MR NGUBANE: Mr Chairman, may I ask for leave to call Mr Mbutho.
CHAIRPERSON: Page 57. Mr Mbutho, please put the earphones on.
FANIE SIMPIWE MBUTHO: (sworn states)
CHAIRPERSON: Thank you, you may sit down. Mr Ngubane?
EXAMINATION BY MR NGUBANE: Thank you Mr Chairman. Mr Mbutho, you were born on the 14th of March 1971 at Umkomaas in kwaZulu-Natal, is that correct?
MR MBUTHO: Yes, it is the truth.
MR NGUBANE: When you were arrested in 1990, did you reside in this area and did you regard that as your permanent home?
MR MBUTHO: Yes.
MR NGUBANE: In your application you say that at some stage, in 1985 to 1990, there was a clash between the UDF and the IFP. Did you belong to any of these organisations during that period?
MR MBUTHO: I was the UDF member.
MR NGUBANE: When did you become a UDF member?
MR MBUTHO: In 1985.
MR NGUBANE: Did you become a member of the UDF until the ANC was unbanned in or about 1990?
MR MBUTHO: Yes.
MR NGUBANE: And before I lead you on further evidence, I noticed that on page 58, paragraph 9(4) you say - well, what you say has been interpreted in English as I had stabbed him with a tomahawk, the one I carried when I was in court but in Zulu, at page 66, you say that the tomahawk you carried, was when the case or the incident happened, is that correct?
MR MBUTHO: Yes, it is the truth.
MR NGUBANE: When you say you were carrying the tomahawk when the case happened, you used the word "icala", did you mean when you were in court or when Mr Mkhize was killed?
MR MBUTHO: When he was killed.
MR NGUBANE: All right, let's to back now. You have heard evidence of the applicants that went before you, to the effect that there was violence in your area, between the IFP and the UDF in 1985 to 1990, is that evidence correct?
MR MBUTHO: Yes, it is the truth.
MR NGUBANE: And you have heard the role that was played by the deceased, as the IFP man and as one of the people that attacked, do you confirm what has been said by the two applicants?
MR MBUTHO: Yes, I confirm that is the truth.
MR NGUBANE: Do you also confirm that there was at some stage a decision to eliminate him together with other people who were troublesome to the United Democratic Front?
MR MBUTHO: Yes.
MR NGUBANE: On the - would you have been part of that decision if you were not involved in political activities?
MR MBUTHO: No, I wouldn't.
MR NGUBANE: On the 7th of November 1990, you participated in the killing of the deceased, is that right?
MR MBUTHO: Yes. It is the truth.
MR NGUBANE: What was your role when the deceased was killed?
MR MBUTHO: I used the weapon, a tomahawk weapon.
MR NGUBANE: At what stage, well, how did you use this weapon, the tomahawk?
MR MBUTHO: After the other applicants had shot him, I actually contributed by using the tomahawk.
MR NGUBANE: I noticed that at page 58, paragraph 9(4) in English it is interpreted as I had stabbed him with a tomahawk, but in Zulu you used the word "namtagula" which means you hacked him. Is the Zulu inscription correct or is the English translation correct?
MR MBUTHO: It is the Zulu version.
MR NGUBANE: In other words, you didn't stab him, you hacked him with the tomahawk?
MR MBUTHO: Yes.
MR NGUBANE: Right, can you explain to these Honourable members of the Committee, at what stage did you use this tomahawk to injure the deceased?
MR MBUTHO: I used the tomahawk after he was shot.
MR NGUBANE: Was he laying down or was he sitting, what was the position?
MR MBUTHO: By that time, he was trying to protect himself.
CHAIRPERSON: Was he laying down or was he standing u?
MR MBUTHO: He was falling and also standing up?
MR NGUBANE: Thank you Mr Chairman. How many times did you hack him with the tomahawk?
MR MBUTHO: Several times, I can't quite remember.
