Amnesty Hearings

ON RESUMPTION

CHAIRPERSON: Mr Sardiwalla, are we in a position to proceed with the application of Aaron Zibuse Zulu?

MR SARDIWALLA: I confirm that I appear on behalf of Aaron Zibuse Zulu and that we are in a position to commence with the proceedings.

CHAIRPERSON: Ms Thabethe, what is the position with regard to the victims?

MS THABETHE: Madam Chair, I have consulted with the victims and I've got an instruction to oppose the application.

MR SARDIWALLA: Chairperson, I have prepared a supplementary affidavit for the benefit of the Committee and the hearing. The affidavit has been signed by my client and is dated today and with the leave of the Committee, may I hand up the original signed copy?

CHAIRPERSON: You may and it will be marked as Exhibit A. Where is your client, Mr Sardiwalla?

MR SARDIWALLA: My client is in the audience. Aaron Zulu.

AARON ZIBUSE ZULU: (sworn states)

CHAIRPERSON: Mr Sardiwalla.

MR SARDIWALLA: Thank you, Chairperson.

EXAMINATION BY MR SARDIWALLA: Mr Zulu, are you a resident of the commonly known Tugela Mountain area, where you were resident of that area during 1987?

MR ZULU: Yes.

MR SARDIWALLA: And did you belong to any particular organisation?

MR ZULU: Yes.

MR SARDIWALLA: What organisation did you belong to?

MR ZULU: The ANC.

MR SARDIWALLA: What was your involvement with the African National Congress?

MR ZULU: I was a member.

MR SARDIWALLA: Can you give us a brief description as to what the situation was at Maqonqo, commonly known as Table Mountain, during 1987?

MR ZULU: In 1987 the conflict between the IFP and the ANC started.

MR SARDIWALLA: And were you a party to this conflict?

MR ZULU: Yes.

MR SARDIWALLA: In what sense were you a party to the conflict?

MR ZULU: I was involved because I was also in the fighting, fighting for my organisation the ANC.

MR SARDIWALLA: You are the applicant today and you've submitted in your application brief facts relating to your request for amnesty.

MR ZULU: Yes.

MR SARDIWALLA: You also, on perusing your initial application, noticed certain errors in the application?

MR ZULU: Yes, there were several mistakes.

MR SARDIWALLA: Yes. The one aspect was that you referred to the date of the incident as being the 2nd of February, was it?

MR ZULU: Yes, that was a mistake.

MR SARDIWALLA: In a subsequent affidavit you corrected that to be the 2nd March.

MR ZULU: Please repeat the date.

MR SARDIWALLA: In a subsequent affidavit that was filed today in court, you corrected the date to read the 2nd March 1993.

MR ZULU: Yes.

MR SARDIWALLA: You also referred to Nkosenye Majola as being one of the persons that fled after the incident, in your initial application.

MR ZULU: Yes.

MR SARDIWALLA: And you, in today's affidavit, have amended that and you advise the Committee that Nkosenye Majola was not present at the incident itself, but that Khumbu Shangase whom you omitted, was in fact present.

MR ZULU: Yes.

MR SARDIWALLA: What was the reason for that change?

MR ZULU: Nkosenye was present when we planned the act, but I actually made a mistake when I said he was present when the actual act was carried out.

MR SARDIWALLA: Now as a member of the ANC did you receive any formal training?

MR ZULU: Yes, I was trained.

MR SARDIWALLA: Can you elaborate what training you received?

CHAIRPERSON: We don't need that evidence Mr Sardiwalla.

MR SARDIWALLA: Thank you.

CHAIRPERSON: We are satisfied with what is contained in his affidavit.

MR SARDIWALLA: Thank you Chairperson, I would not pursue that further. I will now go on to the aspect relating to events leading up to the incident. It appears that, from your affidavits, there were repeated attacks and counter attacks between the ANC and IFP.

MR ZULU: Yes, that did happen.

MR SARDIWALLA: And after the death of Chief Mapumulo there was a certain level of escalation in this violence.

MR ZULU: Yes.

MR SARDIWALLA: Now, were you a party to the ANC when various attacks and counter attacks had taken place?

MR ZULU: Yes.

MR SARDIWALLA: In 1993, around the date when our erstwhile Pres Nelson Mandela was released, there was a further escalation of violence.

MR ZULU: That is correct.

MR SARDIWALLA: Can you very briefly tell us what was the nature of the violence. What was happening at Table Mountain, or Maqonqo?

MR ZULU: At the time the IFP disapproved of the presence of ANC members inside the area. There was fighting going on between members of the ANC and the IFP in that regard.

MR SARDIWALLA: On the 26th February there was a major incident that took place. Can you elaborate what happened on that date?

MR ZULU: Yes. There was an attack and some of our colleagues in the ANC were injured, although I do not remember all of their names, I can just remember two or three.

MR SARDIWALLA: Who were these people that were injured or killed?

MR ZULU: They were killed. It was Joseph Mlambo, Johannes Bengu and Themba Ngwenya.

MR SARDIWALLA: Sorry, can you repeat the names please?

MR ZULU: Joseph Mlambo, Themba Ngwenya.

MR MALAN: And Johannes Bengu, did you say?

MR ZULU: And Johannes Bengu.

MR SARDIWALLA: After this incident, were the tensions flared as a result of this incident?

MR ZULU: Yes, the tensions were very high, such that we also met and discussed that we attack the IFP members.

MR SARDIWALLA: You held a meeting on the 1st March, on the evening of the 1st March 1993. What happened there? What was discussed?

MR ZULU: We were discussing the fact that IFP members were able to attack us, therefore we should make a plan of how we should also attack them.

MR SARDIWALLA: And what was the plan that was discussed?

MR ZULU: We discussed the fact that we cannot get them at their homes, therefore it would be easier to get them along the road, maybe we should just go and block the road and get them there.

MR SARDIWALLA: Yes, go ahead. What else was discussed?

MR ZULU: We then discussed that we would go the following morning and proceed to that spot where we would block the way.

MR SARDIWALLA: Was there any specific target discussed?

MR ZULU: Our intention was to look for Makeke, not everybody else.

MR SARDIWALLA: Who is Makeke?

MR ZULU: He was one of the leaders in the IFP.

MR SARDIWALLA: And how did you plan to get hold of him?

MR ZULU: We would get him because he used to drive a vehicle.

MR SARDIWALLA: Was there any specific vehicle that he drove?

MR ZULU: Yes, we knew his vehicle.

MR SARDIWALLA: What was the vehicle?

MR ZULU: It was a cream-white bakkie with a white canopy.

MR SARDIWALLA: So what was your plan?

MR ZULU: We planned that as his vehicle approached, we would come out and stand quite near to it and shoot at it.

MR SARDIWALLA: And when you say we, who were the we involved in this process?

MR ZULU: I was with Saul Mkhize, Sishe Madlala, Khumbu Shangase.

CHAIRPERSON: Please be slow when you speak. Please repeat.

MR ZULU: Sishe Madlala, Khumbu Shangase.

MR SARDIWALLA: Yes, so the decision was that you were to attack the vehicle on that evening?

MR ZULU: Yes.

MR SARDIWALLA: How did you proceed to execute this plan?

CHAIRPERSON: Are you saying - I thought the evidence was that it was the following morning they were to attack.

MR SARDIWALLA: Thank you Chairperson, yes, may I just correct that evidence? This incident took place - you proceeded to execute this plan the following morning, is that right?

MR ZULU: That's correct.

MR SARDIWALLA: Just before we get on to the incident itself, about how many people were present at that gathering that made this decision?

MR ZULU: There were 20 people present.

MR SARDIWALLA: And did the gathering then decide on who was to execute this?

MR ZULU: No, after the meeting we volunteered that we were going to go and carry out the attack.

CHAIRPERSON: May I, on a point of clarity, just take that up? After you had decided to attack this van, did the meeting not discuss who was going to participate in the actual attacking of the van?

MR ZULU: No, the meeting did not participate in that because no-one wanted to nominate anybody else, it was just us who decided on the side.

CHAIRPERSON: So you met on the side after this meeting?

MR ZULU: Yes.

CHAIRPERSON: So the only decision that was taken by the meeting was that this van must be attacked?

MR ZULU: Yes.

CHAIRPERSON: But the meeting did not decide as to who was going to launch the attack?

MR ZULU: No, the meeting did not make the decision.

ADV DE JAGER: Did you volunteer in the meeting while the meeting was still in progress?

MR ZULU: We went aside after the meeting and decided that we were the ones who were going to carry out the mission.

CHAIRPERSON: Who had convened this meeting, the meeting of the 1st March?

MR ZULU: I will say the person who might have been in charge was Nkosenye.

CHAIRPERSON: And what position did you hold within your local branch?

MR ZULU: I did not have a position.

CHAIRPERSON: In what capacity did he convene this meeting?

MR ZULU: He convened the meeting because we as a people had been harassed and attacked and whatever happened, happened to us collectively.

CHAIRPERSON: You may proceed, Sir.

MR MALAN: May I just get clarity here? Did he call the meeting or did you happen as supporters of the ANC to be together? Was this a formal meeting?

MR ZULU: It happened as we were sitting around as ANC members, that we discussed this matter.

MR MALAN: There was no meeting called, he didn't send out people to call you to a meeting?

MR ZULU: No, no-one called us because at that time we were residing at the mountains. We were already staying in the mountains.

MR MALAN: You were together?

MR ZULU: Yes, we were together.

CHAIRPERSON: You may proceed, Mr Sardiwalla.

MR SARDIWALLA: Thank you, Chairperson. So this meeting, was it not just a group of people that decided they must take some action, or was it an organisation ANC meeting? What was it? Just to clarify that aspect.

MR ZULU: It was ANC members who made the decision.

MR SARDIWALLA: And was this the way in which you normally made these decisions, or was it any different to the normal procedure of your meetings, ANC meetings?

MR ZULU: Yes, that was a normal procedure.

MR SARDIWALLA: Now, was there any particular reason why you were not openly - why there wasn't a nomination as such openly at an open meeting to say you and you would be executing this decision? Why did it have to be done shortly after, where people volunteered? Was this the procedure, or can you explain why?

MR ZULU: The reason we decided after the meeting on our own was that there were people who would sometimes come to listen to what was said in the meetings, whereas they were not members of the organisation so that if that happened that there were people who had been listening to the discussions in the meeting, they would not be able to go back and inform the authorities that Saul and the other persons were going to be carrying out this mission.

CHAIRPERSON: Let me get clarity on this. Are you suggesting to us that you as people who had left your homes, you had fled because of the height in violence and you were staying at the mountains. You did not trust one another. Staying at those mountains you still thought there would be an infiltration of IFP members in your midst?

MR ZULU: Yes.

CHAIRPERSON: Yet you still proceeded to take decisions with regard to which target of the IFP you planned to attack, without fear of the fact that that decision would filter into the ears of the IFP?

MR ZULU: Yes, although we did mention who was to be attacked, we did not regard it as wrong to make that decision because no-one at that point was mandated to carry out the act.

CHAIRPERSON: But wouldn't you have been scared that the very decision that you had taken would then be disclosed to the IFP and the whole objective of taking a decision would be defeated because, by the time you go there, you are most likely to be having the IFP waiting for you?

MR ZULU: It was not easy for them to get that information because at that time it was already in the evening and no-one would have taken the information back to them.

CHAIRPERSON: Thank you. Proceed, Mr Sardiwalla.

MR SARDIWALLA: Thank you, Chairperson.

This white bakkie that you had intended targeting, did you know enough about this bakkie and the fact that the person you were targeting would be in this bakkie?

MR ZULU: Yes, we knew, we had received information that that was the vehicle he drove.

CHAIRPERSON: From whom had you received such information?

MR ZULU: A certain female had actually told us that Makeke used to drive that van.

CHAIRPERSON: Now is that how you knew that Makeke drove the vehicle?

MR ZULU: Yes.

CHAIRPERSON: And that was your only source, from this lady?

MR ZULU: Yes.

CHAIRPERSON: Mr Sardiwalla, you may proceed, bearing in mind obviously that you must have recourse to the evidence that is before us by way of an affidavit with regard to this particular issue, that's paragraph 6.12.

MR SARDIWALLA: In your affidavit you made specific reference to this vehicle being used in previous ambushes. Can you explain that?

MR ZULU: Yes. That did happen. We did see the vehicle.

MR SARDIWALLA: Where did you see it?

MR ZULU: We saw it approaching whilst we were sitting.

MR SARDIWALLA: No, I'm talking about the vehicle that you said you regularly saw being used during the time of previous ambushes against you or against your organisation.

CHAIRPERSON: That's not correct. The vehicle had been identified during the attack of the 26th of February and not any other attack. That's very specific. There was only one attack in which this vehicle was identified and that's the attack of the 26th of February.

MR SARDIWALLA: My apologies Chairperson. Yes, I think you are quite correct. I'm looking at the incorrect statement, sorry, my apologies Chairperson. Yes, to get back to your paragraph 6.12.

CHAIRPERSON: Does he have a copy of this affidavit you are referring to?

MR SARDIWALLA: ...(indistinct - mike not on)

CHAIRPERSON: Can he read English?

MR SARDIWALLA: ...(indistinct - mike not on)

CHAIRPERSON: Yes, it could also expedite our proceedings if maybe you can lead him obviously having regard to the evidence already accepted by this Committee by way of an affidavit.

MR SARDIWALLA: Thank you Chairperson.

CHAIRPERSON: Mr Zulu, your attorney is reading on page 4. At the moment he is reading from paragraph 6.12.

MR ZULU: Yes, I see that.

CHAIRPERSON: Can you read English?

MR ZULU: Yes, I can.

CHAIRPERSON: And do you understand it?

MR ZULU: Although not fully but I can pick up here and there.

CHAIRPERSON: If you do not understand what is written there, because it is not your first language, there are interpreters who are available to help you.

MR ZULU: Yes, they can help me.

CHAIRPERSON: Yes, Mr Sardiwalla.

MR SARDIWALLA: Thank you Chairperson. If you look at paragraph 6.12 on page 4,

MR ZULU: Yes, I can see that.

MR SARDIWALLA: You - can you comment on that particular paragraph where you say you identified the white bakkie transporting members of the IFP during the attack on the 26th February 1993?

MR ZULU: Yes.

MR SARDIWALLA: So was that or was that not one of the prime reasons why you decided to target this bakkie?

MR ZULU: Yes, that's correct.

ADV DE JAGER: Were you present at the attack on the 26th February?

MR ZULU: Yes, I was present.

ADV DE JAGER: Did you yourself see this bakkie or not?

MR ZULU: Yes, I did see it.

MR MALAN: Did you know who this bakkie belonged to?

MR ZULU: Yes, I did.

MR MALAN: Why did you tell us that a certain woman, a certain female told you that Makeke drove that van?

MR ZULU: Yes, she was confirming that knowledge we had Although we were aware that he used that van, it was her who confirmed that information that yes indeed he used the vehicle.

MR MALAN: Who was this female?

MR ZULU: Tula Cele Gcabashe.

MR MALAN: Thank you.

CHAIRPERSON: Proceed, Mr Sardiwalla.

MR SARDIWALLA: Thank you. On the morning of the 2nd March you proceeded to execute your decision. Can you explain where you went and what you did? I am referring you specifically, if you look at your affidavit, to page 5 paragraph 16.15, 6.15 sorry, and 6.16, 17 and 18. Can you look at them and explain those aspects in your affidavit?

CHAIRPERSON: Before you proceed, Mr Sardiwalla, just to expedite these proceedings so that we don't have to come back as a Committee to ask questions of clarity, you might as well try and interject, which is quite an uncomfortable position for you but maybe it will also afford you an opportunity to try and do whatever damage might be done by your client whilst he's still giving his evidence in chief. Your paragraph 6.14 speaks of Saul Mkhize, Khumbu Shangase, Sishe Madlala and the applicant as having been deployed to ambush the vehicle at the meeting of the 1st of March 1993. My concern, I hope you will appreciate, is the fact that the evidence that we have thus far, is that nobody deployed them to ambush the vehicle, that they themselves volunteered to do this aside. Now we have no evidence whether this was taken back to the meeting and the meeting then confirmed that since you have volunteered you may proceed. How, in what context is this word deployed used having regard to the viva voce evidence of Mr Zulu?

MR SARDIWALLA: Chairperson, may I just explain what I understood and what I believe my client understands as being this paragraph. He has given evidence as to why this particular method was being used in taking decisions and in the normal sense, yes, I would agree that deploying is an instruction by a group or a person saying "go and do this, you, you and you go and ensure that this task is done", but because of the nature of events that my client has explained at the time, the method by which people deployed themselves to conduct a particular deed or act in the pursuance of a decision, was as he has described. It was not done - effectively they were deployed or they were deploying themselves via this process that was the common method by which it was done. So it was a form of deploying but not in the sense that one would normally use it given the circumstances.

