Amnesty Hearings

CHAIRPERSON: ... start of these hearings, but it was due to matters beyond our control. The applicants were only brought through very late.

Before we start, I would like to just introduce the panel to you. We are all members of the Amnesty Committee of the Truth and Reconciliation Commission. On my right is Mr Ilan Lax, he is an attorney from Pietermaritzburg. On my left is Mr Jonas Sibanyoni, he is an attorney from Pretoria, and I am Selwyn Miller, I am a Judge from the Eastern Cape, attached to the Transkei Division of the High Court.

I would like to ask the legal representatives, please to place themselves on record.

MR WILLS: Thank you Mr Chairperson, I am John Wills, an attorney from Pietermaritzburg, I am acting for the applicant.

MS THABETE: I am Thabele Thabete, I am the Evidence Leader in this matter.

CHAIRPERSON: Thank you. These proceedings are going to be translated simultaneously and in order to benefit from the translation, you have to be in possession of one of these devices. They will be translated into English and Zulu.

English is on channel 2 and Zulu is on channel 3. If you wish to benefit from the translation, please get one of these devices, they are available from the front of the room.

If you don't understand both languages, I can assure you, you will have difficulty in following the proceedings. Mr Wills?

MR WILLS: Thank you Mr Chairperson, I call the applicant.

CHAIRPERSON: Page 481, I think it is, is it? Are you Mr Mzamo Thabani Mlaba? Mr Mlaba, can you push the red button?

MR MLABA: Yes, I am.

MZAMO THABANI MLABA: (sworn states)

CHAIRPERSON: Mr Mlaba, you must make sure whenever you are speaking, that the light is on, because if the light is not on, it doesn't get recorded.

MR MLABA: Okay.

CHAIRPERSON: Mr Wills?

EXAMINATION BY MR WILLS: Thank you Mr Chairperson. Mr Mlaba, are you a member of any political party?

MR MLABA: Yes.

MR WILLS: Can you tell the Committee which political party?

MR MLABA: The ANC.

MR WILLS: When did you become a member of the ANC?

MR MLABA: I was a member of the UDF as from 1986.

MR WILLS: You have indicated by way of your indication that you became a member of a Self Defence Unit, is that correct?

MR MLABA: That is correct.

MR WILLS: Can you explain to the Committee how you became a member of that Unit?

MR MLABA: I was trained in Umtata in the Transkei, to be a member of the Self Protection Unit in kwaXemba. After that period, in 1992, I went to work at the Pietermaritzburg ANC office, protecting Chief Mlaba.

MR WILLS: Where is your home?

MR MLABA: My home is at Cato Ridge, at kwaXemba.

MR LAX: Sorry Mr Mlaba, if you could just sit a little bit away from the microphone, because you are causing some interference. That is fine, just speak normally again, just repeat your answer please.

MR MLABA: I was trained in 1992 at Umtata in the Transkei. On my return, I was deployed to the ANC office in Pietermaritzburg as a bodyguard and protecting Chief Mlaba at the time.

At that time I was staying at (indistinct) at kwaXemba.

MR WILLS: Who organised for you to do this training in the Transkei, at Umtata?

MR MLABA: The Major in the SADF, Mr Skosana. Mr Ntelas Skosana.

MR WILLS: Can you give the Committee the names of persons who accompanied you for this training?

MR MLABA: The person that was with me was Mr Sizwe Zuma. The second was Filo Mandla Mtethwa and the third one was Maniza Mlaba.

MR WILLS: This person that you have mentioned Filo Mandla Mtethwa, was he originally an accused with you in respect of the incident for which you now apply for amnesty?

MR MLABA: Yes, he was.

MR WILLS: And he was with you at the time when you killed the deceased in this matter, that is Nhlamvu Mkhize and Sbusiso Mlaba?

MR MLABA: That is correct.

MR WILLS: Can you tell the Committee why you killed - sorry I with draw that, before we start, you made a statement, an amnesty application to the Amnesty Committee on the prescribed form whilst you were in prison in May 1997, do you recall that?

MR MLABA: Yes.

MR WILLS: And do you confirm the contents of that statement?

MR MLABA: Yes.

MR WILLS: In that statement you have indicated that you shot Nhlamvu Mkhize and your fellow SDU member, shot the second deceased person, Sbusiso Mlaba. Do you confirm that?

MR MLABA: That is correct.

MR WILLS: Can you tell the Committee why you killed this person Nhlamvu Mkhize?

MR MLABA: I killed Nhlamvu Mkhize because he was employed as an informer by the Special Branch at Hammersdale.

MR WILLS: How did you know that that was the case?

MR MLABA: A certain man came to me to give me assistance. This person was a policeman at Webber. The name was Wiseman Twana Mapanga.

He told me that there is a photograph, my photograph at the Webber police station and that the SB and the SADF were after me, because I had been trained in the Transkei.

When I asked him how he knew about this, he said he was working with this informer. Nhlamvu would come to the area to actually survey ANC members and he will actually report, occasionally, regularly on who - what people were doing and what sort of weapons they had.

I was the person who was actually being sought after because I was actually older than the rest of the boys with whom I had been trained.

MR WILLS: Is it the effect of your evidence that this person informed the Special Branch about your operations?

MR MLABA: That is correct. On one day, when Wiseman informed me that I should actually be careful of this person because he normally arrives at the police station to report, on one day I did not go to the ANC office and I saw this man going into the police station, and I was satisfied that yes, that is where he worked.

In that way I was also not free, I was harassed by the police and the soldiers. I would have to stay away from home, and sleep away from home. If Nhlamvu had been to my area, I would not be able to rest. Even my family knew about this, that I had a problem. The SADF were after me and the police as well because of this training that I had received.

The SADF and the police were actually enemies to the people who had been trained by the ANC.

MR WILLS: Was your house ever searched, your residence in kwaXemba, was it ever searched by the police?

MR MLABA: Firstly they went to my girlfriend. They called themselves the 121 Battalion from (indistinct), and they requested to search the house and they did so.

When they didn't find anything, there was a small baby, my baby. They actually said that they would kill me, but they would spare me just for the sake of the baby.

I fled. On one day some other soldiers came, I think it was 132 Battalion, they knocked on my door and I opened the door. I had informed my family that if some people come, like the SADF, I will actually increase the volume of the radio and I did this on this occasion.

My family put on the alert, they searched the house. There was a case of beer and one bottle of liquor in the house, which I gave to the soldiers. They left in the morning in the Hippo. I was trying to hold them back, so that everybody will see them when they leave in the morning.

MR WILLS: You obviously took a decision to kill the deceased in this matter. Did you report this to anybody or did you seek the authority for this operation from anybody?

MR MLABA: There was an MK Commander whose name is Linda Godffrey Xaba. I decided to report this matter to him, telling him about my problem.

MR WILLS: And was this before or after you killed the deceased?

MR MLABA: Before I killed him, I went to report to the Commander, the MK Commander.

MR WILLS: What did Xaba have to tell you?

MR MLABA: He said he had nothing to say. The policy of the ANC is if a person acts in this particular matter, he is actually reverting or blocking the road to freedom, so he must be attacked.

MR WILLS: Can you tell the members of the Committee how you in fact performed this operation?

MR MLABA: In 1993 we took a decision that this man should be surveyed and be put under surveillance. He was not coming regularly to our area any more. I learnt that he was staying somewhere at (indistinct) and when we looked for him, we couldn't find him.

He was also reported to be in Pinetown, but we couldn't get hold of him. He arrived ...

MR WILLS: When you say we took a decision to put him under surveillance, who are the persons that made that decision?

MR MLABA: I was with Linda Xaba and Filo Mandla Mthetwa.

MR WILLS: Okay, continue.

