CHAIRPERSON: Mr Molohlanye?
MR MOLOHLANYE: Thank you Madame Chair. I'm representing Themba Mshini Ngcobo who is applying for amnesty for the killing of Mpumelelo Phewa, Amos Cele and Simpson Mavundla as well as the attempted killing of Mfani Cele on the 20th July 1991. I'll start by ...(intervention)
CHAIRPERSON: He is not applying for robbery?
MR MOLOHLANYE: I was coming to that. I'd like to apply for amendment of the application to include robbery because it was part of the act.
ADV DE JAGER: Did he give any details of the robbery?
MR MOLOHLANYE: Yes he did.
CHAIRPERSON: Yes.
ADV DE JAGER: In his application?
MR MOLOHLANYE: No, in his application he did not.
CHAIRPERSON: Yes, do you agree with us that he was not convicted of the robbery?
MR MOLOHLANYE: Yes I do agree.
CHAIRPERSON: And he is doing so for the purposes of full disclosure.
CHAIRPERSON: Yes, you may proceed.
MR MOLOHLANYE: Thank you Madame Chair. I have an affidavit of Mr Themba Ngcobo which I would like the Committee to take into notice.
CHAIRPERSON: The affidavit will be accepted as Exhibit B. Mr Ngobo, we have Exhibit B in front of us. Do you know the contents of Exhibit B?
THEMBA MSHINI NGCOBO: (sworn states)
CHAIRPERSON: This will be accepted Mr Molohlanye as
Exhibit B: . Do you wish to lead him further?
MR MOLOHLANYE: Yes.
CHAIRPERSON: Notwithstanding the fact that we are accepting this affidavit as evidence?
MR MOLOHLANYE: Only on particular issues that I wish to clarify.
CHAIRPERSON: You may do so.
EXAMINATION BY MR MOLOHLANYE: Thank you.
Mr Ngcobo, you said you were a member of ANC. What position did you hold?
MR NGCOBO: I was a commander.
MR MOLOHLANYE: May you tell us who elected you in this position?
MR NGCOBO: I was elected by the community of Malukazi.
MR MOLOHLANYE: Your role as a commander, what was your role as a commander?
CHAIRPERSON: Before he comes to that, when was he elected as a commander?
MR NGCOBO: In 1991, February.
CHAIRPERSON: You may proceed then, Mr Molohlanye.
MR MOLOHLANYE: Thank you Madame Chair.
My question was, what was your role as a commander?
MR NGCOBO: It was to organise my area, the people in my area so that we could defend ourselves against the IFP.
MR MOLOHLANYE: So, proceed further? We hear here in terms of the affidavit, paragraph 5, that you went to a particular place like the IFP area and you followed Mavundla into a house. Who was inside the house?
MR NGCOBO: I was Mavundla and his wife.
MR MOLOHLANYE: You, according to the affidavit, you shot Mr Mavundla. Do you know anything about the robbery?
MR NGCOBO: Yes.
MR MOLOHLANYE: Please inform the Committee what you know about the robbery?
MR NGCOBO: After Mavundla had died we robbed him of a wristwatch and a wallet.
MR MOLOHLANYE: Who took the wallet and the wristwatch?
MR NGCOBO: It was myself.
MR MOLOHLANYE: Proceed further. You left Mavundla there and you went to another area ...(intervention)
MR MALAN: Sorry, let's deal with it now, why did you take the wallet and watch and what did you do with it?
MR NGCOBO: We had a problem with ammunition. We were going to sell the watch and use the money to buy ammunition.
MR MALAN: And the wallet?
MR NGCOBO: I threw it away.
CHAIRPERSON: The money?
MR NGCOBO: I pocketed the money.
CHAIRPERSON: What did you use the money for? Your evidence is that you robbed because you wanted to - you were short of ammunition and wanted to use the proceeds thereof for purposes of buying ammunition. Did you use the money to buy ammunition?
MR NGCOBO: Yes.