CHAIRPERSON: So this in fact was an unfortunate choice of a word on your part. You drew the affidavit based on his instructions.

MR SARDIWALLA: Yes, I may concede that maybe it wasn't quite intended to be deployed, although in the general context of the evidence, it was an accepted aspect that he had been deployed, but yes, I agree, in the light of what he has said today it may be is the wrong choice of word.

ADV DE JAGER: After you volunteered, who planned the attack the next morning? Was the attack planned only between the four of you?

MR ZULU: Yes, we planned the attack.

ADV DE JAGER: Did you decide where the attack should take place?

MR ZULU: We decided that we were going to block the road, or the route that they used.

ADV DE JAGER: Did they use that road every day?

MR ZULU: Yes, they did.

ADV DE JAGER: Did anybody watch him, survey him for a few days to see what he's doing and who's accompanying him?

MR ZULU: No, no-one did that but we knew that that was the road they used.

CHAIRPERSON: We need to take a two minute adjournment at the request of somebody who has chosen to remain unknown at this stage.

COMMITTEE ADJOURNS

ON RESUMPTION

AARON ZIBUSE ZULU: (s.u.o.)

CHAIRPERSON: Mr Sardiwalla you may proceed, the ball is still in your court.

EXAMINATION BY MR SARDIWALLA: (cont)

Thank you Chairperson. The morning of the 2nd of March 1998 you proceeded to execute your decision. Now can you briefly confirm the steps you took as described in paragraphs 6 - 15, 16, 17 and 18 of the affidavit at page 5?

MR ZULU: On the 2nd of March we went out to dig out the weapons we had concealed. There were two Ak47's, V11 and a 303 firearm. We thereafter left. There was a steep hill where we hid behind some trees. That is where we waited until the vehicle approached and when it approached we went out onto the road and we started firing.

MR MALAN: Please continue. Tell us about the firing.

MR ZULU: There were four of us and we fired simultaneously and we were standing just next to the road where the vehicle was approaching, that is in front.

MR SARDIWALLA: Now as far as the road is concerned, can you just describe the road? Did you see this vehicle approaching from a distance?

MR ZULU: We saw it approaching from a distance and we prepared ourselves so that as it came closer to us we would come out from where we were hiding and start firing.

MR SARDIWALLA: Are you saying that it was just after a bend that you opened fire, when the vehicle emerged on an incline, at a bend?

MR ZULU: Yes.

MR SARDIWALLA: Did you ever have the opportunity of checking who was in the vehicle?

MR ZULU: No, we could not ascertain who was in the vehicle.

CHAIRPERSON: Can you give us an estimation of how far were you from the point at which this car was, that is the bend in the road? How far were you? You were hiding in some trees.

MR ZULU: I think it could have been 10, 15 or 20 metres, although I'm not sure whether I'm accurate.

ADV DE JAGER: And did you step out into the road and block the road?

MR ZULU: We stepped out and stood on the edge of the road and started firing.

MR SARDIWALLA: Now, when you fired were you facing the vehicle head on?

MR ZULU: Saul was facing the vehicle although he was not in the centre of the road, but he was standing on the road and we were all facing the vehicle.

CHAIRPERSON: Who was that, I didn't get.

MR ZULU: Saul.

MR SARDIWALLA: And where were you standing?

MR ZULU: I was standing on the side.

MR SARDIWALLA: When you commenced firing, you say the vehicle was about 10, 15 or 20 metres. Can you give some indication in this ...(intervention)

CHAIRPERSON: 10 or 15 metres, not 20 metres.

MR SARDIWALLA: My apologies, 10 or 15 metres. Can you give some approximation of the distance here, from where you are sitting, as to where the vehicle was?

MR ZULU: Yes, I can. From where I am seated it could be up to the lady out there. I would say up to that distance where the lady is standing.

MR SARDIWALLA: Would one estimate that as being approximately, Chairperson, about 50 metres, 40, 50 metres?

CHAIRPERSON: No, ...(indistinct - mike not on about 10 to 15.

MR SARDIWALLA: 15 metres, from there? 20 at the most, yes.

Okay. Did you have a specific view of who was in the vehicle? You say you did not?

MR ZULU: No, we did not see who was inside.

MR MALAN: May I just get back to this distance from the vehicle. Were you that distance from the vehicle when you were shooting?

MR ZULU: Yes, I have mentioned before that I may not be accurate in measuring it in metres.

MR MALAN: Yes, we're not talking metres. You pointed the distance here, which we agreed, I think we're satisfied is at the most 20 metres. My question is this, I understood you to be saying Saul was in the road in front of the vehicle and you were on the side. Did you shoot at the front of the vehicle or were you next to the vehicle on the side?

MR ZULU: We fired towards the front and some fired at the side of the vehicle.

MR MALAN: Now this is exactly the question, were you firing at the side of the vehicle or at the front?

MR ZULU: I fired towards the side.

MR MALAN: Now if you were firing to the side, how broad was this road that you could be 20 metres away, firing at the side?

MR ZULU: The road was wide, as well as the fact that at that time the car was turning around a bend, so that at that time the side of the vehicle was facing towards us.

MR MALAN: That I really don't understand. Is this bend, can you point the bend for us? A bend is not a turn to the right or to the left, in terms of a 90 degree turn. What kind of a bend?

MR ZULU: It was a bend where the car was going to turn left.

MR MALAN: Was it a single road or was there a connecting road?

MR ZULU: It was one single road.

MR MALAN: I don't know how to get the information as to the nature of this bend. We don't have a map or anything that could indicate that. Could you explain to us the width of the road in distance? Was it as wide as from where you are sitting to where I am, or to where your counsel was, or to the back of the hall?

MR ZULU: The width would be from where I am seated to the person with the camera out there.

MR MALAN: That's about 8 paces. Now, and you were standing on the side of the road?

MR ZULU: Yes, I was on the side.

MR MALAN: Now can you again explain to us, if that was the width of the road, how could you have been as far as you earlier pointed to us, the lady standing, which we agreed was at most say 20 metres away?

MR ZULU: Please repeat that question.

MR MALAN: Can you explain to us how could you have been 20 metres away from the car, if you were standing on the side of the road shooting at the side of the vehicle, when the road was only from where you are sitting to the person with the camera?

MR ZULU: I was standing on the side, waiting for the car to approach because it was coming from below and going up that steep hill.

MR MALAN: Did the car stop?

MR ZULU: It stopped after we had fired at it.

MR MALAN: How far were you from the car when it stopped?

MR ZULU: Although I cannot estimate the distance, but maybe I could point it out here.

MR MALAN: Please do.

MR ZULU: When the vehicle stopped I would say maybe I would be where I am seated and the vehicle would be there where my attorney is sitting.

MR MALAN: That's two times the width of the road. About 16 paces, or a little less.

CHAIRPERSON: I think about 10 to 12 paces.

MR MALAN: Thank you.

ADV DE JAGER: And when it stopped, did the driver jump out and run away?

MR ZULU: I could not see him.

ADV DE JAGER: But weren't you shooting at the driver?

MR ZULU: Yes, we were directing our shots towards the driver, but when he stepped out of the vehicle we did not see him.

CHAIRPERSON: Is it your evidence today that you saw no-one leaving the vehicle?

MR ZULU: Yes, no-one saw the driver stepping out of the vehicle.

CHAIRPERSON: I'm not talking about the driver, you saw no-one leaving the vehicle during your attack?

MR ZULU: No, we did not see anyone because after firing those shots we ran away.

CHAIRPERSON: In your affidavit you say the shooting lasted for a minute or two and during that time nobody escaped from the vehicle. I am waiting for an answer.

MR ZULU: At that time we did not see anyone stepping out of the vehicle because we were preparing to flee.

CHAIRPERSON: And you couldn't see how many people were inside the vehicle?

MR ZULU: No, we did not see that.

CHAIRPERSON: Could you have sight at least of the driver?

MR ZULU: No.

CHAIRPERSON: When you started firing at the car, that car had reached the top of an incline, is it not so?

MR ZULU: No, it was just at the start of the incline.

CHAIRPERSON: So it had not reached the top of the incline?

MR ZULU: No, it had not reached the top, it was just at the start of that incline.

CHAIRPERSON: So the bend is before you reach the top of the incline?

MR ZULU: Yes.

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

MR SARDIWALLA: Thank you Chairperson. So you fired. The firing lasted for a minute or two and you say you fled thereafter. Where did you flee to?

MR ZULU: We fled to where we used to reside.

MR SARDIWALLA: So did you not wait for any particular response to see what the effects of your shooting were?

MR ZULU: No, we did not wait.

CHAIRPERSON: Why did you not go to the car to see how many people had fallen victims of what you had intended to do? Your stated objective was to kill a certain Mr Makeke. Did you not have an interest in finding out if that driver was indeed Makeke and if that Makeke had died, because the stated objective of this attack was to kill Makeke?

MR ZULU: It was not easy to go check at the vehicle because we believed that they were also armed and they could easily fire at us, that is why we just fired and then fled.

CHAIRPERSON: Were you ever told that Makeke moved in the company of people who were armed at all times?

MR ZULU: Yes, we knew that.

CHAIRPERSON: Where did you get that information?

MR ZULU: We used to see him passing in the company of those people.

CHAIRPERSON: So you actually knew Makeke quite well?

MR ZULU: Yes, I knew him.

MR MALAN: May I just find out - Makeke, what was his full name? Is it Mkhize?

MR ZULU: I just know him as Makeke.

MR MALAN: You're aware that in the trial of your brothers, that evidence was introduced there that a certain Mkhize was the target?

MR ZULU: I have no knowledge thereof.

MR MALAN: I can just refer you to page 5 of the Judgment which is in the bundle, that in a statement by your brother the accused number 1, which was the subject of a trial within a trial, that he told that he was instructed by his uncle, accused number 2, to join him in an intended attack upon a certain Mkhize and he named in that statement, Mkawe, Toto, Saul and Sishe as the co-conspirators. You also names Saul and Sishe and I think Toto. You did not mention Toto?

Saul and Sishe. But you don't know who this Mkhize was?

MR ZULU: Which Mkhize?

CHAIRPERSON: Was it ever your intention to kill a person by the name of Mkhize, as opposed to Makeke?

MR ZULU: No, I did not have such intentions because that was my brother.

CHAIRPERSON: Do you know this Mkhize, who has been referred to in this Judgment? Are you familiar with the statement which has been put to you by Mr Malan?

MR ZULU: No.

CHAIRPERSON: Yes, but would you know which Mkhize your brother was referring to?

MR ZULU: I would not know, but there is just one Mkhize that I know and that person is my brother.

CHAIRPERSON: You would be speculating, wouldn't you, because there is no first name?

MR MALAN: He said Mkhize was his brother.

CHAIRPERSON: Yes, but he doesn't know which Mkhize is referred to here. That would be speculation on your behalf because you don't know which Mkhize was being referred to in this alleged statement made by your brother.

MR ZULU: That's correct.

MR MALAN: Sorry, I just want to get clarity from the interpretation. Did you say Mkhize was your brother?

MR ZULU: Yes, Mkhize is my brother.

MR MALAN: Was one of his children also killed in the attack, or wounded in the attack?

MR ZULU: Do you refer to the attack that we launched?

MR MALAN: Yes.

MR ZULU: Yes, I heard that some of his children had been injured.

MR MALAN: Were you - was Mkhize, your brother, was he an ANC supporter?

MR ZULU: No, he was an IFP supporter.

MR MALAN: Did you - was he with Makeke at stages?

MR ZULU: No, they did not used to travel together.

MR MALAN: Was he active in IFP, your brother Mkhize?

MR ZULU: Although he was not an active member of the IFP, he did so because there were people who pressurised him and he was afraid for his life.

MR MALAN: May I, just while I'm asking questions, ask you, the place that you resided in the mountain, did your family go there with you?

MR ZULU: No, my family did not reside there.

MR MALAN: Did your brothers reside with you there?

MR ZULU: They used to stay at a certain area, eSnatengi.

MR MALAN: Sorry, I didn't get that?

INTERPRETER: eSnatengi.

MR MALAN: Were they not with you in the mountain that night when the attack was planned?

MR ZULU: No.

MR MALAN: Did they have any knowledge of the attack?

MR ZULU: No, they did not know, they just heard about it thereafter.

MR MALAN: Who told them and when?

MR ZULU: They heard about it on the radio that the children had been injured.

MR SARDIWALLA: Sorry Chairperson, I think the answer is quite different to the question asked. Can the member of the Committee please re-ask that question for clarity purposes?

MR MALAN: I did not get a different answer to what I was expecting, so I wasn't surprised. Maybe you can lead me, I'm not sure what you are referring to.

MR SARDIWALLA: I think the question put to him is where did they get to know about the incident.

MR MALAN: He said they heard on the radio.

MR SARDIWALLA: They heard on the radio. Sorry I thought he said we heard on the radio. Sorry I didn't get that clear.

MR MALAN: Who told you that they heard on the radio?

INTERPRETER: The speaker's mike is not on.

MR MALAN: Sorry, who told you that they heard on the radio?

MR ZULU: I heard from Tulane who used to drive a taxi.

MR MALAN: When did he tell you?

MR ZULU: In the morning.

MR MALAN: Did you then inform him?

MR ZULU: No, we did not inform him, he just deduced it for himself.

MR MALAN: How did he manage to deduce it for himself?

MR ZULU: I would say because he knew that we resided up there in the mountains to protect ANC members.

MR MALAN: But the killing didn't take place where you resided. The killing took place at some other venue, is it not?

MR ZULU: Yes, it happened at a different place.

MR MALAN: That's right. Now how did he deduce for himself that you were involved?

MR ZULU: He realised it because he was an ANC supporter and he knew the normal practice of how we did things.

MR MALAN: I'm not sure that I understand that but thank you.

ADV DE JAGER: That wasn't the normal thing for the ANC to kill school children.

MR SARDIWALLA: Chairperson, I must object to that question because I didn't think he said, he hasn't reach that stage where he said he specifically had the intention or went there to kill school children.

ADV DE JAGER: No, but he said they heard on the radio and then it was known that it was school children that's been killed and he made the deduction that his brother would know he is involved because that was what the ANC was doing and I'm only putting it to him that that was not the ANC's method of doing things.

CHAIRPERSON: Shouldn't you still object?

MR SARDIWALLA: Yes.

CHAIRPERSON: Because there is no evidence led before us that it was not the police of the ANC to kill children belonging to the IFP.

MR SARDIWALLA: Yes, of course that is very, very clear. If that is what the Committee Member is suggesting, then obviously I must then vigorously object to that question.

MR MALAN: I'm not sure, you need to clarify it for me now. You said, and that's in your supplementary affidavit paragraph 7 and then paragraph 8, that the following day you heard on the radio that there were children in the vehicle and that 6 of them were fatally shot and 15 injured in the ambush. You're aware of that statement that you made?

MR ZULU: Yes.

MR MALAN: Did you hear that on the radio while travelling with your brother in the taxi, driving the taxi?

MR ZULU: No, I was at the house by that time.

MR MALAN: You heard it at the house?

MR ZULU: Yes.

MR SARDIWALLA: Chairperson, sorry Chairperson, you know this approach of putting facts that haven't been led, I think really Committee Members must refrain from. There's evidence led. If a question is being asked, with respect Chairperson, I think the question must be asked rather than putting evidence to the applicant.

CHAIRPERSON: I think he's ...(indistinct) he heard from Tulane that he had heard about the attack, the precise nature of which has not been canvassed on the radio and we'll give the ropes to you to canvass that. Thank you.

MR SARDIWALLA: Thank you Chairperson. Okay. So you heard the following day , you say on the radio, that 6 children were killed and 15 were injured in an ambush. Firstly, where did you hear this? Where were you when you heard this?

MR ZULU: I was in Edendale when I heard this.

MR SARDIWALLA: Who were you with?

MR ZULU: It was myself, Saul, Sishe and Khumbu.

MR SARDIWALLA: So those of you that actually executed this particular directive were together when you heard this on the radio?

MR ZULU: Yes, we were together.

CHAIRPERSON: I was distracted for a second and so I have not really taken note of your earlier question. If you can burden the record by repeating yourself again?

MR SARDIWALLA: I'll repeat them for the record, Chairperson.

You say you heard on the following day that there were 6 children that were fatally shot and 15 injured. Where were you when you heard this?

MR ZULU: I was in Edendale when I heard that.