MR MLABA: He arrived at about March 1994 and we realised that we shouldn't let him go so that he should be attacked quickly, when the police, his colleagues arrive, he would be late.

This is how it happened. We went to a certain house, Xaba's house. On arrival ...

MR WILLS: When you say we, who do you mean?

MR MLABA: I was with Fila Mthetwa.

MR WILLS: So, Xaba was not around at that stage?

MR MLABA: No, he was not around.

MR WILLS: Continue.

MR MLABA: On arrival, I greeted this person and he greeted us back. I told him that today he has no chance, it was his last day, because his comrades were not around.

I then cocked a G3 rifle and I shot him.

MR WILLS: Whereabout did you shoot him?

MR MLABA: On the thigh and on the chest, he died at the scene.

Sbusiso Mlaba was sitting on the bed and at that time Filo Mandla Mthetwa had a pistol on him, a 7,65. As Sbusiso was trying to flee out of the window, Filo shot at him I think at the back of his head.

When I asked him why he did this, he said he thinks if he flees, he will go and report the matter to the police, and that is why he decided to kill him.

MR WILLS: What did you think about the death of the second person, Sbusiso Mlaba?

MR MLABA: I thought that Filo did the right thing by killing Sbusiso Mlaba because he would have indeed gone to the police and we would have been in trouble, because they were seeking ANC members left, right and centre.

MR WILLS: You were convicted in the High Court in Pietermaritzburg in respect of the deaths of both of these persons, and in respect of the possession of a machine rifle, is that correct?

MR MLABA: That is correct.

MR WILLS: And you received an effective 25 year period imprisonment?

MR MLABA: Yes, that is correct.

MR WILLS: What have you got to say to the family members of the deceased persons today?

MR MLABA: Yes, I would like to start or begin with regard to the Mlaba family. I am very sorry, I deeply regret what happened.

What happened stemmed from the decision to kill Nhlamvu who was an informer. I deeply regret the death of Sbusiso Mlaba who was so young at the time.

In my attempts when I was in prison, I contacted my family and requested them to just go and they went with people from the Nazareth Church to just go bless the family and the graveyard of Sbusiso because I knew what had happened was bad, because we are related to the Mlaba's.

With regards to the Mkhize family, I am deeply sorry and regret what had happened. What happened, was not intentional but was due to the political situation at that time. I ask for their forgiveness.

MR WILLS: Thank you Mr Chairperson, that is the evidence in chief.

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Thank you Mr Wills. Ms Thabete, do you have any questions?

CROSS-EXAMINATION BY MS THABETE: Yes Mr Chairperson. Mr Mlaba, is it true that the kwaXemba area was an ANC area?

MR MLABA: Yes, that is correct.

MS THABETE: Is it also correct that Sbusiso Mlaba the deceased, is part of your family in the sense that your father and Sbusiso's father, are brothers?

MR MLABA: I think that is so, although I had not followed it closely whether we are really closely related.

MS THABETE: So, what are you saying, are you saying that you were not aware that you are related?

MR MLABA: I know that as Mlaba, he is a family member, but I didn't know just how, that in detail.

MS THABETE: Before I speak about the killing of Mr Nhlamvu Mkhize and the killing of Mr Sbusiso Mlaba, I just want to get some background information. You say you and Mr Filo Mandla Mthetwa, decided to go to Lungisani's place, is that correct?

MR MLABA: That is correct.

MS THABETE: What were you going to do there?

MR MLABA: We were looking for Mr Nhlamvu Mkhize.

MS THABETE: Did he stay there?

MR MLABA: That is where he normally used to arrive or he used to stay, when he arrived in the area.

MS THABETE: So what you are saying to me is that you went there with the intention of killing Mr Nhlamvu Mkhize?

MR MLABA: Yes, we had been searching for him for a long time, we decided that if he arrived at the area, we should kill him.

MS THABETE: Okay, you say you killed Nhlamvu Mkhize because he was a police informer, is that correct?

MR MLABA: Yes, that is correct.

MS THABETE: What did he do?

MR MLABA: As I explained before, Nhlamvu used to work with the SB members. I even received this information from a police person from Webber police station.

MS THABETE: So, I am trying to ascertain what did Mr Nhlamvu Mkhize say about you to the policemen?

MR MLABA: He actually told the police that I was a person who was dangerous, because I had received training from Umtata and I was the eldest amongst the people that I have been trained with.

Therefore if they had been able to get hold of me, they would actually have gotten the head of the gang.

MS THABETE: When did you ...

MR LAX: Sorry, if both of you could just be aware that it is being translated, and sometimes you are asking questions before the translation is finished.

MS THABETE: Sorry for that. When did you start living at kwaXemba after you had been trained?

MR MLABA: In 1992.

MS THABETE: When you arrived at Lungisani's place, you found Mr Nhlamvu Mkhize there, is that correct?

MR MLABA: Yes, we found him there.

MS THABETE: Did you ask him any questions about the allegations you had heard about him?

MR MLABA: I did not question him, because we had discussed or I had tried to talk to him previously and he was arrogant and he didn't want to speak to me.

MS THABETE: So you just came in there and you shot him, is that what you are saying?

MR MLABA: I told him Nhlamvu, this is your last day, you are going to be killed today.

MS THABETE: Are you aware that Mr Nhlamvu was an ANC member?

MR MLABA: No.

MS THABETE: I am asking you this because I consulted with the victims, I mean with his relatives, and apparently he was even active during the election time, because when you killed him, it was in 1994, March, just before the elections. Are you saying to me that you were not aware that he was very active in getting voters and supporting the ANC for the elections?

MR WILLS: Sorry Mr Chairperson, if I could intervene here. I am of the respectful view that my colleague is not being entirely fair with her line of questioning. I have had sight of the investigative report of the TRC in respect of this matter, and it is clear from this report that there are independent witnesses in this report, who indicate that the deceased in this matter, was indeed a police informer.

If the purpose of my learned friend's questioning is to try to suggest that the deceased was not such an informer, I would suggest that that would be unfair that she too has had sight of this report.

CHAIRPERSON: Yes. And also it is usual that informers come from the very ranks of the people that they inform on. Whether he was an ANC member or not, is it all that relevant, it doesn't necessarily mean he is not an informer, does it?

MR WILLS: Yes, indeed.

CHAIRPERSON: What are you trying to get at by this line of questioning Ms Thabete?

MS THABETE: What I am trying to get at Mr Chair, is the fact that the applicant states that he was an informer, and after consulting with the victims, I am told that during the time when he was killed, he was very much active in supporting the ANC and also in helping with the voters.

I just wanted to ascertain from him whether he knew about this fact.

CHAIRPERSON: I think there is no harm in asking him whether he knows or doesn't know about that fact.

Do you know about that Mr Mlaba?

MR MLABA: This is the first time that I hear about that. I used to travel the Xemba are extensively as Chief Mlaba's bodyguard.

If somebody was active or doing something, I would have known about that. I don't think what they are saying, is correct.

MS THABETE: Mr Chair, if I can comment about what my learned colleague has said about the IU report.

CHAIRPERSON: Yes?

MS THABETE: The IU report firstly states what the applicant says in his application and then talks about some of the witnesses that gave evidence in court.

I am not sure where my learned friend gets the evidence that there were some witnesses who said that they deceased was an informer, if he can correct me please.

MR WILLS: I will quote from a witness, a paragraph in the report, which I will hand up as an Exhibit, and I quote statement marked 10, was made by Sizwe Christopher Zuma who is a Commander of the Transit in Bodyguards of Provincial Protection Unit for VIP and stationed at Pietermaritzburg provincial offices, in which he stated that he knew Nhlamvu Mkhize because he was a policy spy, who on the other day tried in vain to have them witnesses and other ANC members being killed by Security Forces, after Nhlamvu had lured them into secluded places and disappeared without notice.