MR NGUBANE: Where about on his body did you hack him, can you recall?
MR MBUTHO: On the head and also on the hands.
MR NGUBANE: I see. Was there a stage when you tried to chop off his hands as he was wrestling with the firearm that was in the possession of one of the applicants?
MR MBUTHO: Yes.
MR NGUBANE: And was your purpose in doing that, were you trying to make him let loose the firearm that he was grabbing and trying to dispossess?
MR MBUTHO: Yes, indeed.
MR NGUBANE: Okay. You have heard the other applicants indicating that they would not have killed the deceased if they were not doing that in order to advance the standing of the ANC. Does that apply to you?
MR MBUTHO: Yes, it is like that.
MR NGUBANE: Did you hope that by eliminating Mr Mkhize, you would somehow let the attack on the UDF subside to a certain extent?
MR MBUTHO: Yes, I had that hope.
MR NGUBANE: We have heard the evidence of Mr Hlongwa saying that he has on his behalf and on your behalf, tried to contact the families of the deceased. Is it also a wish to contact the families of the deceased?
MR MBUTHO: Yes, we did.
MR NGUBANE: And do you have a message for them for what you did?
MR MBUTHO: Yes.
MR NGUBANE: Yes, if they were here, what would you have wished to tell them?
MR MBUTHO: If they were here, I would actually reveal that I sympathise with them.
MR NGUBANE: Would you be prepared to meet them and express your remorse to them?
MR MBUTHO: Yes.
MR NGUBANE: Since you have told the truth about the incident, as to how the incident happened, can you tell the Committee how you feel after having told the truth?
MR MBUTHO: Yes.
MR NGUBANE: Please do so.
MR MBUTHO: I feel free, if I am able to speak like this.
MR NGUBANE: Do you accordingly apply that you be granted amnesty and do you submit that your actions were politically motivated and you did those actions with a specific purpose of advancing a political objective?
MR MBUTHO: Yes.
MR NGUBANE: Where did you get the tomahawk from that you hacked Mr Mkhize with?
MR MBUTHO: It was mine.
MR NGUBANE: I see. Thank you Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY MR NGUBANE
CHAIRPERSON: Thank you Mr Ngubane. Ms Thabete, do you have any questions to ask the witness?
CROSS-EXAMINATION BY MS THABETE: Three questions Mr Chair. Mr Mbutho, would it be correct for me to say Mr Msani, Mr Hlongwa and Jogolo Cele were your friends?
MR MBUTHO: Yes.
MS THABETE: Yes, they were your friends?
MR MBUTHO: Yes, both of them.
MS THABETE: Did anyone give you an instruction or an order to go and kill Mr Sixtus Mkhize? I am asking you this question because according to the other people, the other applicants, you are the one that went to them to tell them that Mr Mkhize was in the area. Had anyone given you an instruction to go and kill Mr Mkhize?
MR MBUTHO: No one.
MS THABETE: Why did you choose Mr Hlongwa, Mr Msani and Mr Cele, why did you choose them specifically, especially because you say they were your friends, to go and kill Mr Mkhize?
MR MBUTHO: Those are the people who were nearby my place.
MS THABETE: No further questions.
NO FURTHER QUESTIONS BY MS THABETE
CHAIRPERSON: Thank you Ms Thabete. Do you have any re-examination Mr Ngubane?
MR NGUBANE: None Mr Chairman, thank you.
NO RE-EXAMINATION BY MR NGUBANE
CHAIRPERSON: Mr Sibanyoni, do you have any questions to ask the witness?
MR SIBANYONI: No questions Mr Chairperson.
CHAIRPERSON: Mr Lax?
MR LAX: Just one question Chairperson. Mr Mbutho, why didn't you use your shotgun?
MR MBUTHO: By the time I arrived at Palela, he didn't have a weapon at that particular time.
MR LAX: So are you saying that you gave your shotgun to him?
MR MBUTHO: Yes.