MR SARDIWALLA: And who were you with when you heard this?

MR ZULU: I was with Saul, Sishe and Khumbu.

MR SARDIWALLA: And was this the first time that you heard about this or did you hear about this, the effects of your ambush, prior to the radio announcement?

MR ZULU: It was the first time that I heard.

MR SARDIWALLA: And what was your reaction when you heard about this?

MR ZULU: My heart bled when I heard that innocent children had been killed, including those of my brother.

MR SARDIWALLA: You say your step-brother Bernard Mkhize's children were also killed?

MR ZULU: Yes, they were killed.

MR SARDIWALLA: And you say you were hurt when you heard this? Why? Why were you hurt? You were in an ambush and you had intention to ambush a vehicle, what affected you?

MR ZULU: I was hurt because the person that we had targeted had not been found. It was unfortunate that children, who were not the target, were the ones who were harmed.

MR SARDIWALLA: Did you ever suspect that there were children in that vehicle, or did you see children in that vehicle, prior to your shooting?

MR ZULU: We did not see the children.

MR SARDIWALLA: And if you did?

MR ZULU: We would have not shot at them had we seen them.

MR SARDIWALLA: Was it at any stage a directive for you to go and shoot children or Makeke?

MR MALAN: I think the evidence was that there was no such directive in any event. They volunteered, they decided to go.

CHAIRPERSON: Maybe you want to speak of policy or practice. You can rephrase your question.

MR SARDIWALLA: Thank you, Chairperson, I'll rephrase it.

Was it ever the policy of the organisation that you belonged to, the ANC, to specifically target and attack children?

MR ZULU: No, it was not the policy of the ANC to kill children.

CHAIRPERSON: May I interpose, Mr Sardiwalla? In the nature of the attacks that occurred in your area, launched by the IFP on your members, were children not attacked?

MR ZULU: I never came across such a child being murdered by the IFP.

CHAIRPERSON: And, was there never an occasion when members of your organisation attacked children of IFP members?

MR ZULU: It never happened that my members attacked children.

CHAIRPERSON: So you had a clear understanding that, when you launched attacks, you were never to direct such attacks on children of your opponents?

MR ZULU: Yes, we knew that.

CHAIRPERSON: Thank you Mr Sardiwalla, you may proceed.

MR SARDIWALLA: Thank you, Chairperson. So, you had absolutely no knowledge, neither did you suspect that there would be children in that vehicle?

MR ZULU: Yes, I did not know.

MR SARDIWALLA: Did you believe that Makeke would be in that vehicle?

MR ZULU: Yes, I had that belief.

MR SARDIWALLA: And your intention was to actually destroy Makeke?

MR ZULU: Yes.

MR SARDIWALLA: Did you do this clearly to further the

aspirations of your organisation and the struggle that you were involved in, or did you do it out of your own free whims and fancies?

MR ZULU: I did it following the policy of the organisation, to protect my organisation.

MR SARDIWALLA: Chairperson, that is our evidence.

NO FURTHER QUESTIONS BY MR SARDIWALLA

CHAIRPERSON: Thank you Mr Sardiwalla.

Ms Thabethe, do you have any questions to pose?

MS THABETHE: Yes, Madam Chair, I do. Thank you.

CROSS-EXAMINATION BY MS THABETHE: Mr Zulu, when the attacking question on the 2nd of March 1993 occurred, where were you staying?

MR ZULU: I was staying at my sister's house.

MS THABETHE: When I say where, which area were you staying?

MR ZULU: At eNkanyezini.

MS THABETHE: Is that part of Maqonqo, or let me ask it this way, was it part of Maqonqo or was it outside Maqonqo?

MR ZULU: It is close to Maqonqo.

MS THABETHE: How close would you say this place is from Maqonqo in terms of kilometres?

MR ZULU: It was just a fence separating the two areas.

MS THABETHE: Would it be correct for me to say Maqonqo was a big area at kwaMapumolo wherein there were different villages within Maqonqo.

MR ZULU: Yes.

MS THABETHE: And one of these places was a place called Mboyi.

MR ZULU: Yes.

MS THABETHE: Did your family or maybe to be more precise, did your father and your brothers stay at Mboyi?

MR ZULU: Yes.

MS THABETHE: And would I be correct if I say that Mboyi was plus minus 5 kilometres from Maqonqo?

MR ZULU: Yes, I would agree with you.

MS THABETHE: Now, in your affidavit you have indicated that Mr Gcabashe, Chief Sabelo Gcabashe was Induna at Maqonqo.

CHAIRPERSON: Won't you refer us to the page and the exact paragraph?

MS THABETHE: I will do that just now Madam Chair.

CHAIRPERSON: That's page 3, paragraph 6.7.

MS THABETHE: Thank you, Madam Chair, I am indebted to you.

Mr Zulu you say in paragraph 6.7, it's page 3 of your affidavit, that Chief Sabelo Gcabashe was an IFP leader in the area.

MR ZULU: Yes.

MS THABETHE: Isn't it correct that he was actually an IFP leader at Maqonqo and not at Mboyi?

MR ZULU: That is one area, that is Mboyi and Maqonqo.

MS THABETHE: Why I am asking you this question, it's because my instructions are that Chief Sabelo Gcabashe was a leader at Maqonqo and at Mboyi there was another leader there. If the Committee could bear with me, I am looking for his name here in my notes.

CHAIRPERSON: Are you saying, Ms Thabethe, that Chief Gcabashe was a leader, an IFP leader at Maqonqo and that there was another IFP leader at Mboyi?

MS THABETHE: Yes, Madam Chair, that's the evidence I'm trying to ascertain. Did you know about this?

MR ZULU: No, I only knew of Sabelo.

MS THABETHE: Madam Chair, if you can allow me just to get the name of the leader, please. Thanks. Thank you, Madam Chair. Did you know that Mr Bernard Mkhize was the leader at the Mboyi area?

MR ZULU: I did not know it.

MS THABETHE: Would you dispute this fact?

MR ZULU: I would dispute it because that was something I did not know.

CHAIRPERSON: How can you dispute something that you don't know?

MR ZULU: I dispute it because I was around there but I never heard that he was an IFP leader.

CHAIRPERSON: Is this Bernard Mkhize the same person as you have referred to as your brother?

MR ZULU: Yes.

CHAIRPERSON: If he was an IFP leader, as opposed to being an IFP member, you would have known as his relative, would you not?

MR ZULU: Yes, I would have known.

CHAIRPERSON: So it should be something that would be within your personal knowledge, whether he was a leader at Mboyi, or if he wasn't.

MR ZULU: Yes, I would have known if he was a leader.

CHAIRPERSON: And he was not, to your knowledge, a leader of the IFP at Mboyi?

MR ZULU: Yes, as far as I know.

CHAIRPERSON: Did you ever stay at Mboyi?

MR ZULU: Yes.

CHAIRPERSON: When did you stay at Mboyi? Which year?

MR ZULU: From my childhood until 1992.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you, Madam Chair.

CHAIRPERSON: Do you have information as to when Mr Mkhize, Bernard Mkhize, became an IFP leader at Mboyi?

MS THABETHE: Not with me Madam Chair, but I can get that information because Mr Mkhize is present today, if the Committee can allow me quickly to get that information. Thank you Madam Chair. My instructions from Mr Mkhize is that he was a leader as from 1990 whilst the applicant was still residing at Mboyi.

Mr Zulu, Mr Mkhize has actually indicated that he was a leader of the IFP at Mboyi from 1990 and you were still residing there during 1990, so do you still maintain that he was not a leader of the IFP?

MR ZULU: Yes, I still maintain that I did not know that he was an IFP leader.

MS THABETHE: Is it also correct that Maqonqo was an IFP area, or the people living there were IFP?

MR ZULU: Yes, at that time it was inhabited by the IFP because ANC members had left the area.

MS THABETHE: Which area did ANC members stay in?

MR ZULU: ANC members fled to Edendale. They returned when they wanted to claim their houses and property and then they went to reside at eNkanyezini.

MS THABETHE: When did this happen would you say? During which period, when the ANC members fled to Edendale?

MR ZULU: Around 1988.

MS THABETHE: You see, I am trying to ascertain, because in your affidavit at page 4 paragraph 6.9 you state that the members of IFP attacked the kraals of the ANC members in the area and my instructions are that there were no ANC members in the area and further my instructions are that there was no area which could be called an ANC area. So, can you explain paragraph 6.9 to me?

CHAIRPERSON: Are you reading that paragraph in conjunction with paragraph 6.2 which specifically tells you which area he is talking of at Maqonqo?

MS THABETHE: Can I have your question again, Madam Chair?

CHAIRPERSON: I'm saying, are you reading the paragraph that you have referred him to in conjunction with paragraph 6.2?

MS THABETHE: Yes, Madam Chair.

CHAIRPERSON: This area seems to be Table Mountain which is within Maqonqo.

MS THABETHE: Yes, Madam Chair. I am not sure if I understand you.

CHAIRPERSON: I'm saying, are you aware that what he is saying is that his area was Table Mountain in Maqonqo?

MS THABETHE: Which area would he be talking about Madam Chair?

CHAIRPERSON: Table Mountain according to his affidavit. Maqonqo had different areas and his area was called Table Mountain. I'm a little confused because there is reference now to Mboyi and eNkanyesini and I'm a little lost as to which area. That's why I want to know which area you are talking about.

MS THABETHE: Sure, Madam Chair. Maybe before I ask that, can you clarify, Mr Zulu, when you talk about Table Mountain, exactly which area is this in Maqonqo? Does it form part of Maqonqo?

MR ZULU: Maqonqo is part of Table Mountain, it's within Table Mountain.

CHAIRPERSON: Where exactly were you staying? What was the name of your area?

MR ZULU: I was staying at Mboyi but that area is within Maqonqo.

CHAIRPERSON: Now, what area was being attacked by IFP people that you had to protect and launch retaliatory attacks?

MR ZULU: There were ANC and IFP members in Maqonqo.

CHAIRPERSON: Which area, which particular area, were you protecting which had been attacked on the 26th February by the IFP?

MR ZULU: It was an area called eZinembini and Dabe.

CHAIRPERSON: Called what? Come again Ms translator.

MR ZULU: eZinembeni and Dabe.

CHAIRPERSON: Won't you spell that for us?

INTERPRETER: E - Z - I - N - E - M - B - E - N - I and D - A - B - E

CHAIRPERSON: Now the IFP attacked two areas within Maqonqo on the 26th.

MR ZULU: They attacked Dabe on the 26th.

CHAIRPERSON: Yes, and those were the kraals that you've referred to as being those belonging to ANC members in your area?

MR ZULU: Yes.

CHAIRPERSON: Were you staying at Dabe?

MR ZULU: I was at that time.

CHAIRPERSON: Now when you referred to "my area" as you have sought to during your viva voce and also your testimony that we have by way of an affidavit, are you referring to Dabe?

MR ZULU: As I explained before, there were different districts within one area.

CHAIRPERSON: Yes, but which district are you referring to or which area are you referring to, in relation to the attacks that were launched against your members?

MR ZULU: I was residing at Dabe on the 26th.

CHAIRPERSON: Proceed, Ms Thabethe.

MS THABETHE: Thank you, Madam Chair. Mr Zulu, you say in February 1993 you were residing at Dabe, is that your evidence?

MR ZULU: Yes.

MS THABETHE: When did you move to Dabe, to stay at eNkanyezini?

MR ZULU: I left Dabe because our houses had been burned down. We then crossed over to eNkanyezini.

MS THABETHE: When?

MR ZULU: After the 26th we lived at eNkanyezini.

MS THABETHE: Is Dabe part of Maqonqo?

MR ZULU: Yes.

MS THABETHE: You see what I'm trying to understand, Mr Zulu, is that I asked you earlier on that isn't it correct that the whole of Maqonqo was an IFP area and you said "yes, that's correct" and I asked you that isn't it correct that there was no ANC area at Maqonqo and you agreed with me that that was so. You even explained further that the ANC people had moved to Edendale. Now I don't understand what you are talking about in your affidavit when you say the IFP members attacked you at Maqonqo in an ANC area when there were ...(intervention)

MR MALAN: No, sorry, he didn't say in an ANC area, he said ANC members in the area.

MS THABETHE: Thank you Honourable Member of the Committee. I will just rephrase my question then before I advance my predicament. How were you identified as ANC members at Maqonqo?

MR ZULU: We resided together separate from the IFP people, who also resided together.

MS THABETHE: So are you saying as ANC people you were residing together in an area and that's how you were identified?

MR ZULU: There was a misunderstanding which caused that split that ANC people went their own way and IFP people also went a different way.

CHAIRPERSON: Your evidence, Mr Zulu, is that the ANC members had in any case fled Maqonqo to Edendale as early as 1988.

MR ZULU: Yes, they did flee but returned.

CHAIRPERSON: Now you did not give us that evidence and that is the difficulty that Ms Thabethe has been presented with because you did not state that some returned at Maqonqo and if they did, when did they return?

MR SARDIWALLA: Chairperson, I must just correct that. My notes state that he did in fact say that ANC members were staying at Edendale. They then returned and wanted to claim their houses and land. He did say that earlier in the evidence, I've got that noted.

MR MALAN: He said houses and property, it wasn't necessarily land. I didn't read that, because he said that then they went to stay to eNkanyezeni.

CHAIRPERSON: So when did the majority of ANC members return to Maqonqo?

MR ZULU: Around 1992.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you, Madam Chair. I put it to you Mr Zulu, that Maqonqo was an IFP area and further, that there were no ANC people, no ANC area at Maqonqo. Sorry, not that there were no ANC people, there were no known ANC people at Maqonqo. What is your response to that?

MR ZULU: There were known ANC members at Maqonqo.

CHAIRPERSON: Were you known to be an ANC member?

MR ZULU: Yes.

CHAIRPERSON: And it is your evidence that you have always been an ANC member? You never belonged to the IFP?

MR ZULU: Yes.

MS THABETHE: I further put it to you, Mr Zulu, that as a result of the fact that there were no known ANC members in the area and there wasn't an ANC area at Maqonqo, the IFP never attacked the kraals of ANC members in the area, as you have stated at paragraph 6.9. What is your response to that?

MR ZULU: I would say yes, they should be saying so because the ANC had fled from the area.

CHAIRPERSON: But is it not your evidence that they returned, quite a number of them returned around 1992?

MR ZULU: Yes, I'm saying that is why they say so, because the ANC fled but returned, but they did not have a specific area that they called their own. They resided in that area assuming that they were the IFP and that was their area.

CHAIRPERSON: Are you saying they also assumed that you were an IFP member?

MR ZULU: No, I would not say so. I would say no because they would not be able - they did not see me, just like members of the ANC who were residing in the same area but they did not see.

CHAIRPERSON: So you are actually saying ANC members were not visible in Maqonqo?

MR ZULU: They were not visible for the fact that they had fled before and on their return they had returned to ANC people who had remained in the area and those who had remained behind, the ANC who had remained behind, had done so in the pretence that they were not members of the ANC.

CHAIRPERSON: My question is, are you suggesting that post 1992, when a majority of ANC people came back, returned, claimed their property and houses, they were not visible as ANC members?

MR ZULU: Yes, they did not display that they were ANC members and even where we were residing, we were not staying with IFP members, we were staying on our own, and IFP members were staying separate from us.

CHAIRPERSON: Thank you. Ms Thabethe.

MS THABETHE: Thank you, Madam Chair. I also put it to you Mr Zulu that you were not a known member of the ANC at Maqonqo because the area is IFP and also because your family at Mboyi was IFP, so they also took it that you are also IFP. What is your response to that?

MR ZULU: Yes, my family belongs to the IFP but I did not join the IFP, I joined the ANC.

MS THABETHE: Mr Zulu at paragraph 6.6 ...(intervention)

MR MALAN: Sorry, may I just make sure of the answer here - are you saying your family knew that you were ANC or did they not know that you were ANC?

MR ZULU: My family knew.

CHAIRPERSON: That you were ANC?

MR ZULU: Yes.

CHAIRPERSON: But Mkhize knew that you were an ANC person?

MR ZULU: No, he did not know.

CHAIRPERSON: When you say your family knew, who are you referring to?

MR ZULU: My parents as well as my siblings.

CHAIRPERSON: Were your parents ANC members?

MR ZULU: They were IFP members.

CHAIRPERSON: Were your brothers and sisters ANC members?

MR ZULU: My sisters became ANC members and they also had to leave the area.

MS THABETHE: Thank you, Madam Chair. I won't take this issue any further, I'll argue it during my argument.

CHAIRPERSON: I think sufficient ground has been laid for any kind of argument you may wish to present.