CHAIRPERSON: Whilst we are dealing with Mr Mavundla before Mr Molohlanye proceeds to other aspect of your evidence, did you know Mr Mavundla?
MR NGCOBO: I did not know Mr Mavundla.
CHAIRPERSON: How did you know that Mr Mavundla was an IFP person?
MR NGCOBO: I saw him coming from the IFP camp.
CHAIRPERSON: By an IFP camp you mean a house that was known to be used by IFP people?
MR NGCOBO: It was a house that they used, the IFP members.
CHAIRPERSON: How did you know that that house was an IFP camp?
MR NGCOBO: As a commander I used to patrol the area to look for their camps and bases where they would launch attacks from.
CHAIRPERSON: So you knew the house to be used by IFP supporters or members?
MR NGCOBO: Yes.
CHAIRPERSON: Thank you, you may proceed Mr Molohlanye.
MR MALAN: Sorry, I'm not clear on this now. In your patrols, did you also patrol the IFP area?
MR NGCOBO: I would stand from our area and from where I stood it was possible to see that IFP area.
MR MALAN: But you didn't patrol it, you could see the IFP area, could you see the house from which you took Mr Mavundla?
MR NGCOBO: I could see the house from where I stood in our area. It was clear, it was not very far, you could see the house across.
MR MALAN: Now how did you know that that house was used by the IFP? I think as you said to launch attacks?
MR NGCOBO: I used to see them coming from that area when they came to attack us, from that house.
ADV DE JAGER: Wasn't he staying there, wasn't it his own house where he and his wife stayed?
MR NGCOBO: I did not know that that was his house or not.
ADV DE JAGER: There was a bed in that house, he was sitting on the bed when you entered?
MR NGCOBO: He was seated on the bed.
ADV DE JAGER: Who else did you ever see at that house except him and his wife?
MR NGCOBO: No, I did not see anyone else.
MR MALAN: But you haven't seen Mavundla either, before? You did not know him?
MR NGCOBO: No, even if I used to see him but I did not know him.
MR MALAN: You heard when I read out from the judgement to your fellow applicant, Mr Ncishane, that according to the summary of facts there or the summary of facts in the judgement, Mavundla was taken from another home, not from his own home but from a friend's home. Do you have any comment on that?
MR NGCOBO: He was removed from a house. I removed him from that house. I was not aware whether that was his house or not.
MR MALAN: Exactly. Okay, thank you.
CHAIRPERSON: You as a commander conducted certain surveillance one would imagine, is it not so?
MR NGCOBO: Yes.
CHAIRPERSON: That would be one of the primary functions of a commander in a war torn area like Malukazi, is it not so?
MR NGCOBO: Please repeat?
CHAIRPERSON: The conducting of surveillance would have been one of your primary functions in a war torn area like Malukazi was during that time?
MR NGCOBO: Yes it was important.
CHAIRPERSON: And you had conducted this surveillance and it had during your surveillance you then concluded that that particular house was used by the IFP because you saw quite a number of people coming from that particular house?
MR NGCOBO: Yes.
CHAIRPERSON: Was that an IFP area?
MR NGCOBO: Yes.
CHAIRPERSON: Yes Mr Molohlanye.
MR MOLOHLANYE: Thank you Madame Chair.
In terms of the affidavit we have, paragraph 5, the applicants state that they met, they saw Mavundla in the company of his wife. I'll start reading from:
"On our way we saw a person" ...(intervention)
ADV DE JAGER: We have read that Mr Molohlanye.
CHAIRPERSON: What is your point?
MR MOLOHLANYE: My point is that the house in which they went to was not a camp where the IFP was but was just a house which they ...(intervention)
ADV DE JAGER: Yes.
CHAIRPERSON: His evidence is that he saw Mr Mavundla coming from an IFP camp and we have been trying to establish what he meant by a camp and he said it was a house that he thought was an IFP camp because he, from his surveillance, had seen a number of people coming from that house.
MR MOLOHLANYE: My apologies, I thought maybe he said the house which Mavundla was found was the IFP camp.