Thank you Mr Chairperson.

MS THABETE: Thank you, I am indebted. Regarding the killing of Sbusiso Mlaba, are you applying for the murder of Sbusiso Mlaba?

MR MLABA: Yes, I do seek amnesty for the death of Sbusiso Mlaba because he was killed by Fila who thought that he was fleeing to contact the police.

On their arrival they would have been harsh on us.

MS THABETE: I just want to make sure that I have heard you correctly. You are saying you are applying for his murder because you thought that he was going to go and inform the police about what you had done? Is that correct?

MR MLABA: I seek amnesty for the death of Sbusiso Mlaba, who was killed by my colleague because of the reasons that I have stated before, that he would go and inform the police.

I seek amnesty for the death of Sbusiso.

MS THABETE: Did you try and speak to Sbusiso Mlaba and tried to tell him what was happening, why you were killing Nhlamvu Mkhize and of course the fact that he mustn't go and report to the police? Did you try to talk to him?

MR MLABA: There was no time.

MS THABETE: Can you briefly tell us or tell the Committee members what was political about the murder of Sbusiso Mlaba? What was the political objective?

MR MLABA: It was what was the situation, what we thought of what he would do after the incident, that he would go to the police to report, who would in turn actually trouble us.

That is why Fila decided that he should not be allowed to flee and attacked him.

CHAIRPERSON: Was your uncle not there, Lungisani?

MR MLABA: He had left. He left even before Nhlamvu was attacked.

CHAIRPERSON: You may continue Ms Thabete.

MS THABETE: Thank you Mr Chairman. I am just trying to recollect what you are saying about the political objective of killing Sbusiso Mlaba.

Can I have a moment to consult something please?

MR LAX: Perhaps I can help you, his evidence so far is this that the decision to kill this person was taken by Filo, because Filo thought that this guy was escaping out of the window and would be likely to tell the police about them, and about their activities.

He says now that he aligns himself with that decision, that is his evidence so far.

MS THABETE: If I may get clarification, is he saying they both decided?

CHAIRPERSON: No, he is saying that Filo acted in doing it, and then afterwards he spoke to Filo and said, why did you kill Mlaba and Filo said I killed him because if he got away, he probably would have gone and told the police and then the applicant says that he then agreed with what Fila had done in killing him.

MS THABETE: Two more questions. How well did you know Sbusiso Mlaba before this incident?

MR MLABA: As I mentioned before, this was the first time that I saw him.

MS THABETE: So it would be correct to say that you were not even aware that he was an ANC member as well?

MR MLABA: I did not know of that, I hear about that for the first time.

MS THABETE: No further questions Mr Chairman.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Wills, do you have any re-examination?

MR WILLS: No re-examination thank you, Mr Chairman.

NO RE-EXAMINATION BY MR WILLS

CHAIRPERSON: Mr Sibanyoni, do you have any questions to ask the witness?

MR SIBANYONI: Yes, thank you Mr Chairperson. Mr Mlaba, during the trial Filo told a different version as what you are telling us today, is that so?

MR MLABA: Yes.

MR SIBANYONI: Do you know why?

MR MLABA: Yes, because he came to me at the Pietermaritzburg prison and he explained why he had changed his story in court.

MR SIBANYONI: What did he say?

MR MLABA: He told me that the Murder and Robbery Unit at Pietermaritzburg, had actually bought him off so that I would be actually convicted and he would be acquitted.

MR SIBANYONI: Do you agree that during the trial he said, he denied that he ever killed Sbusiso Mlaba, that in fact it is you who called him and asked him to kneel before you and you killed him, is that so? Is that what he said?

MR MLABA: Yes. Yes, he was being used, he was used by the Prosecutor and the police, so that he would be acquitted and indeed, this is what happened.

MR SIBANYONI: During the trial, he was thoroughly cross-examined and at the end the Judge made some remarks to the effect that he was satisfied with the evidence of Filo and rejected your version. Did you hear the Judge saying that?

MR MLABA: Yes, the Judge should have said this because I was the target.

MR SIBANYONI: If we understand you correctly, at the time according to you, at the time when Filo was shooting Mlaba, you didn't know what he was doing, why he was doing that and you only became aware after you asked him and he explained to you and that is when you aligned yourself with his decision, is that correct?

MR MLABA: Please repeat the question.

MR SIBANYONI: Let me paraphrase my question, at the time Fila shot at Sbusiso Mlaba, you didn't know why he was doing that, is that so?

MR MLABA: I mentioned before why he killed him.

CHAIRPERSON: Just listen to the question please Mr Mlaba. Just repeat it again Mr Sibanyoni.

MR SIBANYONI: Thank you Mr Chairperson. At the time Filo shot at Sbusiso Mlaba, did you know why he was doing that?

MR MLABA: As a trained person, I did think that as he was shooting this person, he must be trying to prevent something.

MR SIBANYONI: Thank you Mr Chairperson, no further questions.

CHAIRPERSON: Mr Lax, do you have any questions?

MR LAX: Thank you Chairperson, just to follow up on the last question. If you thought that at the time he shot, why did you ask him afterwards about why he had shot him?

If, as a trained person, you knew why he shot him, why did you ask him about it?

MR MLABA: I thought about it, but I had to confirm it with him.

MR LAX: You see your previous evidence was that you didn't know why he had done that at all, not that you even had an inkling about it. Your previous evidence was that you knew nothing about why he had shot him.

Please explain that to us.

MR MLABA: Maybe it is because there were a lot of questions being asked.

MR LAX: Lungisani Nqabe, who is he to you?

MR MLABA: He is my cousin's son.

MR LAX: How well did you know him?

MR MLABA: I know him well. For instance on one occasion he was one of the people who were supposed to be trained in Umtata.

MR LAX: So he was someone you would normally have trusted?

MR MLABA: Yes, I could have trusted him, although you could never be too sure about a person.

MR LAX: You weren't on any bad terms with him?

MR MLABA: No.

MR LAX: You see, the evidence he gave at your trial is almost exactly the same as the evidence Filo gave. I say almost because there were some minor differences.

Why would he give evidence against you?

MR MLABA: When Lungisani reported, the police kept him at the police station in Camperdown.

In that way he had become one of them, and he had to work with them so that I would be convicted.

MR LAX: When were you and Filo arrested in this matter?

MR MLABA: I was arrested in March. Filo was arrested, I think around August.

MR LAX: Were you aware that Lungisani made a statement to the police immediately after this event, the very next day? It appears from the judgement of Justice Maggett and in that statement, he never saw any shots fired by Filo, he says that in there.

It was on, let me just explain further, it was on that basis that the Judge absolutely rejected the idea that there might have been a conspiracy between Nqabe and your co-accused, Mthetwa to create a version that would implicate you only.

MR MLABA: I think the deceased Nhlamvu Mkhize was killed or was shot using a G3 and Sbusiso Mlaba was shot, using a 7,65. I would not have been able to use these two guns simultaneously.

MR WILLS: Thank you Mr Committee member. Again I am quoting from this evidence report, and I don't know which statements they are referring to, whether or not it is the same statement made by Lungisani Armstrong Nqabe in the trial, or whether this is a separate statement that the Truth Commission Investigators took, but it is clear from this that this witness did not see who shot Sbusiso.

CHAIRPERSON: I think that is clear from the judgement as well.

MR LAX: Absolutely, I am not suggesting that. All I am saying is and the thrust of my point is simply this that Nqube made a statement the very next day in which he in no way implicates the co-accused.

The Judge's logic was that there was so little opportunity to create a conspiracy at that stage, and bearing in mind that the co-accused was only arrested some six months later, the chances of them to concoct a version, are very minimal. Do you get the thrust of what I am saying?

MR MLABA: Yes, I understand what you are saying.

