applicant was firing from within the house and he said he was, he became aware of it.

MR WILLS: Thank you. That is the Applicant’s case, thank you Mr Chairperson.

MR MPSHE: Thank you Mr Chairman. Mr Chairman, I have no evidence to lead safe to state that only one notified victim is here present today, Mr W J van Schalkwyk as per the sheet. I’ve spoken to him during the lunch break pertaining to legal representation and he said he was not aware thereof but he has been served with all the necessary documents and the document informing him of the availability of legal representation. He indicated to me that he did not understand that document and that is why he did nothing about the issue of a lawyer. He indicated further to me that he did not necessary to testify but if the Committee would permit it, he would appreciate it if he be given an opportunity to secure a legal representative. He is here in present to confirm if the Committee so wishes.

CHAIRPERSON: Have you got a copy of the document served on him?

MR MPSHE: I don’t have ...(intervention)

CHAIRPERSON: Not necessarily of the same one but the ...(inaudible) document.

MR MPSHE: He has here the ones whom I can request that he gives them to us Mr Chairperson.

CHAIRPERSON: ...(inaudible) No sound. Can you hear me? How did you know you had to be here today?

SGT VAN SCHALKWYK: ...(inaudible)

CHAIRPERSON: Sorry, could you come up here somewhere so we don’t have to shout.

MRS KHAMPEPE: ...(inaudible)

CHAIRPERSON: Or if you sit there you can talk into that microphone.

SGT VAN SCHALKWYK: I was called, informed by telephone, it was by a lady if I’m not mistaken with the surname of Msomi.

CHAIRPERSON: I asked you that because I see the notice that you were given says that the application for hearing will be held at the TRC office in

Smith Street on the 5th of August.

SGT VAN SCHALKWYK: Yes that’s right Mr Chairperson, I’ve got another note here which I received afterwards to notify ...(inaudible) that I have to be here today.

CHAIRPERSON: That was a week later, on July the 15th you were told. And I understand from Mr Mpshe that you haven’t engaged any legal - applied for legal assistance despite the fact the original notice said that if you were financially unable you could apply to the Legal Aid Board.

SGT VAN SCHALKWYK: I understand that section Mr Chairperson but as it’s been requested through him, I would like to make use of a legal representative please.

CHAIRPERSON: What have you got to say gentlemen?

MR WILLS: Mr Chairperson I can’t object, I’m committed to the full disclosure of the process and as a result whilst it may be inconvenient I would not oppose an opportunity given by Mr van Schalkwyk to obtain legal representation.

MR MPSHE: Mr Chairman I also cannot oppose Mr Chairman because he will be exercising his rights but I would suggest, in the event of the Committee so decides that he get a legal representation, this matter be treated like the one we postponed this morning.

CHAIRPERSON: ...(inaudible)

MR MPSHE: To be arranged in Durban, thank you.

INTERPRETER: The speaker’s mike is off.

CHAIRPERSON: ... no sound. .....possible to avoid this sort of thing happening and it seems here that the original notice given on the 8th July said the wrong place and the wrong date and I can’t understand how that mistake could have been made. The contact is with somebody in Durban which is not the easiest thing for somebody stationed elsewhere and I think steps should be taken in future to make contact with implicated or concerned parties as soon as possible to explain to them. That’s if even months before - as soon as it is known that a hearing is going to - that an application is going to be held so that adequate arrangements can be made rather than just a few weeks before and much as I regret it, I think that we will be obliged to adjourn this matter. Do you agree? Is there any possibility of obtaining legal advice this afternoon?

MR MPSHE: Mr Chairman, there’s no such possibility because we’ve got to go through the process otherwise we are held with the legal actions if we don’t follow the process.

CHAIRPERSON: ...(inaudible)

MR MPSHE: ...(inaudible)

CHAIRPERSON: ...(inaudible) The other fact that I think should have been drawn to Sergeant van Schalkwyk’s attention is he was the person who was injured, isn’t he?

SGT VAN SCHALKWYK: That’s right.

MR MPSHE: Yes.

CHAIRPERSON: In the course of his duty, while on duty and it seems to be certainly a matter where the Deputy State Attorney would have acted on his behalf, not in a case that necessitates an application for assistance in the legal ...(no sound) This is not a case that has to go to the Legal Aid Board, is it?

MR MPSHE: It is the case.

CHAIRPERSON: Pardon?

MR MPSHE: It is the case Mr Chairman.