CHAIRPERSON: Mr Ngcobo, there are quite a number of camps used by the IFP to your knowledge?
MR NGCOBO: I knew of two.
CHAIRPERSON: Now which ones were those?
MR NGCOBO: That was, one was the one where Mavundla came from, one was next to an Indian school.
CHAIRPERSON: Now in your affidavit you state that on arrival at this house where Mr Mavundla was you made certain enquiries and one of those enquiries was to make enquiries about the whereabouts of one Mpemba and Henry. Who were those people?
MR NGCOBO: Those were IFP leaders, important IFP leaders.
CHAIRPERSON: What position did they hold within the IFP in that area?
MR NGCOBO: Mpemba was the chairperson of the IFP.
CHAIRPERSON: Yes and Henry?
MR NGCOBO: Henry was an activist in IFP, I don't know what position he held.
CHAIRPERSON: So he was a prominent member of the IFP?
MR NGCOBO: Yes.
CHAIRPERSON: Yes. You may proceed to lead your further evidence Mr Molohlanye.
MR MOLOHLANYE: Thank you Honourable Chair.
To go back a little, you said you were a commander. On the day did you instruct any one to accompany you to go to IFP area?
MR NGCOBO: Yes I did instruct two people.
MR MOLOHLANYE: May you please give the names to the Committee?
MR NGCOBO: Phazimani Ncishane and Myboy Mavuso.
MR MOLOHLANYE: Will you please give us the reasons why out of the number of ...(intervention)
CHAIRPERSON: What was his instruction to Myboy and Ncishane?
MR NGCOBO: I said we should go to the IFP camps, that is where these IFP people launched their attacks from.
CHAIRPERSON: What specifically were they to do at the IFP camp?
MR NGCOBO: They could do nothing else except to attack and kill off everyone there because the IFP did not want us in that area.
CHAIRPERSON: Thank you, you may proceed Mr Molohlanye.
MR MOLOHLANYE: Thank you Chairperson.
After you - oh, before I go to that. Why out of a number of people, ANC supporters in an ANC area you only chose two people?
CHAIRPERSON: What are you saying?
MR MOLOHLANYE: I want to get the knowledge what made him to only choose two people to launch an attack on an area of the IFP.
CHAIRPERSON: Yes, you may proceed to respond Mr Ngcobo.
MR NGCOBO: The reason was that it would be problematic to take along a large number of people because we may face problems when we had to flee from the area.
MR MOLOHLANYE: You left the area after Mavundla, after you left Mavundla, was he dead when you left him?
MR NGCOBO: From what I could see he was already dead because thereafter a hearse approached.
MR MOLOHLANYE: You then left the - you ran away and you met at your ANC area. According to your affidavit, I won't lead you on that, that you went to another camp. How did you kill Mr Cele and why?
MR NGCOBO: Mr Cele was killed on the way to the other camp. The camp next to the Indian school because we had been in our attack on the other one. Mr Cele was in the company of somebody else called Mandla.
MR MALAN: Would this be Mandla Zondo.
MR NGCOBO: It is possible but I do not know his surname, I just heard that he was Mandla.
MR MALAN: Do you know anyone else by the name of Zondo who gave evidence at your trial?
MR NGCOBO: No, I do not remember.
MR MALAN: Did Mandla give evidence at your trial?
MR MALAN: Yes I did see him in court. It was only then that I realised that he was the person they were referring to as Mandla because I did not know him before.
MR MOLOHLANYE: After you - oh, how did you kill Mr ...(intervention)
MR MALAN: Sorry, just as to the location as to where this happened. Was this still on your way to the camp next to the Indian school, the killing of Cele, the attack on Cele and Mandla?
MR NGCOBO: Yes.
MR MALAN: It wasn't in the camp?
MR NGCOBO: We had not reached the camp by then.
MR MALAN: Right then just again to make doubly sure on the other one, Mr Mavundla, he was also not killed in the camp, he was killed outside the camp, in a house, or outside of the house, but not in the camp. Is that your evidence?