MR LAX: There is just one other aspect that I want to ask you about that worries me a little bit and that is this, in the judgement it is clear that the Judge refers to the medical evidence of the pathologist who looked at the second deceased's body and the conclusion that the pathologist came to, was that the deceased could only have been shot execution style in the back of the head.

CHAIRPERSON: That is Mlaba, the deceased Mlaba?

MR LAX: Yes. In other words, he would have had to be in a kneeling position, with a bullet wound from the top of his head, downwards and the way you have described him being shot, simply wouldn't be possible to do that?

Can you comment on that?

MR MLABA: Sbusiso Mlaba was not on the ground, he was not shot on the ground. He was killed whilst he was on the bed.

CHAIRPERSON: When that shooting took place Mr Mlaba, of the - we will call him the second deceased, Mr Mlaba, Sbusiso, was the person who shot him, Filo, close by to him when he shot him?

MR MLABA: Filo was sitting next to me and the deceased was about the distance the table is from where I am.

CHAIRPERSON: About four or five paces?

MR LAX: If the positions of the two people were as you have indicated to me, that Mthetwa was sitting next to you on the bed and this person was on his bed, across the room, trying to get out of the window, how could he have sustained such an injury?

It is just physically impossible?

MR MLABA: Who are you referring to?

MR LAX: We are talking about Mlaba, Sbusiso Mlaba?

MR MLABA: The room that we were in, is small. Nhlamvu was sitting on the ground and Sbusiso was on the bed, and we were next to the door, sitting on the sofa.

When I finished shooting Nhlamvu and Sbusiso was trying to flee out of the window, Filo shot him at that time.

MR LAX: Well, was Sbusiso standing up, trying to get out of the window, was he standing on the bed, trying to get out of the window?

How would he get out of the window, laying down on the bed, sitting on the bed?

MR MLABA: The window is next to the bed, it was next to the bed.

MR LAX: So how did he try and get out of the window? You were there, I wasn't there, I am trying to understand, you've got to help me please.

MR MLABA: From what I saw, the window was almost open when Filo hit him.

MR LAX: Filo was sitting next to you on the bed after you shot this man, is that right?

MR MLABA: Yes, that is correct.

MR LAX: And four, five paces across the room, was the second deceased, Mlaba trying to desperately open a window so that he could get out?

MR MLABA: Yes.

MR LAX: Filo then shoots him from across the room?

MR MLABA: Yes. He shot him whilst he was on the bed, trying to get out.

MR LAX: They both were on two beds basically, Filo is sitting on one bed and this man is across the man, on another bed, correct?

MR MLABA: No, we were on a sofa, myself and Filo.

MR LAX: You were sitting on a sofa?

MR MLABA: Yes.

MR LAX: That still doesn't explain how he had got the bullet wound in the head that indicates execution style killing as opposed to the sort that you have just tried to demonstrate.

Maybe you can help us?

MR MLABA: I cannot explain anything other than what I have just told you. I had the G3 and I shot Nhlamvu and Filo had the 7,65. I think that if that person had been shot, using a rifle, maybe his head would have exploded, but because he was hit with a pistol, it did not.

MR LAX: Yes, I won't get into debating the merits or demerits of the different velocities and what their likely impact would have been.

Just one final aspect, why didn't you in the trial tell or indicate the whole political nature of this offence?

MR MLABA: It was not easy to reveal this, because in court you deny charges until the very end. I thought that if I admitted to the charge, I would have been convicted for a very long time.

Secondly, when Filo gave evidence, he actually gave evidence against me and I was the one who was actually charged with the entire offence, and it was just left to me, so I denied it.

MR LAX: Thank you Chairperson, no further questions.

CHAIRPERSON: What was Chief Mlaba's position in that community?

MR MLABA: He was a member of Parliament in kwaZulu Natal and he is the traditional leader at kwaXemba.

CHAIRPERSON: What party did he represent, was he there in his capacity as a Chief, what was his political leanings?

MR MLABA: He is an ANC member.

CHAIRPERSON: You said that Mr Skosana arranged for your training and that he is a Major in the Defence Force. At the time that he made the arrangement, what was he?

MR MLABA: He was an MK Commander at the time.

CHAIRPERSON: My reading of the judgement and it is not very explicit from the judgement, but was Lungisani not present when Mkhize got shot?

MR MLABA: No, he was not present, he had already left the room.

CHAIRPERSON: Why did he leave the room?

MR MLABA: When Lungisani was sitting next to us, I actually told him that he should leave because I actually liked him, we were training them internally and they would also have gone out to be trained at Umtata.

CHAIRPERSON: So when you shot Mkhize, you were just sitting down on the sofa?

MR MLABA: I stood up when I shot him.

CHAIRPERSON: You stood up when you shot him and then you sat down again on the sofa, why did you do that?

MR MLABA: There was no time to sit down, because at that time, I heard gunshots and that was the time when Filo was shooting Sbusiso and we had to leave thereafter.

CHAIRPERSON: When you say that when Filo shot Sbusiso, that you were on the sofa, that is not entirely correct? You were on the sofa, but you stood up to kill Mkhize and then while you were standing, Filo shot Mlaba, is that right?

MR MLABA: I stood up and cocked the G3 rifle and then I shot Nhlamvu. When I did this, and Filo realised that this person was dead, he stood up and shot Sbusiso Mlaba when he saw him trying to flee.

CHAIRPERSON: You said that you accepted what Filo said to you. Did you not realise that most people would run if shooting occurred in front of them, and somebody was shot dead in front of them. It would be almost a natural instinct to run away?

Not necessarily just to call the police, but just to run away, to get out of the line of fire?

MR MLABA: Because of the harassment we had experienced, we were not entirely sure, we did not trust whether he was going to go to the police.

CHAIRPERSON: You said that you told Lungisani to get out of the room. Why didn't you say exactly the same thing to Sbusiso?

MR MLABA: Lungisani was next to me, near the door. It was not easy to tell Sbusiso because he was a bit of a distance. If I had told him, Nhlamvu would have maybe tried to shield himself using Sbusiso and we would not have been able to get him or shoot him.

CHAIRPERSON: Did Mkhize hear you telling Lungisani to get out of the room?

MR MLABA: Yes, he did. Lungisani was next to me and Mkhize was a bit of a distance away, but he couldn't have jumped and got out of the house.

CHAIRPERSON: Because it is clear that Mkhize must have known from very shortly after you entering the room, that he was about to die, because that was the first thing you told him? Is that correct?

MR MLABA: Yes, I told him that this was the day, he would not be able to escape.

MR LAX: Just one last thing, in your evidence in court, you admitted being present at the scene, you said that you had arrived there, that you were drinking beer and so on, is that right?

MR MLABA: Yes.

MR LAX: Those were all lies, were they?

MR MLABA: Yes, it was trying to evade the charges.

MR LAX: So, your only reason you can give us why Lungisani should have given evidence against you, was that he was in this sort of plot with Filo or he was bought by the police or something to that effect?

MR MLABA: That is how I say it.

MR LAX: Thanks Mr Chairman.

CHAIRPERSON: Mr Wills, do you have any questions arising out of questions that have been put by members of the panel?

MR WILLS: Mr Chairman, I have got one slight problem, and excuse me if I didn't see what the Commissioner, Mr Lax, indicated to this witness, but I can't see the part of the judgement which refers to the execution style killing of the second deceased in the matter.

CHAIRPERSON: Mr Lax? I think it is where they talk about a coup de grâce.

MR LAX: It is on page T12 of the judgement, between lines 10 and 20. You will notice there at line 20 that he says Lungisani's version of how the deceased in count 1 was shot with the pistol, is ...

CHAIRPERSON: Page what?