CHAIRPERSON: Why, why doesn’t the Deputy State Attorney act for him?

MR MPSHE: Mr Magistrate, it is the case that can still be expedited. A letter can be written to the State Attorney of the area where he is stationed and they will take the matter up.

CHAIRPERSON: ...(inaudible) Couldn’t he be taken to see the Deputy State Attorney in Pietermaritzburg this afternoon for advice to be obtained? Would you be available tomorrow if necessary Sergeant?

SGT VAN SCHALKWYK: If I have to be I will ...(intervention)

CHAIRPERSON: We will adjourn this matter but I would suggest that Sergeant van Schalkwyk be taken by somebody who has full knowledge of what has happened, to the Deputy State Attorney’s office here, tell him what the position is and it may be that after consultation, the Sergeant will not want to take the matter further, maybe he will but they can notify and you can notify us tomorrow morning what the position is. If some agreement can be reached well and good, if not it will adjourn to another date so you will have adequate time, we’re not trying to rush you Sergeant. I don’t know what particular aspects you want to discuss with your lawyer but I think you should be given legal advice as soon as possible.

SGT VAN SCHALKWYK: Thank you Sir.

CHAIRPERSON: So this matter is tentatively adjourned until tomorrow.

MR WILLS: I’m sorry Mr Chairperson, is the implication of that decision that the Applicant and the witness must attend tomorrow as well?

CHAIRPERSON: I suppose so because they may wish to ask some questions.

MR WILLS: Possibly it ...(intervention)

CHAIRPERSON: Where are they going to?

MR WILLS: They - first of all the Applicant is in fact indigent. The witness assisted in bringing him here from Sindumbele this morning. The Applicant made his way from Matubatuba for Sindumbele yesterday. They are not in a position where they have got accommodation overnight and so the - if they were required to be here tomorrow, it would be quite difficult but possibly I can come - I’ll consult them and see - what I thought might be ...(intervention).

CHAIRPERSON: I think we should make arrangements to provide accommodation for them or contribute their accommodation, when I say we I mean the TRC. What I was going to suggest is if you could perhaps keep in touch with the Deputy State Attorney. If nothing is going to happen which is the probable outcome, then let them go home.

MR WILLS: Yes.

CHAIRPERSON: If, however - no I think, the more I think about it there it would not be necessary for them to be here tomorrow. I cannot imagine if the Deputy State Attorney does advise the Sergeant that he should be represented, obviously the representative will want to consult with the Sergeant, will want to read the papers and will not be ready to go on tomorrow. The only circumstances in which we can go on tomorrow is if the advice the Sergeant gets is to let the matter rest for the present time and does not intend to take any further part, in that case we can dispose of the matter but I think we cannot expect certainly, to be unreasonable to expect them to be in a position to proceed tomorrow so I think you can release the Applicant and his witness. We will adjourn the matter merely to cover the position that they may not want to lead further evidence, they merely want to say something or - so we’ll adjourn it until 9 o’clock tomorrow morning. Were you planning to stay in Pietermaritzburg Sergeant?

SGT VAN SCHALKWYK: Mr Chairperson, at this stage not but I’m used to travel so I can ...(intervention)

CHAIRPERSON: Well let’s leave it. I think you can make the arrangements if the Deputy - well again, if the Deputy State Attorney is merely going to send someone here to make formal submissions on your behalf, you needn’t be here either. It’s only if you’re going to give evidence that you will be required to be here and it’s a matter you can arrange with him.

SGT VAN SCHALKWYK: I will arrange with him Sir.

CHAIRPERSON: And I think if you could, just in the hope that we may be able to dispose of it if Mr Mpshe could arrangements and Mr Wills can perhaps tell such as to where he is to be found, he’s not very far away is he?

MR WILLS: Fortunately nothing is very far in Maritzburg.

CHAIRPERSON: And take him now and see what can be done but I want you to make it clear to the Deputy State Attorney, we are not putting any pressure on him to proceed tomorrow unless after he has spoken to the Sergeant he decides that it can be disposed of easily tomorrow. He wanted to obtain further information, if he wants to consult further we will certainly grant him an adjournment to do so and he need not be represented if he merely notifies us that he desires an adjournment, the matter will be adjourned. You can tell him that, thank you. We will now adjourn till 9 o’clock tomorrow morning and I hope Sergeant you get things sorted out.

SGT VAN SCHALKWYK: Thank you Sir.

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