MS THABETHE: Thank you, Madam Chair.

Mr Zulu I was still directing you to paragraph 6.6 of your affidavit at page 3 where you say,

"Numerous members of my organisation and family were killed as a result of the attacks and counter attacks between our organisation and the IFP."

My first question to you is, which members of your family are you referring to, in terms of the political organisations?

MR ZULU: I am not referring to the immediate family that you reside or stay with in one house. There are other members of the extended family, who may be residing at another place.

MS THABETHE: So which members of your family were you referring to?

MR ZULU: It was Geoffrey Zulu.

MS THABETHE: Who else?

MR ZULU: And Tommy.

MS THABETHE: What's his surname?

MR ZULU: Zulu.

MS THABETHE: Who else?

MR ZULU: And Sepo.

MS THABETHE: Is that all?

MR ZULU: And Bongane.

CHAIRPERSON: From - which area did they reside?

MR ZULU: At Maqonqo.

CHAIRPERSON: And when were they killed?

MR ZULU: Around 1988, 1989.

CHAIRPERSON: Would that be prior to the fleeing of ANC members in Maqonqo to Edendale?

MR ZULU: Yes.

MS THABETHE: Thank you, Madam Chair.

MR MALAN: Were they, these members of your family, were they ANC or Inkatha supporters?

MR ZULU: They were ANC supporters.

MR MALAN: And the relation of these people, how were they family to you? Geoffrey?

MR ZULU: He was a relative in the sense that they were related to my father, he may have been a brother to my father.

MR MALAN: And Tommy?

MR ZULU: They were all related in the same way to me.

MR MALAN: These are not all brothers of your father, are they all your uncles, is that what you're telling us now? How were they family?

MR ZULU: Their fathers were my father's brothers.

MR MALAN: So they were cousins. Thank you.

MS THABETHE: Where about in Maqonqo were they staying? In which village?

MR ZULU: At eZinembini.

CHAIRPERSON: Does it really matter, Ms Thabethe, because this happened prior to the departure of ANC members in Maqonqo to Edendale? So the killing happened post 1988, I mean prior to 1988 and we already have evidence that in 1988 the ANC members left Maqonqo during the height of the political violence to Edendale.

MS THABETHE: Madam Chair, it's important in the sense that my instructions are that this was an IFP area and any ANC people maybe might have fled but they were not known in the area and what he is saying is that these people were killed inside the area during the counter attacks between IFP and ANC.

CHAIRPERSON: But I thought, when I was questioning him he indicated, his evidence suggested that the killing took place prior to the departure of ANC members from Maqonqo to Edendale and that the people returned around 1990 to Maqonqo. Maybe you should find out if any persons were killed, any members of his family were killed after the return of these ANC members from Edendale to Maqonqo.

MS THABETHE: Madam Chair, I don't know whether I am understanding the applicant correctly. He is saying these people were killed in 1989, right?

CHAIRPERSON: Well, he later corrected himself and he said they were killed before the departure of ANC members from Maqonqo to Edendale, which happened in 1988.

MS THABETHE: Yes, Madam Chair.

CHAIRPERSON: Unless you want to canvass that issue so that you get clarity.

MS THABETHE: Yes, Madam Chair. My difficulty still is that according to my instructions this was entirely an IFP area and there were no counter attacks between ANC and IFP.

...(indistinct - mike not on)

MS THABETHE: Yes.

...(indistinct - mike not on)

MS THABETHE: Yes.

CHAIRPERSON: You may proceed then Ms Thabethe.

MS THABETHE: Thank you, Madam Chair.

MS THABETHE: Mr Zulu, when did the conflict or the counter attacks, as you put it, between IFP and the ANC at Maqonqo begin?

MR ZULU: In 1987.

MS THABETHE: I'll have to take instructions with regard to that Madam Chair.

CHAIRPERSON: Yes. May I just get clarity on this particular aspect of your evidence? Is it your evidence that by 1988 the conflict at Maqonqo had reached such levels that the ANC members were forced to leave the area and stay in Edendale? Is that your evidence?

MR ZULU: Yes.

CHAIRPERSON: And that the members of your family that you've alluded to in terms of paragraph 6.6 were killed in 1988, that is prior to the departure of the ANC members from Maqonqo to Edendale?

MR ZULU: Yes, my family members were killed in 1988.

CHAIRPERSON: Yes, and that would not be 1989, because you say that happened before ANC members left Maqonqo to stay in Edendale. We are waiting for your response, Mr Zulu. In your earlier evidence you had indicated that members of your family were killed either in 1988 or 1989. Do you recall saying that?

MR ZULU: Yes.

CHAIRPERSON: Then I questioned you whether they were killed prior to the departure of ANC members from Maqonqo to Edendale and you said yes.

MR ZULU: Yes.

CHAIRPERSON: And it is your evidence that ANC members were forced to leave the area of Maqonqo for Edendale in 1988.

MR ZULU: Yes, that's what I've said.

CHAIRPERSON: Now if you are saying that and you agree with that aspect of your evidence, then there is a conflict between what you are saying with what you are again saying about the time period because if these members were killed prior to the departure of ANC member from Maqonqo to Edendale, which we know to have happened in 1988, they therefore couldn't have been killed in 1989.

MR ZULU: Yes.

CHAIRPERSON: Do you therefore agree that you have made a mistake that these members were killed in 1988, because you say they were killed prior to the departure of people from Maqonqo?

MR ZULU: Yes, I do agree.

MS THABETHE: Madam Chair I'll proceed to other aspects and then I'll get the instructions.

CHAIRPERSON: Yes. Whilst we are on that point, Ms Thabethe, maybe this is the convenient time to adjourn for lunch and reconvene at 1.30.

MS THABETHE: As the Committee pleases.

CHAIRPERSON: Thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

AARON ZIBUSE ZULU: (s.u.o.)

CHAIRPERSON: You may proceed with your cross-examination.

MS THABETHE: Thank you, Madam Chair.

CROSS-EXAMINATION BY MS THABETHE: (cont.)

Madam Chair, I would like to indicate that I did receive instructions with regard to what was happening at that time from 1989, 1988 onwards but by the time I consulted, Mr Zulu the father of the applicant, was not longer at the venue, so I couldn't consult with regard to the people who were killed from the family. But I have told somebody that I would like to consult with him with regard to that, but I would like to proceed on other aspects.

CHAIRPERSON: You will just give us an indication when it is an appropriate time for you to take those instructions.

MS THABETHE: I will do that, Madam Chair.

Mr Zulu, you have indicated in your evidence that your intention when you committed the act on the 2nd of March 1993 ...(intervention).

CHAIRPERSON: May I interrupt? Is there something wrong with the machine? Is it deliberate that the Zulu translation must come out?

SOUND TECHNICIAN: ...(indistinct) there are too many people in the audience for us to furnish them all with receivers. If it's bothering you, then I must turn it down.

CHAIRPERSON: I think we'll keep up with it, we just thought it was strange, we are not used to that.

CHAIRPERSON: Sorry, Ms Thabethe, you may proceed.

MS THABETHE: Thank you, Madam Chair. Mr Zulu, in your evidence you have stated that your intention, when you committed the act on the 2nd of March 1993, was to attack Makeke. My question to you, why did you want to attack Makeke?

MR ZULU: We wanted to attack Makeke because he was the person who was attacking us, killing us. He was the person who was brave.

MS THABETHE: Where was he killing you?

MR ZULU: He was killing ANC members.

MS THABETHE: Where were members of the ANC?

MR ZULU: ANC members from Maqonqo.

MS THABETHE: Now my next question to you is, my instructions are that Makeke did not own a cream-white van. He had other cars, but not a cream-white van. What is your response to that?

MR ZULU: Yes, he didn't own a cream-white bakkie, but he was driving another cream-white bakkie, not the one that was his own.

CHAIRPERSON: He was driving, but not owning, a cream-white bakkie?

MR ZULU: Yes.

CHAIRPERSON: In what capacity would he drive something like a cream-white bakkie which he didn't own?

MR ZULU: He was driving it because the owner was also an IFP member or they belonged in one organisation.

CHAIRPERSON: So this was not his car?

MR ZULU: No, it wasn't his car.

CHAIRPERSON: And you knew that?

MR ZULU: Yes, we knew that.

MR MALAN: Sorry did you - was your answer to Ms Thabethe's question that he was also driving a cream-white bakkie, another one? You said he was driving one.

MR ZULU: Yes.

MR MALAN: Is that another cream-white bakkie?

MR ZULU: No, there was a cream-white bakkie which didn't belong to him and he owned a white bakkie.

CHAIRPERSON: But the way I understand your evidence is to the effect that the cream-white bakkie that you knew him to be driving, you knew that it wasn't his own bakkie, that it belonged to somebody else who worked with him. This cream-white bakkie would be driven by him from time to time on loan from this friend of his.

MR ZULU: Yes.

ADV DE JAGER: The vehicle that you shot at, who was the owner of that vehicle?

MR ZULU: I don't know the owner because they just came to the area, or they just moved to the area.

ADV DE JAGER: You wouldn't know whether it belonged to Mr Mhlembe?

MR ZULU: No, I wouldn't know.

ADV DE JAGER: And wasn't this vehicle driven by Mr Tulane Zimu?

MR ZULU: No.

ADV DE JAGER: Who used to drive the vehicle that you shot at?

MR ZULU: Makeke and the owner.

ADV DE JAGER: And the owner was who?

MR ZULU: The owner is the one that I said I don't know his name because he just moved to the area.

ADV DE JAGER: And this Mr Makeke, you don't know his full names, or more names of him?

MR ZULU: No, I only know him as Makeke.

CHAIRPERSON: Can I just clear something with you? You have just given evidence that Makeke did not own a cream-white bakkie, that that one was owned by a person that he worked with who had just moved into your area and whose name therefore you do not know but that Makeke did own a white bakkie. Did I hear you properly when you said that?

MR ZULU: Yes.

CHAIRPERSON: So you knew him to be owning a white bakkie?

MR ZULU: Yes.

CHAIRPERSON: Now the bakkie that attacked the members of the ANC in your area on the 26th of February, what colour was it?

MR ZULU: It was a cream-white bakkie with a white canopy. CHAIRPERSON: Why was it then associated with Makeke, when you knew quite well that Makeke owned a white bakkie and not a cream-white bakkie?

MR ZULU: It is because we used to see Makeke driving the very same bakkie.

CHAIRPERSON: Yes, I'm aware that he used to drive that bakkie, but why did you associate the presence of the car on that attack of the 26th of February with Makeke, because even though he used to drive the car, it wasn't his car, it was owned by somebody else and those facts were facts which were within your personal knowledge.

MR ZULU: We attacked because we saw him bringing people and we also heard that he was driving that car.

CHAIRPERSON: So you heard that on the day of the attack, when the cream-white bakkie was seen, it was seen being driven by Makeke?

MR ZULU: Yes.

CHAIRPERSON: Who told you that?

MR ZULU: Tula Cele Gcabashe.

CHAIRPERSON: So you did not personally see Makeke driving the car on the 26th of February?

MR ZULU: When they attacked I didn't see Makeke driving it, but I used to see Makeke driving it on other days.

MS THABETHE: You may proceed, Ms Thabethe.

MS THABETHE: Thank you, Madam Chair.

Mr Zulu, is the car that Makeke drove, that you saw him driving, the same one you attacked on the 2nd of March?

MR ZULU: Yes, it is the same one.

MS THABETHE: What type of a car was it?

MR ZULU: I don't remember very well whether it was a Toyota or something else.

MS THABETHE: There was a cream-white van, a Toyota Hilux which used to transport children, school children every day in the morning.

MR ZULU: No, we didn't know the fact that that car was transporting children or school children.

MS THABETHE: My instructions are that you knew very well that there was a car that transported school children every day in the morning.

MR ZULU: That is a very big mistake. We didn't know that and if we knew this information, we were not going to attack children.

CHAIRPERSON: How would he have known that Ms Thabethe?

MS THABETHE: You see, Mr Zulu, in your affidavit you've indicated that you did see a vehicle which regularly gathered people, actually you say the vehicle was regularly seen in the area and the gathering whatever. I don't understand this sentence, but I understand it to be saying that you decided that the said vehicle must be ambushed because you saw it gathering people in the area.

CHAIRPERSON: The vehicle was regularly seen in the area, but he has not been specific as to who saw it.

MS THABETHE: Maybe I should rephrase my question. The vehicle that was regularly seen in the area, did you see it?

MR ZULU: Yes, I saw the car because I knew it.

MS THABETHE: And yet you did not see the car that used to transport school children everyday. Is that your evidence?

MR ZULU: Yes, I've never seen the one that carries children, or that it was transporting children.

CHAIRPERSON: May I just take issue with what you are saying?

Your evidence is that Mr Makeke, who was your main target, owned a white bakkie and your viva voce evidence is to the effect that the car that was seen on the 26th of February was a cream-white bakkie and it had been seen on the scene of the ANC members attack on the 26th of February and that was why you decided to attack the cream-white bakkie. In your affidavit however, that's on page 4, paragraph 6.12, you unequivocally state that you amongst others, you amongst others, identified a white bakkie with a canopy that was seen transporting members of the IFP during the attack of the 26th of February 1993. Now, it wasn't a cream-white bakkie that was identified as a target for attack, it was a white bakkie. Why did you then attack a cream-white bakkie, when you had identified a white bakkie?

MR ZULU: When you go on an attack usually you go by one, two or three cars and you drop those people, the attackers.

CHAIRPERSON: I don't understand. I don't know whether you understood the ambit of my question. My question is, your affidavit, the evidence contained in your affidavit is that it was a white bakkie that was identified by the gathering for attack, yet you proceeded to attack a cream-white bakkie.

MR ZULU: We did so because we knew that the cream-white bakkie was being driven by Makeke.

CHAIRPERSON: But it had not been a cream-white bakkie that had been identified as an object of attack by the meeting, it was a white bakkie.

MR ZULU: Both white and a cream-white.

CHAIRPERSON: Where is a cream-white bakkie being alluded to in your affidavit? Can you have recourse to paragraph 6.12 and see what you yourself have stated in your affidavit? Now you have had an opportunity of going through your own affidavit. Can you now give an explanation why you proceeded to attack a cream-white bakkie when you had identified a white bakkie as an object of attack?

MR ZULU: When someone is writing something there are some mistakes that can transpire there, but the reason we attacked the cream-white bakkie is because Makeke was the driver.

CHAIRPERSON: It is still your evidence that Makeke did own a white bakkie?

MR ZULU: Yes, he owned a white bakkie.

CHAIRPERSON: Proceed, Ms Thabethe.

MS THABETHE: Thank you, Madam Chair. You say Makeke was driving this cream-white bakkie. For what purpose did he used to drive it for?

MR ZULU: I wouldn't say for what purpose. He is the one who knew that.

MS THABETHE: Maybe I should rephrase my question. Did he used to transport people in it or would he drive the bakkie alone?

MR ZULU: Sometimes he would take the attackers to go and attack. Sometimes he would use the car for his own personal reasons.

MS THABETHE: And in your opinion it's the same car that you attacked on the 2nd March 1993?

MR ZULU: Yes.

MS THABETHE: Well, my instructions, Mr Zulu, are that this cream-white bakkie you attacked on the 2nd March 1993 was driven by Pigalitetwa Ngobane and was owned by his father and further, that he used to drive school kids every day and you knew about this. What is your response to that.

CHAIRPERSON: I didn't get the name of the person, Ms Thabethe.

MS THABETHE: Pigalitetwa. Was your answer, did you say you don't know anything about that?

MR ZULU: I would like you to repeat that question for me.

CHAIRPERSON: What Ms Thabethe is saying is that the cream-white bakkie you attacked on that day, was driven by Pigalitetwa Ngobane and was owned by Pigalitetwa's father. Do you have any comments to that?

MR ZULU: I didn't know the owner at that time. I knew the car as being driven by Makeke most of the time.

CHAIRPERSON: But has it not been your evidence that you knew that the car did not belong to Makeke, that Makeke wouldn't drive it all the time. The owner would also drive it. So how would you know that on this occasion that the car would be driven by Makeke?

MR ZULU: We heard before that he was driving the car.

MS THABETHE: I would like you to respond to my next question that I put to you, that my instructions, and I put it to you, that you knew that this car drove everyday taking school children to school at that time when you attacked.

MR ZULU: I didn't know this and I don't think I would have been well if I had attacked children knowing that they were innocent and leave the people whom I knew as not being innocent.

MS THABETHE: When you shot at the cream-white bakkie, did you realise that there were people inside?

MR ZULU: Yes, we saw that there were people inside.

MS THABETHE: But you continued firing the shots, isn't it?