MR LAX: T12 of the judgement, page 5, I beg your pardon, the judgement is T12. In other words, that is probably transcript 12 of the set of transcripts. Page 5 of the judgement, I beg your pardon, line 10 - 20.

MR WILLS: If I can just comment on this, the deceased in count 1 is in fact the person who ...

MR LAX: That is Mkhize.

MR WILLS: Sorry, if I've misunderstood, the deceased in count 1, is the deceased in respect of whom the applicant admits to having shot?

MR LAX: Yes, the thrust of my reference to that is to say that Lungisani was present, he hadn't left. That is why I was referring to that aspect, but if you look at - I beg your pardon - maybe we are getting ourselves all confused here, you are probably correct.

There is no other evidence as to how the second accused died.

CHAIRPERSON: Except from Filo.

MR LAX: yes.

CHAIRPERSON: Because Filo in the judgement said that accused 1, I think that was the applicant, said that he must kneel down.

MR LAX: Yes, indeed.

CHAIRPERSON: And while he was kneeling down, he shot him. He, Filo told him not to run away, I think but that was Filo's evidence, which is disputed by the applicant, but which the Court accepted, because the Court made a specific finding that there was no common purpose and so the Court accepted Filo's evidence in that regard.

I think if you want to find out Filo's reference, just find it. Where did Filo say that he must kneel down?

MR LAX: Just while you are looking for that, one other issue is that - and maybe your client could just answer this, it is clear from this judgement that the first deceased was shot with a pistol. That is clear from the post mortem.

In other words he was shot with a G3 in his upper body, several shots, but the coup de grâce was with a pistol. Now, your client and the applicant agrees that he shot that person and his evidence was, well, I couldn't have shot him with a pistol, I didn't have a pistol.

Maybe he could just explain that?

MR MLABA: As I have explained before, I had a G3 rifle, I did not have a pistol. Filo Mandla Mthetwa is the one who had a pistol.

MR LAX: Are you saying that Filo shot Mkhize in the head with the pistol after you had shot him with the G3?

MR MLABA: I don't remember seeing Mkhize being shot at with a pistol. I shot him, using the G3. After Filo had killed Sbusiso Mlaba, we left.

He did not kneel down or bend down to kill or to shoot Nhlamvu.

CHAIRPERSON: Sorry Mr Wills, it is actually on item 5 of the summary of the statement of facts, where it says that the deceased in count 2 attempted to flee from the room, but accused 1 grabbed hold of him. Accused 1 instructed the deceased in count 2, to kneel in front of him, and accused 2 cautioned him not to run away.

Either accused 1 or 2 then shot the deceased. There is no real evidence of execution style killing, there is an indication that it might have been, but one certainly can't arrive at the conclusion that he was killed execution style, you know laying down with the gun against the back of the head type of thing.

MR WILLS: Yes, thank you Mr Chairman, that is my understanding of the judgement, thank you.

MR LAX: Thank you for pointing that out. Clearly we have misdirected.

CHAIRPERSON: I have had an urgent application, although it is not (indistinct) for a two minute adjournment.

If we could just have a two minute adjournment.

COMMITTEE ADJOURNS

MZAMO THABANI MLABA: (sworn states)

CHAIRPERSON: Mr Wills, do you have any questions arising from questions that have been put by members of the panel?

FURTHER EXAMINATION BY MR WILLS: Thank you Mr Chairperson. Just one area of re-examination.

Mr Mlaba, you have indicated to the Committee that you killed this person by use of a G3 rifle, is that in fact correct?

MR MLABA: That is correct.

MR WILLS: Can you tell us exactly how you shot the deceased, and the deceased that I am referring to in this matter is the deceased Mkhize?

MR MLABA: I shot him on the thigh as well as on the chest.

CHAIRPERSON: Was that in automatic mode, how many shots were fired?

MR MLABA: It was a single shot?

CHAIRPERSON: Two single shots? It wasn't (indistinct)

MR MLABA: Yes, two single shots.

MR WILLS: Are you in a position to say whether or not you heard your co-accused or the State witness, the person who later turned State witness, that is Filo Mandla Mthetwa, did he fire any shots at that stage, can you remember?

MR MLABA: Yes, I did hear.

MR WILLS: Do you know where his shots were directed?

MR MLABA: He was on my left and he was shooting, pointing his firearm towards Mlaba.

CHAIRPERSON: Sorry Mr Wills to interrupt, but it has just entered my mind, Filo, where is he now?

MR MLABA: From what I hear, I hear that he is now deceased.

CHAIRPERSON: Thank you. Sorry Mr Wills, you can continue.

MR WILLS: Is it possible that Filo could have shot some shots in the direction of the deceased in count 1, that is Mkhize?

MR MLABA: I don't remember.

MR WILLS: Thank you, no further questions.

NO FURTHER QUESTIONS BY MR WILLS

MR LAX: Just one thing arising. How many shots did Filo shoot?

MR MLABA: I heard the gun going off once.

MR LAX: Thank you Chairperson.

CHAIRPERSON: Thank you. Ms Thabete do you have any questions arising?

MS THABETE: I don't Mr Chairman, but if Mr Chairman would allow me to ask one aspect that I did not ask earlier on?

CHAIRPERSON: Yes, and then I will give Mr Wills an opportunity to re-examine after that.

FURTHER CROSS-EXAMINATION BY MS THABETE: Thank you Mr Chairman. Mr Mlaba, you say before the deceased were killed, you went and you spoke to Mr Linda Xaba, is that correct?

MR MLABA: Yes, that is correct.

MS THABETE: And I don't know whether I heard you correctly, but you say he said that you should deal with the deceased accordingly. Did you say something like that?

MR MLABA: As an MK Commander, when I reported to Mr Xaba, he said such a person is killed or is terminated.

MS THABETE: So would it be correct for me to say Linda Xaba instructed you to go ahead and murder the deceased?

MR MLABA: No, that is not so.

MS THABETE: What do you mean then when you say he said that you have to deal with, you have to kill people who were spies? What do you mean?

MR MLABA: That is what he said from the knowledge that he had. He did not specifically say that I should go and kill Mr Mkhize, but what he said is that such a person, who behaves in that manner, is normally killed.

MS THABETE: So would it be correct for me to say that you decided on your own to kill the deceased? No one instructed you?

MR MLABA: It was my decision that if a person has indeed been that troublesome, he should be killed.

MS THABETE: I don't know whether you are answering my question, are you saying that yes, you did take the decision to kill the deceased without any instructions given to you?

MR MLABA: I took the decision with Filo.

MS THABETE: In your application, it is page 483 of the bundle, number 11(a), you say the matter was reported to my Commander Linda Godffrey Xaba but because he was unable to investigate the issue, I took the decision to kill Mkhize.

You did not say you and Filo Mandla took the decision to kill Mr Mkhize. What do you have to say about that?

MR MLABA: I said so because I was with him when we took the decision, or when I took the decision to kill Nhlamvu Mkhize.

MS THABETE: When you are talking about taking a decision, you mean at that place of incident, you took a decision to kill Mkhize, not before?

MR MLABA: I am referring to the decision to kill Mkhize.

MS THABETE: No my question is, are you talking about a decision you took before you actually went to Lungisani's place, because if I should refresh your memory you said when you went to Lungisani's place, you had already decided that you were going to kill Nhlamvu Mkhize. You did not decide at Lungisani's place, do you remember?

MR MLABA: Yes.

MS THABETE: What I am asking you is, that decision that you took before you went to Lungisani's place, would it be correct for me to say no one instructed you, you decided to take that decision by yourself?

MR MLABA: A trained person has to command himself or herself if the situation calls for it.

CHAIRPERSON: Sorry Mr Mlaba, just on that. You say you were a member of the kwaXemba Self Defence Unit, is that correct?

MR MLABA: That is correct.