MR NGCOBO: Yes.
MR MALAN: So although your initial instruction was to move into the two camps and attack IFP, you killed both of the people outside of the camps, not in the IFP camps in the area?
MR NGCOBO: Yes.
MR MALAN: Thank you.
CHAIRPERSON: But just to be clear on that, you found Mr Mavundla inside the camp? He was on the bed, he was sitting on the bed?
MR NGCOBO: He was in another house not the camp.
CHAIRPERSON: He was not in the camp, he was not in the house which you thought was an IFP camp?
MR NGCOBO: No.
CHAIRPERSON: So why did you get into that particular house?
MR NGCOBO: The reason is that we had seen Mavundla coming from the camp and then I instructed the two to stand on the road whilst I go and enquire from Mavundla where Mpemba was because he was the one person that we were looking for.
MR MOLOHLANYE: May I proceed Chairperson?
CHAIRPERSON: I'm sorry about that, you may proceed.
MR MOLOHLANYE: Thank you.
In your affidavit you say Mr Cele tried to run away and you caught up with him and you shot at him. Who do you refer to, who are you referring to?
MR NGCOBO: Mr Cele was not successful in running away, the person who managed to escape was Mandla whom I did not know at the time.
MR MOLOHLANYE: My question is by you saying that you caught up with him and you shot at him, I want to know who shot him?
MR NGCOBO: Myboy first shot at him then I fired thereafter.
MR MALAN: Sorry, did you instruct Myboy to shoot at him or did he shoot of his own at that stage?
MR NGCOBO: Our intention was that we would attack anyone found in the IFP area because we as ANC members were not allowed, we could not walk freely in that area.
MR MALAN: Yes but there's no evidence that you shot Mr Cele, you saw him walking with Mandla and then Myboy shot him, you didn't have a discussion with him, you didn't know whether he was IFP, it wasn't in the camp, it was on the way to the camp near the Indian school? Isn't that so?
MR NGCOBO: We did not discuss it but our belief was that any person found on that IFP area was an IFP member because if they also found any of our members, anybody walking in their area they would kill them.
MR MALAN: Now back to my earlier question, did you say to Myboy and to Mr Ncishane, "whenever you see anyone in that area shoot them", or did you say "I'm taking control, I'll tell you who to shoot, I'm your commander."?
MR NGCOBO: I ordered them to kill anyone in the IFP area.
MR MALAN: So the only people that you met up with walking in that IFP area, was that Mr Mavundla and his wife and Cele and Mandla, didn't you see anyone else?
MR NGCOBO: We did not meet anyone else besides those.
MR MALAN: You didn't see any other person, you didn't see any other person in that area in broad daylight, is that your evidence?
MR NGCOBO: I do not remember.
MR MALAN: And why did you rob both of them if your intention was to go and tell. You didn't tell them in advance you would be robbing them or did you?
MR NGCOBO: With regards to Mavundla I did explain that the intention was to buy ammunition because we were short of ammunition to be able to defend ourselves when they launched their attacks. Secondly, with regards to Cele, he had been carrying a firearm, something that we needed and we were short of. We need a firearm to protect ourselves during attacks.
ADV DE JAGER: Did you in fact buy ammunition?
MR NGCOBO: Yes I did buy ammunition.
ADV DE JAGER: Where did you buy it?
MR NGCOBO: From some people in the hostel at GN17.
ADV DE JAGER: Who was that man you bought it from?
MR NGCOBO: I do not remember his name but he was a person from uMsinga.
ADV DE JAGER: What kind of ammunition did you buy?
MR NGCOBO: SP12 pellets.
ADV DE JAGER: That's shotgun pellets?
MR NGCOBO: Yes.
ADV DE JAGER: And what kind of weapon did you take from the deceased?
MR NGCOBO: It was a homemade firearm, a 9 mm.
ADV DE JAGER: And what happened to those weapons?
MR NGCOBO: I gave them to the other comrades who did not have firearms so that we could protect ourselves.