MR LAX: Where did you get the shotgun from?
MR MBUTHO: It was mine.
MR LAX: Yes, but where did you get it from?
MR MBUTHO: I made it myself.
MR LAX: It was a home made firearm then?
MR MBUTHO: Yes, it was home made.
MR LAX: You see, when Mr Msani gave his evidence, he spoke of two shotguns and one home made firearm. He didn't say yours was a home made firearm, he said Palela's was a home made firearm.
MR MBUTHO: The one that was carried by Palela, was mine.
MR LAX: But you see, he spoke about three firearms. He said he had his shotgun, you had your shotgun and Palela had a home made firearm, shotgun.
CHAIRPERSON: My note on this said and I am reading from my notes on Mr Msani's evidence, I had a shotgun, that is Msani, as did Mbutho. Mbutho also had a tomahawk. Cele had a bush knife and then Palela took Mbutho's gun, we divided into two groups.
MR LAX: Thank you Chairperson, I could quite easily have misheard it. You didn't shoot the deceased at all?
MR MBUTHO: Not at all.
MR LAX: Where did you get the ammunition for your firearm?
MR MBUTHO: The ammunition for the gun?
MR LAX: Correct?
MR MBUTHO: We used to get that from the community.
MR LAX: Well, who in the community would give it to you?
MR MBUTHO: If I didn't have bullets or ammunition, I would actually go to other comrades and ask for help.
MR LAX: Yes, but why are you not telling us who you went to?
MR MBUTHO: There is a lot of people that I actually went to.
MR LAX: I am just getting the impression that you are not willing to tell us who the people are.
MR MBUTHO: No, it is not like that.
MR LAX: When this SDU was formed, you heard me say to Mr Msani that it was basically a continuation of a previous group of young people, who had already been defending the community, is that right?
MR MBUTHO: Yes, it is so.
MR LAX: So there was nothing special about being an SDU, you had already been doing this for a number of years?
MR MBUTHO: Will you repeat your question?
MR LAX: There was nothing special about being an SDU, you had already been doing this kind of work, for a number of years?
MR MBUTHO: Yes.
MR LAX: Just as a matter of interest, why haven't you applied for amnesty for any other acts that you have committed besides this one that you have been convicted for?
MR MBUTHO: This is the first one that I was involved, directly involved.
MR LAX: So you weren't involved in any other attacks on any other people on defending yourself and your community against any other people, in all the time from 1985 till 1990 and going on until you were arrested? Are you seriously telling us that?
MR MBUTHO: Yes, indeed.
MR LAX: So what sort of SDU were you involved in then if this was the only incident that you were involved in? Was there no violence in the area?
MR MBUTHO: There was violence.
MR LAX: But you weren't involved in it?
MR MBUTHO: No, I wasn't.
MR LAX: No further questions Chairperson.
CHAIRPERSON: Mr Mbutho, what was the approximate age of the deceased?
MR MBUTHO: I would actually estimate it at 40 something.
CHAIRPERSON: Mr Ngubane, do you have any questions arising out of questions that have been put by members of the Committee?
FURTHER EXAMINATION BY MR NGUBANE: Yes Mr Chairman, thank you. You have been asked the question who were the people that you got the ammunition from. The question is not confined to the ammunition that was used to Mr Mkhize. Can you recall at any stage, acquiring ammunition from some other people and are there any people that you can recall from whom you acquired this ammunition?
MR MBUTHO: It is has been a long time.
MR NGUBANE: Yes, can you recall anyone of them that gave you a firearm, sorry the ammunition?
MR MBUTHO: I don't remember any one.
MR NGUBANE: Did you buy it or was it given to you for free?
MR MBUTHO: No, it was for free.
MR NGUBANE: Did Mr Luthuli, the Commander at any stage, give you ammunition?
MR MBUTHO: Will you repeat the question?
MR NGUBANE: The Commander of the SDU, Mr Luthuli, did he at any stage give you ammunition, if you can recall?