CHAIRPERSON: Who was the Commander of that Unit if there was one at all?

MR MLABA: I was the Commander.

MR LAX: Just before you continue, if you will allow me. Why didn't you speak to Nkosi Mlaba about this, and say to him, we've got this troublesome man here, he is a spy, can we go ahead?

MR MLABA: It was not easy to report such a matter to Chief Mlaba. He is a traditional leader and we were bodyguards. I actually was responsible for deciding which action to take if there was a troublesome person.

The police, we were not the eventual targets, because after dealing with us, the police would have gone further and went after Chief Mlaba.

MR LAX: You see, in the trial, there is some evidence that you and Nkosi Mlaba arrived at Nqabe's place and you tried to impress upon Nqabe that he should keep quiet, that he shouldn't report you and reveal you to the police. That was never contested in the trial, that evidence?

You did involve him in the matter?

MR MLABA: As I am explaining, the person who was really being sought after was Chief Mlaba. This was the design of the police who wanted Chief Mlaba dead, because he has organised the people under the ANC.

MR LAX: Just as an aside, is it correct that his father was assassinated, isn't it? The Chief's father? Or his older brother, is that right?

MR MLABA: It is my older brother.

MS THABETE: Can I continue? Actually that was my next question to you and I would like you to repeat the answer. Why did you not inform Chief Mlaba?

MR MLABA: As I explained, it would not have been easy because he is a leader. We were responsible for protecting him, and we should have done our job of protecting him before the enemy got to him.

MS THABETE: I refer the Committee members to page 9 of the judgement, it is line 25.

When you were asked why you did not tell Chief Mlaba you said, or the judgement reads his statement, the he refers to you, his statement that he thought he might be regarded as an informer if he had done so, is simply not acceptable.

Is it correct that you had told the Court that you did not want to tell Chief Mlaba what had happened, because you thought you might be regarded as an informer?

MR MLABA: That was the response that I should have given in court, because everything else was in disarray, I had no other option, but to give such an answer.

MS THABETE: Are you saying that you lied in court?

MR MLABA: Yes, that is what it means.

CHAIRPERSON: Any more questions?

MS THABETE: Just one more. I also refer the Committee members to page 8 of the judgement, line 23, which reads the accused originally said he had never told anybody about the incident even though two members of his family had been shot down in cold blood by his fellow bodyguard.

I also refer the Committee members to page 7, line 12 which reads a second improbability in the accused's version is that both deceased were relatives of his. One indeed was his brother-in-law.

He saw these two relatives shot down in cold blood in his presence, and did not demonstrate or intervene in any way in order to save them.

CHAIRPERSON: Were both the deceased relatives of yours? We know that Sbusiso Mlaba was. What about Mkhize?

MR MLABA: As I explained before, I discovered later that Sbusiso Mlaba was indeed a member of the family.

With regards to Nhlamvu, he is a brother-in-law in the sense that his brother is married to a Mlaba woman. That is how I take him to be a brother-in-law.

MS THABETE: I read these two text because I am open to correction, I thought you had said earlier on you did not know that Sbusiso Mlaba was your relative.

CHAIRPERSON: He said that he was a relative, but he did not know that he was as close as being his father's brother's son.

MS THABETE: I am indebted, thank you. No further questions.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Wills?

FURTHER EXAMINATION BY MR WILLS: Thank you. Mr Mlaba, is it not so that within the ANC operations, there is a distinction between a political leadership and the operations that are performed by MK operatives?

MR MLABA: Please repeat the question.

MR WILLS: Is it not so that there is a distinction within the ANC about people who work on the political side of the organisation, and people who work on the MK side, in the sense that those who work on the MK side, keep their operations to themselves and do not necessarily inform the political leadership about it?

MR MLABA: That is correct. The political leaders are not necessarily concerned, they are not in contact or they do not know anything about what goes on in the MK operators.

MR WILLS: Thank you. No further questions.

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Thank you Mr Mlaba, that concludes your testimony.

WITNESS EXCUSED

MR WILLS: Mr Chairperson, I have no further witnesses, but I would like by consent if the Committee has not seen this report, to hand this pro active report in by the TRC, dated the 13th of November 1998, up as an Exhibit. I don't know if the members have a copy, but I certainly don't. I mean, I didn't beforehand.

CHAIRPERSON: We will receive that as Exhibit A.

MR WILLS: Thank you and that would conclude my case for this applicant.

CHAIRPERSON: Thank you Mr Wills. Ms Thabete?

MS THABETE: No further questions Mr Chairman.

CHAIRPERSON: No further evidence?

MS THABETE: No further evidence. Mr Chairman, if I can adjourn for two minutes, because we had agreed with the victims that I will consult them.

CHAIRPERSON: Yes, and then Mr Wills, are you in a position to argue the matter?

MR WILLS: I am in a position to argue the matter.

CHAIRPERSON: We will now take a short adjournment to enable the Evidence Leader just to have a brief consultation with the victims' family and also for Mr Wills and Ms Thabete to get their minds in gear for the submissions which we will receive after the short adjournment.

COMMITTEE ADJOURNS

CHAIRPERSON: We are just waiting for the Interpreter. Ms Thabete, did anything arise from your consultation?

MS THABETE: There is no more evidence Mr Chairman, but I will summarise what I have been told, in argument.

CHAIRPERSON: Thank you. Mr Wills?

WITNESS EXCUSED

MR WILLS IN ARGUMENT: Thank you Chairperson and members of the Committee.

Mr Chairperson, it is my submission that the applicant has satisfied the requirements of the Act in so far as he has with respect, indicated and shown that the murders that he committed, were indeed committed with a political motivation and secondly it is my submission that he has fully disclosed the circumstances surrounding such murders.

Mr Chairperson, I would like to indicate at this stage that the report that was provided by the TRC Investigators, actually substantiates this.

CHAIRPERSON: I think if one takes a look at the evidence presented before us, as well as the documentation including that report, the only finding that could be made with regard to Mr Mkhize, was that he was probably a police informer or that there was certainly justification for the applicant and his colleague to believe that, genuinely believe, bona fide believe that he was a police informer, and that they proceeded to that house at that time, to kill him.

What is the position with Mr Mlaba, the deceased, Sbusiso Mlaba, because it is not clear from, I don't think the finding can be made from the evidence that when they proceeded to that house, at that time, before they walked in that door, they had any intention of killing any other person, other than Mr Mkhize?

MR WILLS: Yes, indeed, I agree with the Committee in that regard.

CHAIRPERSON: So therefore the killing of Mr Mlaba from the applicant's point of view, was unforeseen and he wasn't aware that it was going to happen until it actually did happen.

That cuts out a common purpose with respect to that killing. And then how reasonable was the belief that Mr Mlaba was going to tell the police? Was there any justification at all in killing him, which raises the question, what happens if there were four or five people in the room at that time, would they have shot all four or five?

Then one gets into the question of proportionality with regard to that there. If you could perhaps address us on those points.

MR WILLS: Yes, thank you. Mr Chairperson, yes indeed I agree and concede that in respect of the death of the second accused, there was no preplanning in regard to that incident, however, in the nature of the violence and the nature of this attack, certain things happened immediately, without any chance for matters to be discussed and planned beforehand.

My respectful understanding of the law is that a common purpose can be derived immediately from the circumstances which occurred immediately.

CHAIRPERSON: Like going on a robbery and you have an agreement not to kill and you all go with guns, and somebody gets killed. You can't say well, we didn't have a common purpose with regard to the murder?

MR WILLS: Yes indeed, and I submit that the applicant's evidence in that he took full responsibility for the fact that the second deceased died, is indicative of the fact that it was part of an operation which whilst the effect of that operation was, or whilst the plan was directed at the first deceased, the second deceased in effect got killed in the cross-fire.