ADV DE JAGER: Myboy told the court that you bought liquor at the shebeen, Castles, with the money?
MR NGCOBO: That was a huge mistake.
ADV DE JAGER: Was it a mistake or a lie?
MR NGCOBO: It was a blue lie.
ADV DE JAGER: Did you go to the shebeen afterwards?
MR NGCOBO: I did not consume alcohol because of the situation which was bad.
MR MALAN: Did you never consume alcohol or did you not consume alcohol then, what is your evidence. Did you not consume alcohol on that day because of the situation or are you a teetotaller. What is your evidence?
MR NGCOBO: I did used to drink but because of the situation in the area I could not afford to drink because if I would be found drunk I could get myself injured.
MR MALAN: Where did you sell the wristwatches? Let me just get this clear, in the summary of facts and according to the evidence and statements made by Myboy and yourself and others, sort of consensus of the evidence is that you took money from both victims and wristwatches from both victims. In other words you took a wristwatch also off Mr Cele. What did you do with the wristwatches? Or let me put it in order, sorry, let me say firstly, did you - can you remember taking a watch from both Cele and Mavundla?
MR NGCOBO: I remember taking a watch, a wristwatch from Mavundla, I don't remember with regards to Cele.
MR MALAN: Is it possible that you did take the watch from Cele?
MR NGCOBO: No.
MR MALAN: Did you take money off Cele?
MR NGCOBO: No.
MR MALAN: Did you take money off Mavundla?
MR NGCOBO: Yes.
MR MALAN: So what did you do with the wristwatch?
MR NGCOBO: I sold the wristwatch.
MR MALAN: Did you sell it yourself? Who sold it?
MR NGCOBO: I sold it.
MR MALAN: Where did you sell it?
MR NGCOBO: At GN17, the hostel.
MR MALAN: What did you get for the watch?
MR NGCOBO: I received R20.
MR MALAN: You sold it at the hostel?
MR NGCOBO: Yes.
MR MALAN: Is that the ANC hostel?
MR NGCOBO: It's a mixed hostel.
MR MALAN: Did you sell it to ANC members or to IFP members or to ANC supporter or to an IFP supporter?
MR NGCOBO: I sold it to any particular person.
MR MALAN: You didn't mind whether it was a supporter of the IFP or the ANC?
MR NGCOBO: No I did not mind.
MR MALAN: Now you with the R30 in cash and let's assume that you did not buy any liquor and the R20 that you got for the watch you had R50, what ammunition did you buy and where did you buy it? You bought this SP12, where did you buy it?
MR NGCOBO: Yes.
MR MALAN: Where did you buy it and from whom?
MR NGCOBO: At GN17.
MR MALAN: At the hostel?
MR NGCOBO: Yes.
MR MALAN: At the same time you sold the watch?
MR NGCOBO: Yes.
MR MALAN: You exchanged the watch for the ammunition?
MR NGCOBO: I sold the watch, I received the cash thereafter went and bought ammunition.
MR MALAN: You went where? Weren't you at the hostel then? Did you not receive the cash for the watch at the hostel? Did you not buy the ammunition at the hostel?
MR NGCOBO: Yes.
MR MALAN: Did you buy it that same occasion or did you make a second visit to the hostel to buy the ammunition?
MR NGCOBO: I performed these transactions on the same day.
MR MALAN: At the same time?
MR NGCOBO: Yes.
MR MALAN: With the same person?
MR NGCOBO: No.
MR MALAN: Did you know who to buy the ammunition from, how did you get to the seller of the SP12?
MR NGCOBO: I knew who to buy the ammunition from.
MR MALAN: Who was that person that you got the ammunition from?
MR NGCOBO: A certain man by the surname of Zulu.
MR MALAN: A man by the surname of Zulu? Was he an IFP supporter or an ANC supporter?
MR NGCOBO: He was not affiliated to any political organisation.
MR MALAN: Thank you.
CHAIRPERSON: Ms Loonat, do you have any questions? I take it that you have?