MR ZULU: Yes, we continued.

MS THABETHE: Now if your intention was to shoot at Makeke, why didn't you make sure that the people you were shooting at or the person you wanted to shoot at was Makeke?

MR ZULU: It wasn't easy for us to do that because if the car is approaching towards your direction, you wouldn't tell the identity of the people who are inside the car. As soon as the car approached, we started shooting.

MS THABETHE: How did you know that the van carried other people inside besides the driver?

MR ZULU: We saw them.

MS THABETHE: What did you see? Who did you see?

MR ZULU: We didn't know who they were, but we saw them.

MS THABETHE: What did you see?

MR ZULU: As we were firing at this car and the car stopped and they were screaming when we were shooting and then we ran away.

CHAIRPERSON: May I interpose, Ms Thabethe? You say that as the car approached you saw that there were people inside the vehicle, meaning there was more than one person inside the vehicle?

MR ZULU: Yes, we saw that.

CHAIRPERSON: And in your earlier testimony you say that your stated objective of this attack was directed at Makeke?

MR ZULU: Yes, I did say so.

CHAIRPERSON: Why was there a need then to do an attack on the vehicle knowing that it carried more than one person?

MR ZULU: Because we knew that even the other people who were in the car were IFP members.

CHAIRPERSON: But your stated objective was to attack Makeke and not IFP members and that's why you laid an ambush for Makeke, whom you knew to be driving a particular vehicle.

MR ZULU: Yes.

MR MALAN: May I just on this same line as you, you were under the impression that Makeke would be driving that vehicle?

MR ZULU: Yes.

MR MALAN: And you were told that vehicle travels on that road every morning, that's why you went there?

MR ZULU: No, we were not told that the vehicle drives past there, we went there to wait for the car, even if he appeared at about 12 o'clock or 1 o'clock, we were going to be there waiting for him.

MR MALAN: Then the follow-up question on this is, according to the record of the trial, the driver, Mr Ngobane, managed to escape. Are you aware of that, that he was not killed?

MR ZULU: No, I didn't know.

MR MALAN: You don't know that Mr Ngobane was not killed?

MR ZULU: No, I didn't know that.

MR MALAN: So when you left the scene, were you under the impression that Makeke was the driver?

MR ZULU: Yes, that's what we told ourselves, or that's what we believed.

MR MALAN: Now why did you not kill the driver?

MR ZULU: We told ourselves that we've shot at the driver and we've killed the driver.

MR MALAN: According also to the record of the trial, the documents on post mortem reports, a lot of children were killed and a lot of them seriously injured. You're aware of that?

MR ZULU: Yes, I am aware, I heard about that.

MR MALAN: And that 4 of the children were shot outside of the bakkie, in the road, not in the bakkie.

MR ZULU: No, I don't know anything about that.

MR MALAN: Did you follow your brothers' trial when they were prosecuted?

MR ZULU: No, I never went to court.

MR MALAN: Did you get a report from your brothers?

MR ZULU: No, they didn't give me any report. We were not in the same place and it was difficult for them to get hold of me where I was.

MR MALAN: Did they ever tell you that they had been tried for a crime committed by yourself in which they did not take part?

MR ZULU: I knew that, that they were being sentenced for a crime they didn't commit, a crime that I committed.

MR MALAN: Yes, and you said that they knew that you had committed the crime. I think you said your brother heard it over the radio and he deduced that you were responsible.

MR ZULU: Yes, I did mention that Tulane deduced on his own. Tulane is not my brother.

MR MALAN: Oh, then my apologies there. So your brothers never spoke to you about this incident and their predicament?

MR ZULU: No, we didn't speak to each other. We couldn't see each other.

MR MALAN: According to the evidence also at the trial, evidence was given that some of the attackers moved around the bakkie and shot the kids from the back and from the side there, broke the windows.

MR ZULU: I don't know anything like that. We didn't do that.

MR MALAN: And that the canopy was almost shot like a sieve, if I may paraphrase.

MR ZULU: Yes, the canopy was shot at.

MR MALAN: You say you saw these people, but you never saw that any of them were children?

MR ZULU: Yes.

MR MALAN: You heard them scream, but you never heard that it was children screaming?

MR ZULU: No, I couldn't hear that they were children because I was running away. I couldn't tell whether the scream was from children or adults.

MR MALAN: Thank you, Ms Thabethe.

MS THABETHE: Thank you. In your application on page 2, you state that your brothers, Qeda and Sibusiso were arrested and convicted and sentenced of this offence, but you haven't mentioned them here. Would you explain why you haven't mentioned, it's page 2 number 9.4 of his application, 9(a)(iv). My question is, were they involved in this incident?

MR ZULU: No they didn't, they were not involved. They didn't take any part.

MS THABETHE: Were they ever at the scene of the crime or of the offence?

MR ZULU: No, they were not.

MS THABETHE: You see my instructions from one of the kids who was shot, he claims that he was there and further that he pleaded with him not to shoot him, but he nevertheless shot him. What is your response to that? His name is Bongane Kuala.

MR ZULU: That is a mistake, a very big mistake, because he wasn't even there, he was at eSnatengi.

MS THABETHE: You have also stated that it was not your intention to kill the school children. My question is, if you had known that this cream-white bakkie was carrying school children, would you still have attacked it?

MR ZULU: No, we were not going to attack because we would have known that there were school children.

ADV DE JAGER: But suppose the driver was Makeke?

MR ZULU: If we knew that Makeke was transporting school children we were not going to ambush the car because we would have known that if we attack Makeke, these children were going to be hurt or injured.

ADV DE JAGER: But now you've attacked Mr Ngobane, you didn't attack Makeke.

MR ZULU: That was a mistake that it wasn't Makeke as I've already mentioned that we didn't know.

CHAIRPERSON: With your permission Ms Thabethe, your attention has now been drawn to paragraph 9(iv). I intended to ask questions after Ms Thabethe has concluded her cross-examination, but maybe in the interest of time I might as well just put this question to you. In that paragraph you state quite unequivocally the following, "that a fight broke out between the IFP and the ANC members". Let me pause there and ask you if, was there a fight as alleged in your response to paragraph 9(iv) of your application. Now you will recall that we already have had an application by yourself through your lawyer amending the date or the month that's reflected in that paragraph as February to March and we have done so. So you say on the 2nd of March a fight broke out between the IFP and the ANC. Was there a fight between the ANC and the IFP that broke out on the 2nd of March 1993?

MR ZULU: Not on the 2nd of March. There was a fight on the 26th of February.

CHAIRPERSON: So your evidence as it stands under that paragraph is incorrect?

MR ZULU: I wouldn’t say it's a mistake, or it's incorrect. What I can say is that there was fights between ANC and IFP from the 26th of February.

CHAIRPERSON: I am not talking about the 26th of February, Mr Zulu. I am talking about what you have alleged in your application as the 2nd of March 1993, not the 26th of February. Was there a fight between the ANC and the IFP on the 2nd of March 1993?

MR ZULU: On the 2nd there was not fight. We were waiting, or we were about to launch an attack. We don't even know whether he had a gun or not, we don't even know whether he shot or he didn't.

CHAIRPERSON: Was there a fight between the ANC and the IFP on the 2nd of March 1993? I expect you to say yes or no.

MR ZULU: Yes.

CHAIRPERSON: Who against the IFP attacked you?

MR ZULU: We were the ones who actually attacked them when we went and ambushed them.

CHAIRPERSON: Yes, you went and ambushed Makeke.

MR ZULU: Yes.

CHAIRPERSON: Nobody from the IFP attacked you.

MR ZULU: No, I knew that Makeke was always armed. After we shot we ran away, I don't know if he shot back at us.

CHAIRPERSON: You proceed to say "6 Inkatha members were fatally shot." You proceed to say you do not know their names. How did you know that 6 IFP members were fatally shot?

MR ZULU: I heard from the radio that 6 children were killed and 15 of them were injured.

CHAIRPERSON: Did the radio say these were IFP members?

MR ZULU: The radio said children, they didn't say IFP.

CHAIRPERSON: Is your statement saying 6 children were shot?

MR ZULU: Even though my statement is not saying so because for all I knew there were other adults in that car apart from the children.

CHAIRPERSON: Is your statement saying anything about children having been shot at?

MR ZULU: I don't think that I've mentioned anything about children but what is mentioned on my statement is that IFP members.

CHAIRPERSON: It is incorrect to state that the radio said anything about IFP members having been shot at.

MR ZULU: I wouldn't say it's a mistake because this is what I heard.

CHAIRPERSON: Yes, so you actually gave us incorrect facts.

Can we have your response?

MR ZULU: Yes, it was a mistake. The reason is because I heard that 6 members of IFP were killed. It wasn't so clear that it was 6 children of IFP.

CHAIRPERSON: Ms Thabethe, you may proceed.

MS THABETHE: Thank you, Madam Chair. Mr Zulu, now how is this act of killing school children associated with a political objective?

MR ZULU: Children are not associated with politics. It wasn't our intention and aim to kill children. We wanted to kill the person we wanted to kill.

MS THABETHE: No further questions Madam Chair.

NO FURTHER QUESTIONS BY MS THABETHE

MR MALAN: May I just on this last point, I understand your evidence. I want you to again consider and give me an answer. If the person you wanted to kill who you suspected to be your target, the driver, got away and 6 children died and 9 or 15 others heavily injured, seriously injured, how can you convince us that you were really targeting the driver, if the driver escapes, certainly wounded, but he escapes?

MR ZULU: I would like this Committee to believe what I'm saying because the reason I'm here is because I cannot rest because of what I have done to those children, but it wasn't my aim to aim at children and I wasn't forced by anyone to come before this Commission.

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

MR SARDIWALLA: Chairperson, yes, just one or two points I'd like to clarify.

RE-EXAMINATION BY MR SARDIWALLA: You were involved in this incident in 1993, on the 2nd March 1993, is that correct?

MR ZULU: Yes.

MR SARDIWALLA: You made your statement some three years later as your application to the Amnesty Committee on the 2nd August 1996?

MR ZULU: Yes, that's correct.

MR SARDIWALLA: When making that statement did you apply your mind to the very specific fine details about the conflict and the incident?

MR ZULU: Yes, I did remember some of the things and some I cannot remember so well, but I can remember most of the things or the circumstances surrounding this incident.

MR SARDIWALLA: In your initial statement you referred to, as the Chairperson indicated, to 6 Inkatha members that were fatally shot.

MR ZULU: Yes.

MR SARDIWALLA: You did not go beyond that in explaining that there were in fact children as well.

MR ZULU: This is what I heard. I heard that they were IFP members.

MR SARDIWALLA: Is it correct that when you were asked more details in preparing the supplementary affidavit, that you went into detail relating to the incident itself and the children?

MR ZULU: Yes.

MR MALAN: Mr Sardiwalla, just on your earlier question, when you asked about him not having explained that they were children, he said that he heard that they were IFP members, I think that's what you put to him and I think that was his response, whereas was his evidence not that he heard on the radio that it was children and that he cried immediately when he heard that it was children.

MR SARDIWALLA: I accept that that was his evidence, but I am talking about at the point at which he prepared this statement. The point I am trying to make is that it doesn't appear as though he'd applied his mind thoroughly when he prepared this statement.

MR MALAN: But the answer was "I heard that they were IFP members", that's where you led him to now in re-examination. Can you explain that, or can he explain that?

MR SARDIWALLA: Mr Zulu, can you just explain that aspect that a member of the Committee has raised relating to your recent, your last statement, that they were IFP members?

MR ZULU: Yes, I stated that they were IFP members, because on the radio it was not mentioned that the children who died there were 5 years, or 6 years or 15 years. For instance, one can become a member at the age of 15, of a political organisation.

MR SARDIWALLA: Thank you. Since when have you ...(intervention).

MR MALAN: Just for clarity sake, on page 5 of your supplementary affidavit, paragraph 7, you say "On the following day I heard over the radio that there were children in the vehicle and that 6 of the children were fatally shot and 15 injured in the ambush." You're aware of that statement that you made?

MR ZULU: Yes, I do remember. You consider a 15 year old as a child because that person is still a minor.

MR MALAN: Yes. Now paragraph 8 in your statement, you say you spontaneously felt regret, remorse and cried bitterly thereafter. That was the following morning.

MR ZULU: Yes, I was remorse, because the moment the radio said there were children, then I knew that there were small children, not an older adult.

MR MALAN: Not IFP members, but children.

MR ZULU: I wouldn't deny this and also I wouldn't accept this because I was scared. I would hear some of the things and some I wouldn't hear them.

MR MALAN: Thank you, Mr Sardiwalla.

CHAIRPERSON: Mr Sardiwalla.

MR SARDIWALLA: Thank you. On the question of the vehicle, the cream and the cream-white vehicle. Now you made reference and I think you subsequently indicated that it was the cream-white vehicle that you were targeting. Is that correct?

MR ZULU: Yes, that's correct.

MR SARDIWALLA: Now is it correct that it was the cream-white vehicle that you believed that Makeke used to drive?

MR ZULU: Yes, that's what we believed, that Makeke was the driver.

MR SARDIWALLA: And the vehicle that you had shot at, are you positive that it was in fact a cream-white vehicle with a canopy?

MR ZULU: Yes.

MR SARDIWALLA: And there's no doubt that it wasn't a white vehicle?

MR ZULU: No it wasn't a white bakkie. The canopy was white but the bakkie was cream-white.

MR SARDIWALLA: The aspect of the conflict between the IFP and the ANC. It appears that, and just for clarity purposes, it appears that you indicated that during or about 87, 88 there was conflict. 88, 89 people moved out to Edendale. Did everybody move out or did some people remain? I'm referring now specifically to ANC members.

MR ZULU: ANC members who fled were those who were well-known to the community and those who didn't have much property because the remaining ones didn't want to leave because they didn't know what they were going to do to their property.

MR SARDIWALLA: So were there many that actually remained, but relatively under cover or anonymously, as it were, but ANC members?

MR ZULU: Yes, there were those who remained.

MR SARDIWALLA: And were these members attacked from time to time, or there was no violence at all?

MR ZULU: Yes, they were attacked from time to time.

CHAIRPERSON: Even though it was not known that they were ANC members, they didn't hold themselves out as ANC members?

MR ZULU: They would be attacked and someone will go and tell others to which political organisation I was belonging to and they will come and attack me.

CHAIRPERSON: I thought I understood your evidence to be saying that people did not hold themselves out as ANC members, because they wanted to remain in the area.

MR ZULU: Yes, that's how I put it, but if one doesn't like to eat a certain thing, you cannot be forced to eat something you don't like and you will do that, but eventually you will tell people, but I don't like this, I don't like eating this. It's the same thing if you're sitting among people, you will eventually reveal that I am not for this idea and they will realise that you are not one of them.

CHAIRPERSON: At that stage was there an ANC, in 1988, 1989?

MR ZULU: Yes, there were ANC members.

CHAIRPERSON: Did they call themselves ANC members, or did they belong to a particular organisation that was different from Inkatha?

MR ZULU: There were those who used to say they were IFP members whereas they were not in actual fact, because they were scared.

CHAIRPERSON: You are aware obviously that the ANC did not become an organisation as such until 1990. Do you know to which political organisation people belonged to who were opposed to the IFP as an organisation?

MR ZULU: Yes, even though the ANC was not allowed to be present, there was another organisation which used to call itself...

CHAIRPERSON: Yes, and what was the name of the organisation?

MR ZULU: I'm trying to recall the name, I have forgotten.

CHAIRPERSON: Mr Sardiwalla.

MR SARDIWALLA: Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MR SARDIWALLA

CHAIRPERSON: Thank you Mr Sardiwalla.

ADV DE JAGER: Could you tell us, do you know whether Mr Saul Mkhize, Mr Khumbu Shangase and Mr Sishe Madlala are still alive?

MR ZULU: I wouldn't be sure whether they are still alive or not, it has been a long time since we parted.

ADV DE JAGER: You haven't seen them since when?

MR ZULU: In 1994, that was the last time I saw them.

ADV DE JAGER: Ms Thabethe, they're implicated here. Were they informed, or what's the position? Couldn't they be traced?

MS THABETHE: We tried, Honourable Member of the Committee, to trace them, we couldn't. We even made an announcement on the radio, but we couldn't.

CHAIRPERSON: Thank you, Mr Sardiwalla. Will this be the only witness you intend calling?

MR SARDIWALLA: Yes, Chairperson, this is the only witness I intend calling.

CHAIRPERSON: Mr Zulu, thank you for giving your testimony before this Committee, you may now step down. Ms Thabethe, do you intend to call any witnesses on behalf of the objectors? You had earlier on indicated that you intended to oppose the amnesty of Mr Zulu on behalf of the objectors. If that is still your intention, how many witnesses do you propose calling?