CHAIRPERSON: Yes, no, but this is the point which I would like you to address us on. It actually wasn't cross-fire. If I've got a target and I am going to kill somebody and he happens to be standing amongst a crowd of people at a bus stop and I am driving passed and I shoot, and in the process I don't only kill my target, but I kill somebody next to him, that person might be said to be in the cross-fire.

Here the killing of Mr Mlaba, the deceased, was a dolus directus a direct intention to point a gun at that particular person, and to kill him for a particular reason. It wasn't just a cross-fire and that was to prevent him from getting out of the window, because he may go and tell the police.

Then this raises the question if that is so, why then would they walk into a room where there is three people, one the target, and they say look, this is your last day, we have come here to kill you, right in front of the other two people?

Okay, we know that he respects and knows one of them, and that person may have gone for training, but something prevented him from going, so he trusts him completely and the other person is in his house, would it not be reasonable to infer that they shot them in front of these people because they knew that they wouldn't be told on because they trusted them?

Otherwise, why not take him out to the mealie field and kill him there, and throw him in the river?

MR WILLS: I think it can be inferred reasonably from the evidence Mr Chairperson, that one can distinguish between the two persons that were in the room.

Clearly from the questioning of my colleague, there was a closer relationship between the accused, the applicant and the person who was released from the room, and the second deceased. Clearly I think, the Committee member Mr Lax, established in the evidence that the relationship between the applicant, sorry the relationship between the applicant and the person who was released, was such that the applicant trusted that person.

But the same couldn't be said of the second person who judging from the questions of my colleague, Ms Thabete, was that he really hardly knew the person. He didn't even know the extent of the relationship.

I think one can make that distinction. I also submit that whilst the actions of the second attacker, the now deceased person who was a State witness, was such that it was part of the operation which can be related to the political motivation of the killing of the prime target.

It was an incidental to that operation. I submit that in those circumstances, it can be said that he died as a result of a politically motivated act.

The sine qua non would be that had the deceased, the target, not been present, clearly the second deceased would not have died.

CHAIRPERSON: And then on proportionality, if you want to take out an informer, and you go in knowing that there is somebody there, at least one of the two of you going, will have to die for no other reason than just being there, because it is a witness.

With regard to the question of proportionality, are you justified in killing that innocent witness to your killing of your target?

MR LAX: Especially perhaps, if I could just add this, that on your client's own evidence, he didn't know this other guy at all, so the chances of ID afterwards and all that stuff, were pretty limited.

MR WILLS: Proportionality at war, is always a very difficult thing to justify. We are aware that one cannot sit in an armchair analysis of events in a situation like that.

Clearly the applicant did not kill that second person. His actions were directed at the target. However, he has taken political responsibility for the death of that second deceased in the sense that he was a Commander of an operation and the person who accompanied him on that operation, was one of his fellow SDU members.

I think it is my submission that as a result of the fact that that person was killed in an operation such as this, it is enough to indicate that the matter was politically motivated, particularly in view of what I said earlier, that had the target not been identified clearly, that second accused, the second deceased would not have been killed.

It is also my submission that one cannot rely too heavily on the judgement in this matter, with respect.

In addition to the trite legal position that a judgement of one Court cannot be accepted by another forum, there is the evidence in the judgement where the Judge actually refers to the inexperience of the legal representative that was representing the accused at the time, which was obviously a pro deo appointment, and I submit in those circumstances, it makes the judgement even more - it makes it even more dangerous in those circumstances to rely on findings of the judgement with respect.

MR LAX: Mr Wills, perhaps you could just assist me with one line of thinking and that is your client was convicted of directly shooting the second deceased.

It is against that conviction that he is applying for amnesty. However the evidence indicates that he did not shoot that person at all, how can we grant him amnesty for something he says he didn't do?

MR WILLS: Yes clearly his evidence is that he did not kill the second accused, and I submit the second deceased, I submit that he must be believed in that regard, because it wouldn't serve him any purpose whatsoever to deny shooting the person, if indeed he did so.

In fact, in this instance, it would be to his advantage. I submit that that very fact that he continues with his version, as has been his version throughout, that it wasn't him who shot the second deceased, supports his application particularly in so far as full disclosure is concerned, because he is prepared to continue with that version, even though it is to his disadvantage.

But getting to the question of how one can grant him amnesty for something that he didn't do, it is my submission that the applicant has indicated that he is responsible for that death in so far as he was on an operation with a colleague of his who was a fellow SDU member.

He is taking the full consequences of the events that, or full responsibility for the events that occurred that evening. I return to my earlier submission that in these circumstances, it is not ...

CHAIRPERSON: It is hardly a noble thing at this stage, to take the full consequences of it, because at the trial he denied any implication at all, but now to say well, I am responsible for both deaths, after he has been sentenced in respect of both deaths, it is quite easy to take those - the blame for it.

MR WILLS: Yes indeed. My position goes back to possibly the inexperience of the Counsel that he received, but in addition to that, the forums are entirely different.

The fact that the accused has openly admitted to the Committee that he gave false evidence in that trial, I submit again ...

CHAIRPERSON: Well, he had to do that, because we've got it here, what he said was a denial. I mean he can't come and say I didn't, I mean he had to deny that.

MR LAX: Sorry Mr Wills, can I, I don't want to cut you off unfairly, but do I understand your submission correctly, you are saying that your client was Commander of the operation, he killed the first deceased, to the extent that the second deceased died as you would have it, as a logical corollary of the killing of the first deceased, that it was therefore proportional and proximate, his death and furthermore that as Commander in a sense, the intention of his underling, who killed the second deceased, should be imputed to him and therefore we should grant amnesty? Have I summarised it sort of adequately?

MR WILLS: Yes, that is basically my position, and as regards the proportionality, all I can do is refer the Committee to decisions taken by other Committee members, in circumstances which with respect are far worse than the circumstances and to that extent I have a couple of reported judgements of amnesty application 4019/96 and 4058/96.

This is the incident where, it was quite a well recorded incident where there was an attack on certain IFP members in the Table Mountain area and these two applicants were IFP members, who decided against orders of their superiors to take action in response to this attack and they attacked a minibus and the evidence was to the effect that they shot at the driver of the minibus, the minibus then went off the road.

They had expected the persons in the minibus to be members of ANC. When they approached the minibus, they saw and it was admitted in evidence, they saw that the people inside the minibus were women and children and they then proceeded to shoot those persons, without knowing, after having seen the person, that these were in fact ANC members.

My understanding of that judgement is that the, and I have a copy which I can hand up, was that the offences were committed in the course of the struggles, and I am quoting from the judgement, were committed in the course of the struggles of the past and were associated with a political objective.

To my mind, that makes the actual ambit of both proportionality and political objectives, extremely wide, and I submit in comparison with this case, it certainly is a lot wider than one would need to stretch those definitions in regard to this case.

The persons, the applicants in that incident were Mbangu Absolom Dladla and Nkaniso Wilfred Ndlovo and the matter was heard in Durban on the 23rd of March.

CHAIRPERSON: Sorry, the numbers 4051 and 4058?

MR LAX: 4019.

MR WILLS: 4091/96 and 4058/96.

CHAIRPERSON: As long as we've got those numbers we can track them down.

MR LAX: Just on that point, are we bound by that decision? What is your argument on that?

MR WILLS: I would submit that whilst ...

CHAIRPERSON: Sorry, just on that, we don't need, all these decisions are basically based on fact.

It will vary depending on the facts, it is like in criminal law, we are bound by the law, but not by the facts of the case. You can always distinguish, I think it goes to that.

If you've got one with exactly the same facts, then perhaps we are, but ...