MS LOONAT: No Madame Chair, I have no questions, thank you.
CHAIRPERSON: Ms Thabethe?
MS THABETHE: No questions Madame Chair.
CHAIRPERSON: I take it that you're not going to have a single question to re-examine Mr Ngcobo on, Mr Molohlanye?
MR MOLOHLANYE: No.
NO FURTHER QUESTIONS BY MR MOLOHLANYE
WITNESS EXCUSED
CHAIRPERSON: Are you in a position to give us your legal address?
MS LOONAT: Yes.
CHAIRPERSON: But before we proceed to do so, Ms Thabethe, is this matter opposed?
MS THABETHE: No Madame Chair.
CHAIRPERSON: Ms Loonat you may proceed to give us your address but would you prefer that you do that after lunch? I know that it's five to 1, maybe we should adjourn for lunch until half past 1 whereafter we would then expect you to address us?
MS LOONAT: Madame Chair, I would prefer it after lunch, thank you.
CHAIRPERSON: Mr Molohlanye, would that be in order with you?
MR MOLOHLANYE: That is correct.
CHAIRPERSON: We'll adjourn until 1.30.
MR MOLOHLANYE: As the Committee pleases.
COMMITTEE ADJOURNS
CHAIRPERSON: Ms Loonat are you in a position to commence with your argument?
MS LOONAT: Sorry I missed that Madame Chair?
CHAIRPERSON: Are you in a position to commence with your legal argument?
MS LOONAT IN ARGUMENT: Yes, certainly Madame Chair, thank you.
Madame Chair, Honourable Members of the Committee, my learned colleagues, my client is an uneducated, simple man of mature years. He has committed no offences for which he could be charged throughout his life. He is now 40 years old. His fight for survival, warding off the persistent unprovoked attacks by the IFP on his homestead albeit an informal settlement, was aimed not at him personally but generally at ANC supporters in his area of which he has been and still is a staunch member since the '80's and this eventually took it's toll on him.
He was instructed to do something positive on the 20th July 1991 in furtherance of his political struggle. Together with two ANC members there was a common purpose and it was to eliminate the deceased who were known IFP members. The sole purpose was to achieve peace.
MR MALAN: Sorry, why do you say to eliminate the deceased who were known IFP members? That's totally contradictory to the evidence, is it not?
MS LOONAT: Sir I understand that they were aware that these were IFP members, according to my clients, because when they raided his area he had known them to be IFP supporters raiding and he recognised them as such.
MR MALAN: Ms Loonat, your client's evidence was that he never saw Mr Cele before, he had no knowledge of him, he'd seen Mavundla before. That was his specific evidence?
MS LOONAT: I beg your pardon, Mr Malan, yes Mavundla was the Inyanga that he knew and he knew him as the IFP person. I beg your pardon, then Mr Cele was pointed out to him a being an IFP supporter by Ngcobo, does that satisfy you Sir?
May I proceed?
CHAIRPERSON: You may proceed.
MS LOONAT: He who did not even fire at the two victims for want of possessing a firearm was charged for murder and sentenced to 18 years imprisonment. He has served 8 years approximately. In line with full disclosure he has told all and is prepared to implicate all who participated in these murders and other raids and helped track them down if that is what is expected of him.
He is extremely remorseful of what has transpired. Innocent lives are lost in political warfare. He apologises for the grief his participation has caused these families. He realises that to maim or murder does not resolve anything, it in fact exacerbates the already volatile situation. He has no previous convictions. He was not interested in even robbing the victims on that day except if it came about that any monies taken would be used for the furtherance of his ANC party aims.
CHAIRPERSON: Is there any evidence that he was aware that any kind of repossession or robbery would be part of the instruction that was issued to him by Mr Ngcobo?
MS LOONAT: Madame Chair, I understood that as part and parcel of it, if any monies were to be recovered from their victims, it would go into a fund towards party promotion and in this case it was to buy ammunition. Thank you.