MS THABETHE: Madam Chair, I would propose to call two witnesses, one who will give evidence with relation to the incident itself and one who will give evidence as to the political situation in the area.

CHAIRPERSON: Yes, you may proceed to call your witnesses.

MS THABETHE: Thank you, Madam Chair. I would call Mr Bernard Mkhize.

CHAIRPERSON: Will you give your evidence in English?

Will you assist him, Ms Thabethe, he doesn't seem to be tuning in to the right channel?

MS THABETHE: Can I proceed, Madam Chair? Thank you.

BERNARD MKHIZE: (sworn states)

EXAMINATION BY MS THABETHE: Mr Mkhize, can you please tell the Committee Members whether - which political organisation you belong to?

MR MKHIZE: IFP. I am a chairman of IFP.

MS THABETHE: Can you tell this Committee when did you become the chairman of the IFP and in which area are you a chairman of the IFP?

MR MKHIZE: I became a chairman of the IFP in 1990. Before I was a supporter and then I was elected to be a chairman of the Mboyi branch.

MS THABETHE: Can you explain to the Committee members what the political situation was in the area from let's say 1987?

MR MKHIZE: I will try and explain even though some of the events I wouldn't remember very well because it has been a long time. As from 1989 there were conflicts in the area. It wasn't in the area where I was residing but we were under one chief and I heard that it was between two political organisations but ANC wasn't a prominent organisation in the area. The prominent organisation was IFP. The conflict spread from that area to our area. This was in 1990 when the fights got to the area where I was residing and ANC was defeated and then they fled, I don't know to where.

MS THABETHE: When did the ANC, as you put it, move out of the area at Maqonqo?

MR MKHIZE: I think they left late 1990, but I'm not sure. Maybe it was in 1991 because I remember that I was shot in 1991. I was shot in 1991 and I was admitted in hospital. I stayed in hospital for a month and then after that incident I think the ANC fled.

MS THABETHE: After 1991, which political organisation existed at Maqonqo?

MR MKHIZE: It was Inkatha, Inkatha remained.

MS THABETHE: In or after 1991, was there an area which was occupied by the ANC in the area?

MR MKHIZE: No, there wasn't any area. ANC used to come from outside to come and attack people and kill people and burn their houses.

MS THABETHE: Now you've heard the evidence of the applicant that in 1993 there was an attack by the IFP, it was on the 26th of February 1993, where ANC members were attacked in the area by IFP. Do you have any knowledge, as the chairperson of the IFP at Mboyi, about this incident?

MR MKHIZE: I am not sure about the dates, but I think ANC comrades came to burn down IFP houses in the area.

MS THABETHE: How do you know that the people who had come to burn these areas were ANC?

MR MKHIZE: I knew this because they were swearing at us and they were shooting at people and they entered one house, I think it was Sabia's family, and they were shouting insulting words to us.

CHAIRPERSON: Was this on the 26th February 1993?

MR MKHIZE: No, I am not certain but I think it was in February, I'm not sure of the date.

MS THABETHE: Do you know the applicant, Mr Zulu?

MR MKHIZE: Yes, I do know him. His father is related to my mother.

MS THABETHE: Do you know him when he was staying at Mboyi?

MR MKHIZE: Yes, I do know him.

MS THABETHE: Did you know him to belong to the ANC organisation?

MR MKHIZE: I didn't know his political affiliation but he never used to come to us because he was younger than us and we only realised when they talked that they belonged to another organisation, not IFP.

MS THABETHE: If the Committee can bear with me. In 1993 when the school bus was attacked, was there a conflict or as the applicant put it, attacks between IFP and ANC at the Maqonqo area?

MR MKHIZE: No, there were no longer attacks because ANC was no longer in the area. They used to come and launch their attacks and go back to wherever they were staying.

MS THABETHE: Can you clarify this to the Committee members, because I'm sure - it's not clear what you are saying. Are you saying, because my questions is, was there still ANC/IFP conflict in the area and were there attacks between these two organisations in 1993?

MR MKHIZE: The ANC was no longer in the area, but ANC will come from outside the area and attack people in the area.

CHAIRPERSON: They would come from which areas?

MR MKHIZE: I will say we were staying with them before and after they fled some of them went to eNkanyezini, some of them went to Edendale, then I will say they were coming from these areas and coming to attack us.

MS THABETHE: Did you know the victims, the school kids that were shot in this incident in 1993?

MR MKHIZE: Yes, I know them.

MS THABETHE: Did they belong to any political organisation?

MR MKHIZE: I wouldn't say that they were affiliated with any political organisation because they were still kids.

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

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: Mr Sardiwalla, do you have any questions to put to Mr Mkhize?

MR SARDIWALLA: Thank you Chairperson, yes, I'd like to put certain questions to him.

CROSS-EXAMINATION BY MR SARDIWALLA: Can you go back to 1998,1999.

MS THABETHE: Excuse me, 99?

MR SARDIWALLA: Sorry 89, excuse me. Was there any conflict in the area at the time?

MR MKHIZE: What I can say is that in 1989, as I've already explained, there were conflicts between a certain organisation which I wasn't sure of and in my area, it wasn't in the area where we were residing, but it was in another area, we were all under one chief and this spread to our area.

MR SARDIWALLA: After it spread to your area were there quite a few killings between people at the time?

MR MKHIZE: Yes, there were conflicts and fights and people were killed and the ANC was defeated, then they left.

MR SARDIWALLA: You said the ANC was defeated. You said just now you didn't know what the organisation was.

MR MKHIZE: ANC were the ones who fled.

MR SARDIWALLA: So it was the ANC people that fled. Where did they flee to?

MR MKHIZE: I think they went to different places, I don't think they went to one place, all of them, but they left the area where we were residing.

MR SARDIWALLA: What happened during 1990, 91, did these people come back?

MR MKHIZE: If I can estimate it's that they fled in 1990 or 1991, I am not sure of the date.

MR SARDIWALLA: If I were to put it to you that ...(intervention)

MS THABETHE: Sorry, Madam Chair, I don't think the question was answered. I don't think he understood the question because I understood the question to be saying did they return, and he only told you about their going away, so I think you should give him another opportunity to answer that.

MR SARDIWALLA: During 1990, 1991 did you find that the ANC people that actually went away in 88, 89, did they return to the area?

MR MALAN: Sorry for interrupting on this question. His evidence was that he cannot recall the date, he thinks it was 1990 or maybe even 1991 when they left. He said he thinks it was after he had been shot when he was committed to hospital, so that was his estimate of the time when they left. He did not say that they had left in 88, 89, that was your evidence in your question. But I think the essence of the question is the return, let's not be too finicky about the date, let's get the flow of things.

MR SARDIWALLA: Chairperson, may I now be allowed to continue with my examination?

CHAIRPERSON: You may.

MR SARDIWALLA: Thank you.

Now were you not sure, there is a time that everyone returned, or many people returned to the area, is that correct?

MR MKHIZE: Yes, that's correct.

MR SARDIWALLA: And it was then that the violence escalated again?

MR MKHIZE: Yes, that's correct.

MR SARDIWALLA: And there were many political incidents between the ANC and the IFP at the time. It was common knowledge.

MR MKHIZE: Would you please repeat that for me?

MR SARDIWALLA: Yes. It was common knowledge that there were many incidents of violence between the ANC and the IFP after the return in that area.

MR MKHIZE: I don't understand your question very well because initially you asked me and I told you that they fought and they left the area. The only time they were returning back, it's when they were coming to launch attacks.

CHAIRPERSON: That was not what was put to you. What was put to you was that after some time ANC members returned to your area and pursuant to their return there was an escalation of violence.

MR MKHIZE: The violence was there, was continuously there as I already explained that the violence started in another area closer to ours and it came to our area and then the ANC fled and then the only time they were coming back, it's when they were launching attacks.

CHAIRPERSON: What is being put to you is that after they had fled to different areas, they returned to live in your area and as a result of their return to stay in your midst, there was an escalation of violence. Did that not happen?

MR MKHIZE: No, it never happened. What I know is that there were fights and they fled the place. The only time they were coming back it's when they were coming to launch attacks. They were coming from outside to launch attacks in our areas.

CHAIRPERSON: Is it your evidence that the ANC members never returned to your area to stay there?

MR MKHIZE: No, they never returned.

CHAIRPERSON: You may proceed.

MR SARDIWALLA: Thank you. You see, the applicant has given evidence and you've heard his evidence that they were in the area in the 90's - 91, and there were repeated attacks and they lived in the area but that they were not easily identifiable as ANC members but the violence was there between the IFP and the ANC members living in that area.

MR MKHIZE: No, for all I know is that they left, including himself, he left and he never came back. Those who were inside, who remained inside, he's the one who knows about them because as he said, I cannot easily identify them.

CHAIRPERSON: May I interrupt Mr Sardiwalla? Are you also confirming the fact that the applicant left the area as a result of the conflict, by virtue of him having been an ANC member?

MR MKHIZE: I will say he was a resident in our area and I do agree that he left the area and they also came to burn down the houses from Mboyi, that's where I said I don't know whether it was on the 26th February or when. I'm not talking about the whole area, I'm only talking about Mboyi area. If I can count all these areas and tell you when ANC left those area, then I'll be confused. The only time they came back is when they came to launch these attacks, but they never left and then came back and stayed.

CHAIRPERSON: What I actually wanted to find out from you is that whether you are confirming that the applicant left the area because of political differences or issues.

MR MKHIZE: Yes, he did run away because of political reasons.

CHAIRPERSON: You may proceed, Mr Sardiwalla.

MR SARDIWALLA: Thank you. And he did come back to the area?

MR MKHIZE: No, he didn't. He never came back.

CHAIRPERSON: I think his evidence Mr Sardiwalla, unless there is something else you want out of him, is that he would only return to launch attacks in his area, but he would be coming in from another area. So he was residing in another area, but he would come to the area to launch attacks on IFP members.

MR SARDIWALLA: Yes, Chairperson, I'm aware of that evidence, but I'm taking him to a different point.

CHAIRPERSON: If that is so, you may proceed.

MR SARDIWALLA: You indicated that you know the applicant, he is a relative, but you were not too sure of his political leaning except for the fact that he didn't attend your meetings?

MR MKHIZE: Let me repeat. I thought since he was a resident in our area, I thought that he was an IFP member. The only time I realised that he wasn't is when he left the place and came to launch attacks on IFP members.

CHAIRPERSON: Before, you will remember that you stated that you could tell that he wasn't an IFP member because of what he was saying or the way he was talking.

MR MKHIZE: If you could please repeat that, I don't think I heard that correctly.

CHAIRPERSON: Your earlier evidence is that you later realised that he wasn't and IFP member through his speeches, you recall that? And that is whilst he was still staying in your area?

MR MKHIZE: No, I don't think this is what I said. I said that since he was a resident in our area, I thought that he was an IFP member. The only time I realised, or the only time it became clear is after he left and coming back to launch attacks.

CHAIRPERSON: That's how I understood his earlier evidence. He says that "I knew him when he was staying at", well I can't read the name now, "I didn't know his political affiliation because he never used to come to us, but I only realised when they talked that he belonged to another organisation and not the IFP".

MR MKHIZE: I understand, but I think if I was understood that way, it was a mistake. What I actually meant was that he was still young and he never came to us.

MR SARDIWALLA: You accept that he belonged to another organisation?

MR MKHIZE: Yes, he did show that he was an ANC man, it became clear to me when he came back to launch attacks on IFP.

MR SARDIWALLA: It was also very apparent that in that particular area there was virtual war between IFP and the ANC at the time.

MR MKHIZE: I would like you to repeat that question for me.

MR SARDIWALLA: Yes, during that time it was apparent that there was virtual war between the IFP and the ANC in that area. I'm talking about the Maqonqo area, Table Mountain area.

MR MKHIZE: The problem is if you're talking about Maqonqo, it's another area. What I can talk about is my area not Maqonqo area, because it's another area, Maqonqo area.

CHAIRPERSON: Isn't Mboyi within Maqonqo?

MR MKHIZE: No, Mboyi is just an area under Chief Mapumulo.

CHAIRPERSON: But isn't Maqonqo the bigger are within which Mboyi falls under?

MR MKHIZE: Yes, that's correct.

MR SARDIWALLA: Now will you answer the question that I put to you?

CHAIRPERSON: Do you agree that during those years there was violence at Maqonqo?

MR MKHIZE: Yes, I do.

MR SARDIWALLA: And that there were repeated attacks and counter attacks between the IFP and the ANC particularly during the period 1992,1993?

MR MKHIZE: No, in 1993 it wasn't escalating, but if you're talking about 1990, 1991, 1992 - yes it escalated those years, not 1993.

ADV DE JAGER: Yes, but in 1993 we had this attack by the people coming from outside about a week before the children in the bus were attacked, isn't that so?

MR MKHIZE: I think there was an attack, I only have one difficulty about dates. I'm not sure when, but there was an attack in our area.

CHAIRPERSON: Before you agreed that there was an incident which occurred, you were attacked by ANC members who came from outside the area in February 1993.

MR MKHIZE: Yes.

CHAIRPERSON: You may proceed, Mr Sardiwalla.

MR SARDIWALLA: Thank you. So having acceded and alluded to that, do you accept that the applicant was part of the ANC and part of the attacks that were being launched in that area?

MR MKHIZE: Yes, I do agree.

MR SARDIWALLA: Did the IFP ever attack children of the ANC?

MR MKHIZE: No, it never happened in our area.

MR SARDIWALLA: What - did you know Makeke?

MR MKHIZE: Yes, I do know him.

MR SARDIWALLA: Was Makeke a senior IFP person in the area?

MR MKHIZE: I will say I was the chairman and he was under me.

CHAIRPERSON: When you say he was under you, you mean that sometimes he will act as a chairman?

MR MKHIZE: No, he was just an IFP follower or supporter, he didn't have any position.

MR SARDIWALLA: When you had meetings with the IFP was he normally present?

MR MKHIZE: Yes, he used to be present in IFP meetings.

MR SARDIWALLA: And did he partake in the decision-making process at such meetings?

MR MKHIZE: I wouldn't say yes or no, I think it will be better to address this question to himself, not to me.

CHAIRPERSON: We would like you to explain this to us because you were the Chairperson of the organisation in the area. In your knowledge was he a prominent member in your organisation?

MR MKHIZE: Yes, he was a prominent member.

CHAIRPERSON: If so, as an organisation, if you were taking a decision or if you were making decisions, was he present in those meetings?

MR MKHIZE: No, usually he will listen. There will be others who will come with ideas and who will take decisions, not him.

CHAIRPERSON: If you say he was a prominent member, why so, what was his involvement?

MR MKHIZE: It is easy to identify someone who likes, or who believes in an organisation, not because he held a certain position, but he was for the organisation.

CHAIRPERSON: Mr Sardiwalla.

MR SARDIWALLA: Thank you. Thank you, Chairperson. Evidence has been led by the applicant that there was a confrontation between the ANC and the IFP on the 26th February 1993. Can you - do you agree or do you not agree?

MR MKHIZE: I think in 1993 the attack was when the children were killed and injured. I don't know how to say about attacks but all that I know is that people were coming from outside attacking us in our area.

ADV DE JAGER: I think he's go trouble with the date. I don't think he really has trouble with an event round about that time.

MR SARDIWALLA: So can we accept that shortly prior to this incident when the children were killed, there was a confrontation between the ANC and the IFP members in the area?

MR MKHIZE: Are we still talking about 1993 or are we talking about another year, or are we talking about 1989?

MR SARDIWALLA: You don't seem to recollect dates so I'm moving away from dates. I'm saying shortly before, weeks before, or a week before, or a week or two before this incident when the children died, there was a major confrontation between the IFP members and the ANC members.

MR MKHIZE: I do remember that houses were attacked and burned down in the area.

ADV DE JAGER: And that they insulted Mr Sebia.

MR MKHIZE: Which one, which Sebia?

ADV DE JAGER: You told us they were swearing there and that they entered the house of Mr Sebia, I'm only asking you whether that happened shortly before the children were killed?

MR MKHIZE: Yes, it is the very same incident I was referring to that I identified them as ANC comrades because they were swearing at us.

MR SARDIWALLA: So the situation was very volatile after that incident between the ANC and the IFP?

MR MKHIZE: I will say the situation was bad for us who were inside the area, because the only people who were attacking were the people who came from outside, in other words the ANC were the ones who were coming to attack us.

MR SARDIWALLA: Thank you, Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR SARDIWALLA

CHAIRPERSON: When you were attacked at that time, you didn't take any steps in order to protect yourself?