MR WILLS: No, I am not suggesting that the facts are exactly the same, but what I am saying is that the rational of that judgement was that this occurred in the context of a political struggle and it was on that basis, if my interpretation of the judgement is correct, that the applicants were granted amnesty.

On that same basis, it is clear that this person was an SDU member. It is clear, or it is probable that the first deceased was an informer, an operative of the former State, and it was clear that he was killed as a result of an attack in a political struggle and that there was one additional person killed, and I submit in those circumstances he is deserving of amnesty for both incidents.

Also, I just want to make the point that there is a difficulty in accepting the judgement without having the evidence before us in respect of that judgement, and I make that comment very briefly, particularly in regard to the post mortem examination.

CHAIRPERSON: And also, in this particular judgement there is very little summation of the facts. Often in judgements, we get a long, the facts set out by the Judge in quite a lot of detail, but here it doesn't very much at all. We can't really look to the judgement for facts as to what may or may not have happened inside the room.

MR WILLS: Yes, that is indeed so and the point that I want to make is in relation to one of the questions by the learned Committee member, Mr Lax, and that was that the judgement inferred or indicated that the deceased's death, the first deceased's death was brought about by a 9 mm bullet, whereas the applicant is saying that he used a G3 and not a 9 mm on the night in question.

My only comment would be that it would serve him no purpose whatsoever to come here and maintain that he used a G3, when in fact he did use a 9 mm, the opposite would be the case.

MR LAX: Mr Wills, in relation to the first death, we have very little difficulty dealing with that matter, it is the second death as you will have gathered, that we really have the difficulties with and that is why we have asked you to address us on those issues.

Yes, we will take the judgement obviously with the necessary probative value.

MR WILLS: Unless there is anything further, I can't take the matter any further.

CHAIRPERSON: Thank you Mr Wills. Ms Thabete, do you have any submissions to make?

MS THABETE IN ARGUMENT: Briefly Mr Chairman. Without repeating what my learned colleague has said, regarding the killing of Nhlamvu Mkhize, I also wouldn't have any objections if amnesty is granted in that incident.

I also would like to put it on record that after consultation with the victim's next of kin in this incident, they also forgive, they told me to pass it through or pass it on to the applicant, that they understand and forgive him for what he did, and also they have no objection towards amnesty being granted.

Regarding the killing of Mr Sbusiso Mlaba, I submit that I question the political motive in this incident because first of all there was no plan and also there was no intention to kill the deceased and also we don't see how political the offence was, or the act was, and also it is not clearly explained what the political objective was for killing Mr Mlaba, Sbusiso Mlaba.

Coming to the issue of proportionality, I also would like to say the act committed by the applicant, was not proportional to the objective which was to be achieved.

More specifically, taking into consideration the fact that the deceased, Mr Sbusiso Mlaba, was 17 years old at that time. In my view other steps could have been taken. There were options that could have been taken.

For one, the 30 year old applicant and his co-perpetrator, Mr Fila Mandla Mthetwa who was 22 years old, they could have come into the room, told the deceased Mr Mlaba, to get out of the room as he was so young, and inexperienced as well.

Further, I don't see how it is proportional because this was, the area of kwaXemba was an ANC dominated area. If the applicant and his co-perpetrator could have spoken to the deceased and explained to him why they were killing Mr Mkhize, I don't see why he could not have understood, more especially because he was also an ANC supporter.

I feel that the action of deciding to kill him, was very much disproportional.

Regarding the disclosure, I won't comment on that except to say that I don't see why the Committee members should not rely on the judgement. After all, there were investigations made, there were witnesses that were called and if the accused himself, gave evidence or testified. I don't see really why we cannot rely on the judgement, or on the facts of the judgement.

I also think it gives good guidance to the Committee members as to what actually took place. That is all I have to say Mr Chairman.

CHAIRPERSON: Thank you Ms Thabete. Mr Wills, do you have any reply?

MR WILLS IN FURTHER ARGUMENT: Just, not really a reply, but just in emphasising the point on the Committee's question as regards the second accused.

CHAIRPERSON: Second deceased?

MR WILLS: The Section 23 of the Act, the Promotion of National Unity and Reconciliation Act, subsection (d), that is 23(d) reads that the object or objective of the act, omission or offence, and in particular whether the act, omission or offence was, and I emphasise primarily directed at a political opponent.

I submit that that intention, the intention of the legislature there is clear. It doesn't insist that the action has to be directed...

CHAIRPERSON: Exclusively directed yes.

MR WILLS: Yes, indeed, thank you Mr Chairperson.

CHAIRPERSON: Thank you, we will reserve our decision and we will hand down a written decision hopefully in the very near future.

Thank you Mr Mlaba, that concludes your hearing, a decision will be handed down some time in the near future.

Do you want a short adjournment now, while we reconvene in respect of the next application?

MR WILLS: Thank you Mr Chairperson, if the next applicant has arrived?

CHAIRPERSON: Perhaps we will take an adjournment now and if you can just let us know what the situation is regarding the application of Mr Xaba.

COMMITTEE ADJOURNS

CHAIRPERSON: We took an adjournment after the last hearing for - to await the arrival of the applicant in the next matter, that is namely the application of Mr Xaba.

I have now been informed by Mr Wills, who appears for the applicant as well as Mr Shaw, who is representing victims or relatives of the victim and friends of the victim in this matter, that Mr Xaba has not yet arrived.

The situation relating to Mr Xaba is that he was as you probably know, sentenced to serve a term of imprisonment arising out of the incident which is the subject of the application and that he was detained in the Pietermaritzburg prison.

The notices, etc, the required notices for the hearing were sent to the Pietermaritzburg prison, but unbeknown to anybody, except the prison authorities and the prisoner himself, he was transferred, I am not sure when, but fairly recently, subsequent to Mr Wills having consulted with him, to the prison in Utrecht, which I am told is a substantial distance from here, about three, three and a half hours' drive.

Arrangements were made this morning to have him brought here, to follow on the last hearing we did, and the expectation was that he would be here by about three because we were informed that he left, what time, about eleven o'clock?

MS THABETE: Half past ten Mr Chairman.

CHAIRPERSON: Half past ten this morning, which makes nonsense out of the three or three and a half hours that we thought it would be. I don't know precisely, I have never been to Utrecht, but the fact is, he is not here.

Tomorrow we have four matters set down for hearing and if we did start with Mr Xaba's application now, we would probably pick up a part-heard which is in itself, not very desirable. It is not an impossible situation to have a part-heard, it often happens, but if it can be avoided, it is desirable to avoid picking up a part-heard and after consultation with Mr Wills, Mr Shaw and Ms Thabete, the Evidence Leader, it has been decided regretfully to have to postpone this matter to some date to be arranged amongst the legal representatives, for the hearing to be held some time in the future, which will not be this year because our roll has been finalised for the rest of the year. It won't be able to be heard then, so it will be some time next year.

I have said that it should be given priority in the setting down, and in the circumstances I apologise profusely to all persons who have been inconvenienced by this postponement. It is as I say regrettable, but we are faced with the situation that is beyond our control really, and we just cannot start, it is already ten past four.

It is not a matter that just from reading the papers, that one can or should deal with in a hurried manner at all. Unfortunately then, the matter will be postponed sine die to a date to be arranged.

The notification process will have to be gone through again, there will be fresh notices served, etc. That is the situation with the application of Mr Xaba and once again I apologise for the inconvenience caused, but the matter is then adjourned to a date to be arranged.

Thank you. Is that the role for today then?

MS THABETE: Yes, Mr Chairman, it is.

CHAIRPERSON: What time do we start tomorrow morning?

MS THABETE: Nine o'clock Mr Chairman.

MR WILLS: I am happy with that time Mr Chairman.

CHAIRPERSON: We will then stand adjourned until nine o'clock tomorrow morning.

COMMITTEE ADJOURNS