MR MALAN: You may have understood that from him but I don't recall you having lead that evidence?
MS LOONAT: I beg to differ but I think it was led, Mr Malan, thank you.
CHAIRPERSON: It wasn't specifically led, it came out from questioning of Mr Ncishane but that's not the evidence that you pointedly led, particularly with regard to the nature, the professed nature of the instructions from Mr Ngcobo, but you may proceed.
MS LOONAT: I do concede that, thank you.
He was employed at the time of his arrest. He did lead evidence to the effect that he sacrificed his employment in order to bring about peace to his party and family. He honestly believed that by removing these troublemaking IFP supporters, beginning with the two deceased from whom he is presently seeking amnesty, he would surely achieve the peace he so desperately sought.
On page 79 of the bundle I refer you to the learned Judge Combrink's statement in which he states at line 9, I quote:
"Two middle aged men, for no apparent reason except political differences were brutally murdered."
Sorry? Page 79. He had, I repeat, had two children and a wife. This political warfare resulted in their deserting him. Financially he is a man of straw so he cannot even begin to think how he could assist the bereaved families. He appreciates his actions have caused the victims' families immense suffering. He admits too that this is something he could not have foreseen. Nor was it part of his agenda. Such easy prey for political propaganda, coupled with the fact that his party persistently enjoyed losses in the hands of the IFP raiders. He is paying the price for his political intolerance but he cannot escape the nightmares he experiences for his involvement. He vows never to resort to criminal acts to achieve his political objectives, instead he wishes in the spirit of reconciliation to tell the truth, to reach out to all political opponents and to educate himself in party politics with the assistance of those more learned than himself. To try to understand the other man's views instead of resorting to violence to achieve political objectives, such as peace.
I humbly submit that my client has satisfied all the criteria as set out in the Act. In the circumstances I humbly submit further that the Committee grant him amnesty as his actions fall within the ambit of Section 20, sub-section 2(a), (d), (f) and sub-section 3 (b) and (e). Thank you Madame Chair.
CHAIRPERSON: Is he serving an effective sentence of ...(inaudible)
MS LOONAT: That is correct, Madame Chair.
CHAIRPERSON: Mr Molohlanye?
MR MOLOHLANYE: Thank you Chairperson.
CHAIRPERSON: Do you have anything to respond to these submissions made by Ms Loonat?
MR MOLOHLANYE: No your Worship, I don't have anything.
CHAIRPERSON: Ms Thabethe?
MS THABETHE: No response Madame Chair.
CHAIRPERSON: In that case we bounce back to you Mr Molohlanye, do you wish to address us with regard to any legal issues concerning the application of Mr Ngcobo?
MR MOLOHLANYE IN ARGUMENT: Yes Honourable Chair, thank you.
In my submission, Chairperson, I'll not like to go back to the evidence that was led in this hearing, but I'd like to stress that the requirements of the Act, the Promotion of National Unity and Reconciliation Act on granting of amnesty on an application, I'll submit that the applicant, Mr Ngcobo, satisfied all the requirements of Section 20 because he has made a full disclosure of his participation in the acts which were committed with a political objective and in the conflict of the past and going further to Section 20, sub-section 2(a) where this Mr Ngcobo was a member of a publicly known political party and he held a position of a commander, he disclosed that, he did not deny and he was involved in the struggle waged by such organisation of which he was a member against another publicly known organisation or liberation movement.
I therefore submit also in terms of sub-section 3 of the same section that the acts of the applicant were associated with a political objective and therefore made the criteria in terms of sub-section 3, that is from sub-section 3(a) to (f). Thank you.
CHAIRPERSON: Ms Loonat, do you wish to respond?
MS LOONAT: No Madame Chair, thank you.
CHAIRPERSON: Ms Thabethe?
MS THABETHE: No Madame Chair.
ADV DE JAGER: Could I only ask you, suppose I'm not satisfied that the money was taken for political purposes, how would it effect your main application for murder.