MR MBUTHO: No.
MR NGUBANE: Thank you, I have no further questions.
NO FURTHER QUESTIONS BY MR NGUBANE
CHAIRPERSON: Thank you Mr Ngubane. Ms Thabete, do you have any questions arising?
MS THABETE: Would Mr Chair just allow me to make a follow up on the question I asked earlier on?
CHAIRPERSON: Yes certainly, and then I will give Mr Ngubane another chance if there is something arising from it.
FURTHER CROSS-EXAMINATION BY MS THABETE: Thank you Mr Chairman. Mr Mbutho, what would you respond to a statement which says that because Mr Msani and them were your friends, and because Mr Mkhize had attacked Jogolo Cele before, you saw Mr Mkhize, you approached your friends, you decided to go and revenge and kill him. What would be your response to that statement?
MR MBUTHO: It wasn't necessarily revenge.
CHAIRPERSON: What do you mean it wasn't necessarily revenge?
MR MBUTHO: I say so because we were just attacking each other, both sides.
MS THABETE: So I would be correct to say the main aim for you attacking Mr Fanana Mkhize, was not because he had attacked Mr Jogolo Cele who happened to be your friend?
MR MBUTHO: Yes, that is the truth.
MS THABETE: No further questions.
NO FURTHER QUESTIONS BY MS THABETE
MR LAX: You see in your application, if you look at the translation at page 60, 10(b) at page 60, you say here that Sixtus was attacking us with his followers. The deceased had shot one of us, claiming that he had burnt his store. That must be a reference to Cele and unfortunately for them, Cele didn't die.
That is correct, isn't it?
MR MBUTHO: Yes, it is the truth.
MR LAX: You then go on to say that on the 7th of November the deceased had come to our place, visiting his mother. We then caught him and stabbed him to death. That looks and sounds very much like revenge for having shot Cele and that is the way you have put it here?
You go on to say that the reason you didn't attack the family is that some of them were our members. It looks to me from what you have said here, and again it might be a problem with the translation, but you can correct me if I am wrong, that the reason you were looking for this man in particular, was that he had shot Cele and he never managed to kill him. What do you say to that?
MR MBUTHO: Yes, Mkhize was involved in the shooting of Cele, but when we took a decision to kill him, it wasn't due to the fact that he shot Cele, but it was that he was attacking us, he was with the ZP's and the IFP's.
Also at Cele, it would be involved.
CHAIRPERSON: Sorry Mr Mbutho, approximately before the 7th of November, that is the day that the deceased died, was the attack by the deceased upon Mr Cele carried out?
MR MBUTHO: Cele was attacked early 1990.
CHAIRPERSON: So it was some months before the death of the deceased?
MR MBUTHO: Yes, but I wouldn't actually be sure how many months, but to a certain extent, some months.
MR LAX: In your reply to the question, when you took a decision to kill him, when exactly did you take this decision to kill him, was it on that day, was it before that? Explain to us please.
MR MBUTHO: It has been a long time that we have been attacking him, but in vain.
MR LAX: You still haven't answered my question, when did you take that decision to kill him?
MR MBUTHO: We took it on that particular day.
MR LAX: Who is the we?
MR MBUTHO: It is myself and the other two applicants and the others, who did not apply.
MR LAX: Where were you when you took that decision, and how did it come about, did you meet, did you have a discussion before you went to Mkhize's family's house?
MR MBUTHO: We didn't have a meeting, however, we just had a quick conversation that Mkhize was seen.
MR LAX: Carry on.
MR MBUTHO: Thereafter I actually approached or I actually contacted applicant Msani and then we met. We conversed because what actually frightened us is that Mkhize was on foot, but most of the time, whenever he was going to a place, he would be in a car with some IFP members.
MR LAX: Are you saying that you and Msani had a discussion and you and Msani took this decision?
MR MBUTHO: Yes, jointly, all of us.