MR MKHIZE: Yes, we used to protect ourselves, but this was after our houses were burned down.

CHAIRPERSON: You didn't take steps in order to counter attack?

MR MKHIZE: We didn't have a specific area to attack them, because they were from another chief, from eNkanyezini, that's where they fled to.

CHAIRPERSON: What would have stopped you entering eNkanyezini area and attack if you knew that the people who were attacking you were from there and you knew them?

MR MKHIZE: It wasn't easy for us to do that. We knew that they will say when they are swearing, therefore we will know who were involved in this attack, but it wasn't easy for us to counter attack them.

MR MALAN: You were asked under cross-examination about your knowing or not of Mr Makeke, do you know what vehicle he drove?

MR MKHIZE: Yes, I do know.

MR MALAN: Can you tell us?

MR MKHIZE: Isuzu, a white Isuzu.

MR MALAN: Did you know Mr Ngobane, the person who drove the vehicle that was attacked the day the children were killed?

MR MKHIZE: Yes, I know him.

MR MALAN: Was he related to you?

MR MKHIZE: No, we are not related but we are neighbours, we are staying in one area.

MR MALAN: Did you lose children in that incident?

MR MKHIZE: Yes, I lost children.

MR MALAN: How old were your children?

MR MKHIZE: The truth is they are my sister's kids, but they were staying with me. I was their guardian. I know one was 19 years old, the other one was 12 years and the other one was 9 years.

MR MALAN: Thank you.

CHAIRPERSON: The white Isuzu belonging to Makeke, did it have a canopy?

MR MKHIZE: Yes, but sometimes he will remove it and sometimes he will put it back.

CHAIRPERSON: Where was Makeke staying?

MR MKHIZE: At Mboyi area.

CHAIRPERSON: I don't think you have anything to re-examine him on Ms Thabethe.

MS THABETHE: That's correct, Madam Chair.

CHAIRPERSON: Thank you Mr Mkhize for coming here in front to give us your evidence.

WITNESS EXCUSED

CHAIRPERSON: Ms Thabethe, who is your next witness?

MS THABETHE: Madam Chair it's Bongane Kuala.

BONGANE KUALA: (sworn states)

EXAMINATION BY MS THABETHE: Can I proceed Madam Chair?

CHAIRPERSON: Yes.

MS THABETHE: Mr Kuala, you were one of the people who were in the van that was attacked on the 2nd of March 1993, is that correct?

MR KUALA: That's correct.

MS THABETHE: Can you briefly tell the Committee members as to what happened that day?

MR KUALA: Yes. We were going to school. It was early in the morning. We were in a cream-white bakkie with a white canopy. The driver was a certain guy from the Ngobane family. On our way we were ambushed, this was before we arrived in school. They shot at the car. Some kids alighted the car and they were shot outside the car. After that, after they had shot at us, it became quiet and I had realised that my sister had passed away and three boys from the Mkhize family, they are my aunt's children, they were injured. After it was quiet I alighted the car. I could see that they were injured. When it became quiet that's when I decided to check on them. As I was checking on them, trying to chat with them, I saw Qeda Zulu approaching me. Since he was someone I knew, I requested him not to shoot me. He said he wouldn't let me go because he said I was going to tell the police. I pleaded with him. I said to him I was trying to save my sister. He said he won't leave me because I will tell the police and then he shot at me.

MS THABETHE: When you were attacked, did you see anybody else besides Qeda?

MR KUALA: Others I could not see because they had balaclavas, but I saw him, because we even talked.

MS THABETHE: Did you belong to any political organisation at that time, in 1993?

MR KUALA: No, I was still at school.

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

NO FURTHER QUESTIONS BY MS THABETHE

ADV DE JAGER: How old are you now?

MR KUALA: 19.

ADV DE JAGER: So at that stage you were round about 13?

MR KUALA: Yes, I was 13 to turn 14.

CHAIRPERSON: You state that you could not recognise the others because they were wearing balaclavas. Was Qeda not

wearing a balaclava?

MR KUALA: He had a balaclava, but then he had removed the front part of it. It was in his head only, that's how I recognised him and that's when I started talking to him.

CHAIRPERSON: Would you please slow down because you are too fast and the interpreters cannot cope with you?

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: You've pointed out as to where Qeda was standing when you were talking to him. We would like you to explain that more so that the interpreters will interpret this, so that we can get the distance between you and Qeda.

MR KUALA: I was sitting inside the car on the bench. Opposite that bench there was my sister. In the middle there was a boy and two of them were lying down, they were already dead. The two who were inside the bakkie, I think they were still struggling. They had been shot at. I was still thinking as to what to do to help them. As I was chatting with them, trying to calm them down, Qeda and them came and Qeda had removed his balaclava from the face part of it and when I saw him I said "Oh, my uncle, I didn't know it was you and now I'm begging you not to shoot me." I started crying. He said he wasn't going to let me go because I had already recognised him, now I was going to tell the police about him and then after that he shot me.

CHAIRPERSON: When you were talking and pleading with Qeda, asking him not to finish you, were you still inside the car?

MR KUALA: Yes, I was still inside, I was sitting.

CHAIRPERSON: Were you still sitting on the bench?

MR KUALA: Yes.

CHAIRPERSON: And where was Qeda at this time?

MR KUALA: He was outside the bakkie at the back.

CHAIRPERSON: Can you estimate the distance between where you were seated and where Qeda was standing?

MR KUALA: I will say this is the end of the car, the end of the table is the end of the car. I am sitting on the bench like I'm sitting here and he is right outside there at the end of the car and he saw that I was the one who was talking to these people.

CHAIRPERSON: In other words he was close, very near to you?

MR KUALA: Yes, he was.

CHAIRPERSON: When he shot at you, was he still standing there?

MR KUALA: He walked as if he was going away to the other side of the car. When I thought he was going, that's when he shot at me. After that I tried to alight the car but then I got weaker and then they whistled to each other and then they left. I lost strength and then I was unconscious and when I regained my consciousness there were police and soldiers in the area, or in that vicinity of the incident.

CHAIRPERSON: Where in the body did he shoot you?

MR KUALA: Where I'm pointing, here and there, at the side under my arm.

CHAIRPERSON: Did he shoot you once?

MR KUALA: Here it's three times and there's one on my buttocks. Yes, one on my buttocks and three under my armpit.

CHAIRPERSON: Mr Sardiwalla do you have any questions to put to Mr Kuala?

MR SARDIWALLA: Yes, thank you Chairperson.

CROSS-EXAMINATION BY MR SARDIWALLA: Mr Kuala, did you ever see the applicant on that day, at that incident?

MR KUALA: No, I didn't see him.

MR SARDIWALLA: You say all the others that were there had their faces covered?

MR KUALA: Yes.

MR SARDIWALLA: And as I understand your evidence, after they had first shot at the car, at the vehicle, Qeda then came up. Did he then open his face, or was it open all the time, or did you see when he did this, can you explain?

MR KUALA: I thought they had already gone. I was busy trying to calm down those who had been injured in the car, I was chatting with them and the only time I saw him it's when he was there standing outside the car and that's when I realised him. I thought that they had already gone.

MR SARDIWALLA: And you say when he spoke to you he said, when you begged and said to him "please don't shoot me", he said to you "now you've recognised me and you'll tell the police".

MR KUALA: Yes, that's correct.

MR SARDIWALLA: Wasn't it strange that he actually had a balaclava that he could have pulled over his face and you wouldn't have recognised him, but he chose to leave his face open so that you could recognise him?

MR KUALA: I grew up under Qeda, he was one person I was under even in church. After he did this, he realised that I was the only one who was still alive. They came back and I pleaded with him to spare me, but then he refused.

CHAIRPERSON: Has your question been answered? Are you satisfied?

MR SARDIWALLA: No, it hasn't been answered.

CHAIRPERSON: The question that has been put to you is whether it wasn't strange that even though he had a balaclava, his face was not completely covered as he approached the vehicle.

MR KUALA: I don't know why he did that.

MR SARDIWALLA: You see why I say it's strange is because all the rest you clearly saw, you saw others there, but they all had their faces covered, but it sounds very unusual that the person who actually came to the bakkie elected to uncover himself so that whoever was there could see his identity.

MR KUALA: What I can say is that I think, I personally think that he wanted to spare me but then he was scared that I was going to tell the police, but the way he carried this thing, I could tell that he didn't want to kill me but that he was scared that I was going to tell the police.

MR SARDIWALLA: You say you had a lot of respect for Qeda because you were under him as a preacher?

MR KUALA: Yes, that's correct.

MR SARDIWALLA: Did you ever have a problem with him?

MS THABETHE: Sorry, Madam Chair, he didn't say he was a preacher, he said he was under him in church.

MR SARDIWALLA: Sorry, my apologies, I'll restructure that question. So because you grew under his care, you actually were known, you had respect for him, is that correct?

MR KUALA: Yes, that's correct.

MR SARDIWALLA: There was no conflict between yourself and him?

MR KUALA: No, there wasn't.

MR SARDIWALLA: Do you know what position Qeda held politically?

MR KUALA: No, I didn't know. I saw him coming and shooting at us, that's all.

MR SARDIWALLA: I have no further questions, Chairperson.

NO FURTHER QUESTIONS BY MR SARDIWALLA

MS THABETHE: No re-examination.

NO RE-EXAMINATION BY MS THABETHE

CHAIRPERSON: Mr Kuala, we'd like to thank you for coming forward and giving your testimony of the incident which happened. It is not a nice testimony but this is what we have to do and we thank you for that. You can now step down.

WITNESS EXCUSED

CHAIRPERSON: Mr Sardiwalla and Ms Thabethe, are you in a position to present your oral argument?

MR SARDIWALLA: Yes, Chairperson if the matter can stand down for a few minutes, just for me to confirm with client and assimilate information, I'd reckon about 4.30.

CHAIRPERSON: Can we give you 5 minutes?

MR SARDIWALLA: Fine.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: You wanted to be afforded about 15 minutes, we indicated that it's 5. We decided in chambers that maybe we should be accommodating enough and accommodate your request in your absence. We hope now that you have had your 15 minutes.

MR SARDIWALLA: Yes, Chairperson, it's been a very, very fruitful 15 minutes and I intend sharing that 15 minutes with the Chairperson and members of this Committee.

MR SARDIWALLA IN ARGUMENT: I have specific instructions which I need to first deal with prior to the actual issue and my specific instructions given to me in the 15 minutes are as follows

That my client feels absolute remorse, sadness and total regret for what has happened. He wants to, and this is one of the reasons why he is here today, in the presence of the country, in the presence of the parents, publicly, not in secrecy, to profusely apologise for the incident, irrespective of what your Committee decides in this matter, he also accepts that his remorse and regret will not bring back the children, but he is stretching his arms out and he's done that during our recess. He says it was - this day he would never forget because during the recess he reached out to some of the parents and apologised to them. He was not able to do it with all of them, but he intends doing it with each one of them.

The other very touching aspect that he shared with me just now, that he's really moved by, is that for the first time in approximately 6 years he spoke to his father and his father showed compassion to him and he feels that he can build the bridges between himself and his family now that the political scene has settled down.

So this has been more than just a moment of shedding the burden of this weight that he's carried for the past 6 years. He has asked me to record that and he is grateful to the Commission for having created a structure of this nature where he could do it because he could never, he had the fear in him of retaliation, the fear of whatever else would have otherwise prevented him from having a day of this kind. So I thought that was important and I need to record this.

As far as what I understand Section 21 requires in an application, I submit that my client has complied with the essential three legs of an application of this nature in that he has complied with the formalities and requirements of the Act in applying for amnesty. I also submit that it is almost common cause, having now heard the evidence of the victims, that there was clear political conflict between the IFP and the ANC and it undoubtedly emerged that it was as a direct result of this political conflict that this most unfortunate incident took place.

CHAIRPERSON: Is that common cause?

INTERPRETER: The speaker's mike is not on.

MR SARDIWALLA: If one looks at the evidence, and I'll deal with that in a short while, I'm just making the broad submissions at this stage. It is also my submission that client was not compelled to be here, he was not being sought after, he was leading a life otherwise relatively normal, but elected of his own accord to come in public to face the people that have been affected by the incident, the process of the law and make a full disclosure. So I believe that within his memory and within the knowledge of what transpired, I submit he has in fact made a full disclosure.

I'd like to now deal with these aspects relative to the evidence that was led. If one looked at the evidence of the applicant and if one looks by and large at the factual sequence leading up to the incident that was decided on and that was adjudicated by the court in respect of the other two accused, except for the identities of the two people, the accused in that matter, the factual evidence more or less ties in to what was said by my client, the place that the incident took place, for example, the description of the road, the fact, and the Judge made some very strong statements regarding the conflict between the ANC and the IFP at the time and regards it as being common cause that there was this conflict at the time. He found that, in his Judgment, that there was in fact common cause that there was a conflict during the time of this incident between the IFP and the ANC.

What also appears to be clear from the evidence of my client, is that he was a member of the ANC. That was undisputed. There was some uncertainty about what organisation he belonged to prior to 1990, but I believe that is not as material to this application as his allegiance at the time of the incident. I believe that evidence has not really been contested.

CHAIRPERSON: It has been confirmed by Mr Mkhize.

INTERPRETER: The speaker's mike.

MR SARDIWALLA: Mr Mkhize also confirmed, after a bit of explanation and persuasion, that there was in fact a volatile situation between the ANC and the IFP after the incident. Irrespective of who attacked who on the 26th or around that time, there was a volatile situation that had arisen between both organisations. So there was clearly political strife in the area and my client clearly, from the evidence that is before this Commission, was a party to the events.

If one looks at his demeanour generally as a witness, he was subdued, he was not abrasive, he was not rash and he dealt with the evidence, I believe, in a manner that any person who is asked to give evidence about detail would, almost 9 years, 8 years after, 6 years after the incident.

ADV DE JAGER: Isn't our main problem, if he'd killed Makeke, that was he's instruction or that was what's decided, let's not put it as high as an instruction, then it would be a different matter altogether. My problem is, if he'd been, not ordered, if he'd been assigned or whatever or he volunteered to kill Mr Makeke, a bakkie is driving up, he doesn't even know who is driving this bakkie, he doesn't even know whether this man is wounded, and the shots should be directed at the driver because that's the target, weren't they totally reckless as to the possible victims that might have been struck by the bullets? Isn't that the crux of a problem for amnesty here?

MR SARDIWALLA: Can I deal with it? Thank you. I think we must accept that there's very little evidence, if not nothing at all, to suggest that he specifically in concert with others, had taken a decision to attack the vehicle to kill children, innocent children or any person other than Makeke. That was the intention. It wasn't a discussion that had taken place or an individual decision that was taken by him, it was discussed at a gathering, rightfully or wrongfully and it was generally agreed amongst all that were present that he normally goes in this cream-white vehicle and that one must ambush that vehicle, that was decided. It wasn't him singly that decided that, the organised group decided that. We're not talking about a situation where one stands on the top of a building in a sophisticated manner with professional training as a hit man, and knocks an individual down. You're talking about bush war. I think one must understand that. These attacks are not sophisticated in their planning, sophisticated in their implementation. He did what he was trained to do and that is to find the target and annihilate that target. That is the training that they received and he did precisely that.

CHAIRPERSON: But what was the object of the attack?

INTERPRETER: The speaker's mike is not on.

MR SARDIWALLA: The object of the attack clearly was both the IFP member, Makeke and he was in that particular vehicle, that was the other objective. He was - it seems as though there was a lot of discussion about the vehicle in which he normally travels and that seems to be uncontested evidence, that that was the vehicle that he was supposed to be travelling in and he was seen in transporting other IFP members and that was the ...(intervention)

ADV DE JAGER: It's also uncontested that children were daily transported on that route.

MR SARDIWALLA: But outside the knowledge of my client. If he had known that, and I think he was repeatedly asked about this, he did not know that there were children also transported in a similar looking bakkie, had he known that and despite that knowledge went ahead, then we would have had serious problems, I concede, but he's never had this knowledge. One must remember that these are people that lived in and out in hiding, not in homes, up in mountains, were there to protect themselves and attack at the appropriate time. This was the modus operandi of both organisations.

MR MALAN: Did you say that he was under the impression - was his evidence not that it was indeed the same bakkie and not a similarly looking bakkie?

MR SARDIWALLA: He is unequivocal that it was the same bakkie and he even believes that, there's no doubt about that.

CHAIRPERSON: He knew the bakkie.

MR SARDIWALLA: And there has been an error, he's conceded that. I mean he said "had I known that there was another bakkie carrying children, I would never have killed, particularly my own step-nephew".