MR MOLOHLANYE: It would effect it in the sense that a robbery was committed, that is admitted and the money according to the applicant was used for buying ammunition for the furtherance of a political objective, that is to buy ammunition for the organisation of which he was a member.
ADV DE JAGER: No, I know that's his evidence, but suppose I won't believe him on that part of the evidence, what about the other evidence for the murder, would that still stand or would it effect that evidence?
MR MOLOHLANYE: It will effect because if you don't take it then there will be no full disclosure on the part of the applicant.
ADV DE JAGER: No full disclosure about another offence which he's not even applying for amnesty for, he's not applying for amnesty for the robbery?
MR MOLOHLANYE: But at the opening I made an application for amendment of the application to include robbery. I think he is now in terms of why it was granted and he's applying for robbery also.
MR MALAN: Mr Molohlanye, if I may put it to you the same question in a different way? The question is, if the panel should not be satisfied that the robbery was political but criminal, suppose that's for the moment for argument's sake, the panel decides that the robbery was a criminal act, it wasn't with a political motive, how would that effect the murder? Would that have an effect on the motive, the political motive, the political objective sought through the murders, the killings?
MR MOLOHLANYE: Thank you Honourable Member. I think in terms of the judgement, the applicant was not convicted on the issue of robbery and therefore his application or application for murder or for robbery if he's not taken, would not effect his evidence in terms of the murder of the main application that he made for murder.
MR MALAN: Let me put it bluntly. Why should the deduction not be made that the killing was in order to rob?
MR MOLOHLANYE: No, I would say because it was put here in terms of the evidence that was led that the applicant and his co-accused or the other applicants, they went into the IFP area with the sole purpose of attacking and killing members of the IFP and in them doing so they went further and took their possessions that they can buy ammunition ...(intervention)
MR MALAN: It's clear you're not hearing my question. My question is if the panel should believe that the taking of the wristwatches and cash was a criminal act was mere theft because that if we decide in our understanding that was not the objective, would that objective not flow over as a criminal, an indication of a criminal intention in the killings? That's the question of Mr de Jager.
CHAIRPERSON: May I try and clarify the issue further? Will you say that if we should find that there was no political motive for the robbery, that it was criminal, would that dilute your argument and your submission that the two killings were politically motivated and that the act of killing both Mr Cele and Mr Mavundla was aimed at achieving a political objective as evidenced, as evinced by your client? Would you say that you would still find, you would still argue and submit that they still have a political motive for the killing and that the evidence led before us should satisfy us that the killing was politically motivated and that whatever finding we have in respect of the robbery should not effect the motive that your client has testified to with regard to the killing?
MR MOLOHLANYE: Thank you Madame Chair, that is clear and I'm indebted to you.
I think or I'd like to say that the robbery will not effect the purpose and the objective of the attack or the killing of these deceased. Thank you.
CHAIRPERSON: Thank you very much to the two legal representatives, presenting both Mr Ncishane, Ms Loonat, Mr Ngcobo represented by Mr Molohlanye and Ms Thabethe. We'll reserve judgement in respect of this application and we'll pronounce our decision in due course.
MS THABETHE: As the Committee pleases.
MR MOLOHLANYE: As the Committee pleases.
MS LOONAT: As the Committee pleases, thank you.
CHAIRPERSON: Ms Loonat you are excused.
MS LOONAT: Thank you.
CHAIRPERSON: Ms Thabethe what is the next matter to be heard?
MS THABETHE: The next matter Madame Chair is the matter of Madlala and Mngomezulu.
ADV DE JAGER: In the previous application were the victims notified and did you hear anything from them?
MS THABETHE: In the previous incident?
ADV DE JAGER: Yes.
MS THABETHE: I just want to confirm my answer before I give it.
CHAIRPERSON: There was an indication that the publication was by means of radio broadcast. What may assist us in ascertaining would be the date because the date was not inserted, the date on which the radio broadcast was made with Radio Zulu. Will you get that information and give it to us in due course?
MS THABETHE: I'll do that Madame Chair.