MR LAX: Well, you see, you have only told us about you and Msani having a conversation. You haven't told us where the other conversation happened, that is why I am asking you to explain this.
MR MBUTHO: Yes, it is applicant Msani, Hlongwa, Mabuno Hlongwa and Jogolo Cele.
MR LAX: What I am trying to understand is, where did the five of you or the six of you meet, the five of you meet to make this decision?
MR MBUTHO: We met on the route.
MR LAX: Thank you Chairperson.
CHAIRPERSON: Thank you. Mr Ngubane, do you have any questions arising?
FURTHER EXAMINATION BY MR NGUBANE: Yes Mr Chairperson. Mr Mbutho, you say that before you could kill Mr Mkhize, you had made several attempts to kill him, is that correct?
MR MBUTHO: Yes, it is the truth.
MR NGUBANE: And on those occasions, was there already a decision to kill Mr Mkhize?
MR MBUTHO: Yes.
MR NGUBANE: And when you met on the day that you killed him, that was a confirmation of the previously existent decision to kill Mr Mkhize, is that correct?
MR MBUTHO: Yes, it is the truth.
MR NGUBANE: Right. You have been asked about what you say at paragraph 10(b) because what is said there, seems to create the impression that the only reason that you killed Mr Mkhize, was that he had shot Mr Cele.
At page 59, paragraph 10(a) under state political objective sought to be achieved, you mentioned that there was a clash between the ANC and the IFP, Mr Sixtus Mkhize was leading IFP and they were attacking us together with the ZP. Was that one of the reasons that made you kill Mr Mkhize?
MR MBUTHO: Yes.
MR NGUBANE: Thank you Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY MR NGUBANE
CHAIRPERSON: Thank you. Mr Mbutho, that concludes your evidence, you may stand down now.
MR MBUTHO: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Ngubane?
MR NGUBANE: Thank you Mr Chairperson, that concludes the application for the applicants.
CHAIRPERSON: Ms Thabete?
MS THABETE: No questions, thank you.
CHAIRPERSON: No further witnesses?
MS THABETE: No further witnesses. Mr Chair, maybe I should put it on record that the victims' next of kin, the deceased's wife was notified of the hearings, but she expressed the fact that she wouldn't like to come.
But I spoke to her this morning.
CHAIRPERSON: Thank you Ms Thabete. Do you know if Mr Luthuli was given notification at all?
MS THABETE: Mr Luthuli was not given notification, because it is the first time that we hear about him, at this hearing Mr Chairman.
CHAIRPERSON: Thank you. Then perhaps a notification in terms of Section 32 might be in order, although the implication doesn't - his implication in this particular event is somewhat remote, because he was unaware that this incident was going to take place before it happening, in that no one reported to him, but in the sense that he is being named as the leader, perhaps he should be given a notice in terms of that. Thank you.
MS THABETE: I will see to that.
CHAIRPERSON: Thank you. Mr Ngubane, are you in a position to present a submission to us now, to argue?
MR NGUBANE: Yes, Mr Chairman.
CHAIRPERSON: Thank you.
MR NGUBANE IN ARGUMENT: Mr Chairman, I submit that the applicants have made out a case. As far as I understand, they have to show that their actions were politically motivated firstly.
I submit that it is not disputed that they were ANC members, UDF members initially. It is also not disputed that during the course of their membership as UDF members, they were recruited to become the members of the SDU's.
I do concede that their recruitment might have been done in an amateurish manner, but nevertheless, I respectfully submit that they were members of the Self Defence Unit.
The story that Mr Mkhize was participating with the kwaZulu police cannot be regarded as being improbable. I respectfully submit that the TRC hearings are full of that history of the kwaZulu police collaborating with Inkatha and I respectfully submit that what the applicants have said, should be taken as the truth.
Regarding disclosure, I submit that in so far as relevant facts are concerned, they have fully disclosed their activities in the killing of the deceased. They have done so in great detail. Although I concede that there is an aspect by the last applicant, Mr Mbutho which seems to be unsatisfactorily, that he didn't indicate who the people he got the ammunition from, were.
But I submit that compared to the overall picture of what he has given to the members of the Committee, he has made a full disclosure and his failure to give the names of the people that gave him firearms, could be attributed to a lapse of memory.
This incident happened in 1992 and this man has been in jail, he has been thinking about some other things and I respectfully urge that his lapse on that score, should not be held against him.
The evidence has been led and the members of the Committee are apprised of the evidence, and I respectfully submit that to run through all the evidence would be a waste of time, unless there are specific questions which the Committee wishes me to respond to, I cannot take my argument further than this, thank you.
MR LAX: Just one thing maybe, you can address us on Mr Ngubane, and that is one of the applicants indicated in his testimony when asked whether they had got Luthuli's permission to do this thing, that the answer was that he would never have approved it because it was against ANC policy to kill opponents. Just in the light of that answer, maybe you could address us.
MR NGUBANE: Honourable member of the Committee, I do agree that this answer seems not to fall in square with what they have been testifying.
But the applicant went further and said that although it was not ANC policy to attack people, the circumstances were such that they had to defend themselves, and from that I gathered that by defending themselves in his mind, it was created that they could kill people if it was necessary.
I do submit that they were told to defend themselves, it seems that that was not defined and it was left carelessly to their discretion to decide what to do, although they knew that the policy was not to kill, but circumstances were such that they decided to kill people, and they understood that as defending themselves. That is all that I can submit here.
CHAIRPERSON: Thank you Mr Ngubane. Mr Thabete, do you have any submissions?
MS THABETE IN ARGUMENT: Briefly Mr Chair. Firstly I would like to put it on record that I don't have any objections, to them being granted amnesty.
Secondly, I think there is a very thin line between two situations here. One scenario is that it is possible that the applicants saw, or it is possible that the deceased had attacked the applicants before, who were ANC and the deceased was IFP.
The deceased came to visit his mum, the applicants saw him, they decided to kill him. It might have been a revenge. That is one scenario.
The second scenario is of course that from the judgement, even from the evidence of some witnesses, I am reading at page 107 of our bundle, where one of the State witnesses did make an indication that the deceased was an IFP member, it would appear that the situation really was one where there was political conflict in the area between the IFP and ANC at Macubeni.
This was not an unusual situation, especially in kwaZulu Natal, where you would find that the ANC would attack the IFP and the IFP would attack the ANC. Basically my submission is that I wouldn't have any objections should the Committee decide anyhow, I would abide.
CHAIRPERSON: Thank you Ms Thabete. Any response Mr Ngubane?
MR NGUBANE: I have none, thank you Mr Chairman.
CHAIRPERSON: Thank you. We will reserve our decision in this matter, and hope that it will be handed down in the near future, in a written form. Thank you.
That then concludes the roll for today.
MS THABETE: It concludes the roll for today Mr Chairman.
CHAIRPERSON: The matter for tomorrow Ms Thabete, is that on course?
MS THABETE: The matters for tomorrow, it is six applicants. I will give you the applications of that too, it is Alfred Mandla Mhlambo, Xolani Braveman Tsotetsi, Mzwandile Justice Magula, Hector Makendanis Kakane. We have also added the application of Tulani Zondi and Xolani Pungula, but it is one incident, all of them.
CHAIRPERSON: Thank you. What time would you suggest would be an appropriate starting time?
MS THABETE: I would suggest half past nine.
CHAIRPERSON: Thank you. That then brings us to the end of today's proceedings. We will be hearing other applications tomorrow morning in this hall, the same venue and we will start at half past nine tomorrow morning. We accordingly then adjourn until half past nine tomorrow morning at this hall, thank you very much.
MS THABETE: Thank you Mr Chairman.
COMMITTEE ADJOURNS