CHAIRPERSON: Yes, but Mr Sardiwalla, his evidence is not that there was another bakkie, his evidence is that it was the same cream-white bakkie that was known to be driven by Makeke, even though it belonged to somebody else.

MR SARDIWALLA: And what is important was that this was a decision that was made jointly, he didn't singly decide that I must do this, so it must have been thought out, it must have been - it's well and good saying in hindsight that they should have done x or y, but at the time the circumstances and the general consensus that appears amongst everyone, was that the white bakkie which Makeke drives, is the one that needs to be ambushed in this.

MR MALAN: The cream-white bakkie which he on occasions drives.

MR SARDIWALLA: Yes, which he was seen driving, on the applicant's evidence, at the time when one of the incidents occurred recently, where he was transporting people, members of the IFP.

MR MALAN: But let's just - are we agreed also that on the applicant's evidence he knew that it was not Makeke's bakkie?

MR SARDIWALLA: Yes, he said that, he said that. He did not attempt to be untruthful to the Commission in saying that well he knew it was Makeke's bakkie and whatever, he said it was not but he knew that Makeke regularly drove that bakkie.

CHAIRPERSON: He wasn't just seen driving, it was known to him that Makeke used to drive the car occasionally and that it belonged to a person who had recently moved into the area and this information was confirmed by one Tola Cele that Makeke had been seen driving the car on the 26th February when an incident occurred on the ANC members allegedly by the IFP members.

MR SARDIWALLA: What is also significant, is that Kuala confirms that it was a cream-white bakkie that they were in, so if there were any doubts about the colour of the bakkie, there were some suggestions in cross-examination that it may have been the white bakkie and not the cream-white, but I think Kuala, who was in that vehicle, confirmed that it was actually a cream-white bakkie.

CHAIRPERSON: I think the mistake was from your side, your affidavit, yes. You may proceed.

MR SARDIWALLA: Thank you. So it is my submission therefore that the target was clearly a political target. It clearly involved an organisation or organisations that were both active, Makeke being active in the IFP and that was clear from the evidence of Mkhize, that he was an active member of the IFP. So it wasn't as though he was an individual of his own standing and so was the applicant, he was an active member of the ANC, trained in the handling of ammunition and firearms. So I therefore submit that ...(intervention)

MR MALAN: Sorry, did we have evidence that Makeke was trained in the handling of firearms?

MR SARDIWALLA: No, no, I said the applicant. It is therefore my submission that despite the fact that everything went wrong, one must look at the mind of the applicant prior to and at the time that he committed this act and there seems to be very little doubt that his mind indicated that he was actually executing the decision that was taken by the organisation, in conjunction with his comrades.

ADV DE JAGER: There's one other thing, if children were shot outside the bakkie as was - that evidence wasn't disputed - how could we then believe that in fact they only wanted to kill Makeke?

MR SARDIWALLA: I assume that you are now referring to Kuala's evidence? I have some concerns about Kuala's evidence. I have concerns about Kuala's evidence specifically as far as the aspect of identity. To say the least, and particularly in the way it was described by Kuala, an assailant who commits a deed, an atrocity, who has the means of concealing his identity, actually displays his identity to a known person whilst the other perpetrators conceal their identity. Now this I find highly improbable.

CHAIRPERSON: Whilst you are dealing with that aspect which seems to be giving us a little problem, because we don't know what weight now to attach to the evidence of Mr Kuala, taken in conjunction with the post mortem report, which undoubtedly you must have had sight of, in relation to the injuries sustained by the victims, the nature of the penetration of the bullets on their bodies, which would seem to indicate that some were shot quite at close range. I don't know whether you have had sight of the post mortem.

MR SARDIWALLA: Yes, I've had sight of the post mortem and I'm glad, Chairperson, that you've raised that. What appears to be the position as far as those reports are concerned is that there was continuous firing and the evidence is clear from my client that there was firing also on the canopy side of the vehicle. I mean, he was standing on the side, they were firing all around, there were four of them. We are looking at high calibre arms at a distance of approximately 20 paces. We are also looking at people sitting on benches in a vehicle and you must remember that there are some people that would have had their backs facing, at the back of the vehicle, their backs facing the area from which the firing would have taken place.

So you may well have had, and there's no clear unequivocal evidence as to how those shots were fired, but it could well be and that is from the evidence of my client, it's my understanding of my client, that in that process they may have been shot from the canopy into their backs, resulting in rear penetration as was shown in the post mortem report. I can't take that any further, I must concede that, I can't take that any further. My client doesn't say -the one thing he's clear about and remember it took - his evidence which is uncontested, it took a minute or two, this was a spontaneous quick attack, in and out and that's how these attacks normally take place, with three automatic weapons firing at the same time, four automatic weapons. There's a hang of a noise, firstly, there's metal being hit continuously, it happens for a minute of two and people are gone.

Now there is some - I believe that my client's version is probable in the sense that he didn't wait to see what happened. One doesn't normally wait. You know that the opposite party is normally armed, that you can expect anything to happen, be it from the vehicle or from the area, if you stand there and wait for a response. They did what they had to, they believed they had in fact completed their task, and he said so in his evidence, which is uncontested, that they thought they actually hit Makeke, they didn't see him come off the vehicle. That was never really taken any further, that he came off prior to them escaping or running away but it seems in his mind or their minds, particularly in my client's mind, they'd hit the target and they ran off. They heard screams, but obviously they were running for their lives as well. So I believe that the version that has been put by my client, taking, and one must look at the circumstances objectively here, is a probable version, without doubt. The question one must ask, and I think Chairperson, Members of the Committee must ask, would a person who is sitting safely in a comfort zone without any indications of coercion, come up here and give a version that is totally bizarre or absurd or not in line with the truth?

Now I'm just saying, there may be situations, you have more experience of them, but I am saying that I believe my client has played open cards and there may be factual discrepancies, I can concede that, there may be factual discrepancies, but if one looks at the evidence overall, the factual evidence overall both in the criminal trial and the evidence in the manner it was led, one must accept that his version is probable even having taken the evidence of the victims into account. I think it does not necessarily attack or in any way undermine the evidence led by my client.

CHAIRPERSON: On that point, what possible motive would Mr Kuala have in implicating the applicant's brother of such an atrocity, when he was not present during the commission of this crime? That is what is presently in my mind.

MR SARDIWALLA: Yes. One can speculate on various aspects but one of the speculations that was presented to me was that the identity of all of them was not known because our version was that their faces were all covered at the time.

CHAIRPERSON: No, you didn't give a version, that's where we have a problem with that. We actually, on this point, obviously should blame our evidence leader as well, because when your client was giving evidence it was never put to him as it should have been done by our evidence leader that she will lead evidence to the effect that at the time when the people were attacked, some were wearing balaclavas and that there was one particular person who participated in the attack, whose face was uncovered. So we have not been able to ventilate this issue because of lack of proper procedures having been followed in the leading of evidence, but you yourself did not lead this kind of evidence, so we have not been able to take the matter any further.

MR SARDIWALLA: Chairperson, you know there was absolutely no need to lead that evidence in the way the cross-examination went. It wasn't an issue at all and had I known that it was an issue, I would have certainly led that evidence because if one looks there are lots of other issues that were raised, but were not an issue at this particular hearing.

ADV DE JAGER: Even on the issue where children were shot in the road, you never cross-examined on that. So that stands uncontested.

MR SARDIWALLA: Are you referring to Kuala's evidence now? Yes, but I said to you that my view is that, if one looks at the probabilities of the evidence that was led by him, particularly as far as ...(intervention)

ADV DE JAGER: But surely, even if the probability on one aspect of his evidence may be so, you can't say he's telling an untruth about everything. You can't say because he may be wrong about the balaclava, that he's also wrong about the wounds he received.

MR SARDIWALLA: Chairperson, the position, and Members of the Committee, is that as far as the evidence of the shooting of the children is concerned, my client's version is very clear on that. My client has made it very clear that at no stage did he see or shoot at any children and that he has made very clear and Kuala did not at any stage suggest that my client in fact specifically shot at the children.

CHAIRPERSON: We are quite aware of that and our concern is that the implication of his evidence would go to the non full disclosure of your client in so far as the attack is concerned. Your client says he and the persons that he has identified participated in the attack and the evidence of Mr Kuala seems to suggest otherwise. The evidence of Mr Kuala is pointedly to the fact that Qeda, who is the applicant's brother, is the one who actually shot him. He fired four shots at him. Now that evidence was not disputed by you. I mean that version was not controverted.

MR SARDIWALLA: Yes. Can I just respond to that? Our version throughout, and clearly there is a factual dispute as far as identity of the perpetrators is concerned, there are two sets of facts as far as identity of the perpetrators is concerned. What is presented by the evidence is one and what my client has submitted seems to be at total variance. What is also clear is that our client indicated in his evidence that Qeda was not there, nor was Sibusisu there. He indicated that in his evidence and that was not really contested. That was not contested. The strength of my view or my submission as far as Kuala's evidence is that the probabilities relating to identity are based on whether Qeda was actually wearing a balaclava or not. My submission is that his version is so improbable, that it must be disbelieved on that aspect. That he could not, whatever motive he may have had, it's highly unlikely and improbable that a person would come and divulge his identity after perpetrating a crime of this kind, to a person that is known to him and particularly in a case where all the rest of them still had their faces covered. So, my submission is, on that aspect, Kuala's evidence must be rejected in total, it's so improbable.

MR MALAN: Was the evidence of Kuala not that the implicated individual did not reveal his identity to him, knowing who he was, but that he recognised the implicated person, Qeda and that he first addressed him and only then did he see who the individual was. Shouldn't one also read it against the backdrop of, in terms of his evidence, of the intention really to kill everybody there? "I also have to kill you now", and he shot again, on the basis of his evidence, whoever that individual was. I'm not necessarily arguing that the identity was correctly established, but that such an altercation did take place in some way or another in terms of the wounds inflicted and also in terms of the post mortem, the photographs, the whole Judgment which is part of the bundle. It's very difficult.

MR SARDIWALLA: There may well be wounds inflicted. I think you concede that the identity could be an issue in question.

MR MALAN: This is the point. The identity could be an issue in question, but the point is this, if the identity is an issue in question, then what is not in question, not necessarily flowing, is the fact of some altercation at the back of the vehicle of two people standing next to each other, the one partly covered with a balaclava and the other one, one of the victims, whereas on the evidence of the applicant, no one got near the people, the shots were made, or the shooting was from quite a distance.

MR SARDIWALLA: I think one must, Chairperson and Members of the Committee, must look at the evidence of the applicant's evidence as he experienced it. Now he says what he did, what he saw. If one of the other perpetrators did in fact go around, it's outside his knowledge, it's obvious. It was never put to him that maybe someone did go and you did not see them, but he indicated that after he had conducted what he had done and what he had thought he had completed, he ran off. So if a person did in fact go to that vehicle, yes it may well be, but he ran off and there's no suggestion that he was in fact the person that came there. In fact it was put to Kuala "did you see him" and he said "I've never seen him". So it may well be that he actually ran off whilst one of the others, be it Qeda or anybody else, let's leave the identity, that actually went up in that minute or two, around, peeped, fired a shot or two but this was pandemonium there at the time, it wasn't, you know it's not as though it's a book written thing that follows, step 1, 2 and 3. He ran off and there's nothing to suggest that he stood there, or he went to the vehicle. We're talking about the applicant and what he saw and what he experienced and that has been uncontested.

CHAIRPERSON: May I find out how identical Qeda is to the applicant?

MR SARDIWALLA: May I approach my client on that one?

CHAIRPERSON: Yes, you may.

MR SARDIWALLA: My instructions are that they look different, firstly, and they've got a difference in height as well.

CHAIRPERSON: Yes.

MR SARDIWALLA: May I continue, Chairperson?

CHAIRPERSON: You may do so, Mr Sardiwalla.

MR SARDIWALLA: Thank you. So having regard to these submissions, Chairperson, I submit that, despite the discrepancies that may have arisen as a result of the ...(indistinct) of time when he has not methodically, I am now referring to the 1987/88 issue that he was not too clear about - there was some clarity that was sought out of him as far as the white vehicle and the cream-white vehicle were concerned -overall I believe that he has complied with the requirements of Section 20 and I submit that amnesty be granted to him.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you, Madam Chair.

MS THABETHE IN ARGUMENT: On behalf of the victims who are opposing the application, we would argue that the applicant has not satisfied the requirements of the Act in terms of Section 20 sub-section (1)(c) and also sub-section 1(b) in that he has failed to make full disclosure and also the fact that the act or the

offence of killing the school kids was not associated with a political objective.

I'll start with the full disclosure. We argue that there was no full disclosure because the victims - or my instructions which I have put to the applicant were that in 1993 the area was an IFP area, there were no ANC areas and there were no known ANC areas at Maqonqo.

ADV DE JAGER: There were sporadic attacks.

MS THABETHE: There were attacks that were done by people outside of the area.

CHAIRPERSON: But isn't eNkanyesini part of Maqonqo?

MS THABETHE: Yes Madam Chair, eNkayesini is part of Maqonqo and my instructions are that eNkanyesini was also an IFP area.

CHAIRPERSON: But hasn't it been the evidence of your own witness, Mr Mkhize, that the people who attacked came from eNkanyesini?

MS THABETHE: No, Madam Chair, his evidence is that the people who attacked came from outside Maqonqo.

CHAIRPERSON: No, not from outside Maqonqo. His evidence was that the applicant himself was now staying at eNkanyesini and that's where these people were coming from They were coming outside Mboyi, they were not in Mboyi they came outside Mboyi and that the applicant, to his knowledge, was staying in eNkanyesini.

MS THABETHE: Maybe I'm mistaken, but that's not how I heard him. However, if the evidence is that he stayed at eNkanyesini, still eNkanyesini was known to be an IFP area. According to my instructions., there was no ANC area at Maqonqo.

ADV DE JAGER: But would it make a difference whether there was an area as such or not? The fact is that there were attacks and that's common cause. Also that I think they were from people who had previously fled and came from outside to lodge the attacks.

MS THABETHE: It makes a difference in the sense that, according to the applicant, there were attacks that were made by the IFP towards the ANC members at Maqonqo and my instructions are that there were no such attacks that were made because, as you heard from Mr Mkhize's evidence, they did not know where they could attack the so-called ANC members because they were staying outside. That's how I understood him. They didn't know where to attack these people, so it does make ...(intervention)

CHAIRPERSON: The knew where to attack. His evidence is quite pointed with regard to that aspect. He did not want to go and attack them because it was a different chief and the chief he mentioned was the chief of eNkanyesini. That was the evidence of Mr Mkhize.

MR MALAN: Miss Thabethe, my recollection again is that the applicant conceded that there was no ANC area as such and that some of the ANC members did return, but they moved, I think the idea used was, anonymously, living among the other people. I don't think - but even if it was as you see it, would that

really relate to disclosure in connection to what happened with the incident?

MS THABETHE: It would in the sense that it gives motive to the incident, the motive being that there were IFP people attacking ANC people and as a result the ANC people had to attack back and my argument is that there were no IFP attacks towards ANC people because, according to Mr Mkhize, they would not have known where to attack them because there was no ANC area at Maqonqo.

ADV DE JAGER: Let's accept that for a moment that there weren't IFP attacks on the ANC people, but that could be something as far as disclosure is concerned, but it wouldn't reflect on the objective or the political motive of the other attacker. Even if there were no IFP attacks, there might have been ANC attacks and according to the Act we're not looking whether there were in this particular instance attacks vice versa, there was a conflict situation and I think that's accepted by both parties. So it would - in the sense that it would relate to the motive of the applicant, that wouldn't make a difference, but it could make a difference as far as disclosure is concerned. Is that your point?

MS THABETHE: Yes, that's my point. Thank you, thank you Honourable Member of the Committee.

The second point on disclosure is based on the fact that the applicant says when they fired shots at the vehicle they did not know that it was children that they were firing shots at. I would argue that I find that improbable because when they fired shots, there must have been screams from the car indicating that it's children screaming. Further, from the evidence of Mr Kuala, he even said that he himself tried to run away and some kids were shot outside the vehicle. So I find it very improbable that the applicant did not know that it was school kids that they had fired shots at. Also, because he seems to suggest that they knew Makeke very well to be driving a white bakkie and they have observed him quite a number of times, I find it very strange that in their observation of Mr Makeke, they wouldn't have known of a regular trip that always occurred in that route every morning, of a cream-white bakkie that used to take school kids from their homes to work. I find that very hard to comprehend and I would argue that if they had time to observe Makeke, observe his ins and outs with the cream-white van, they should have known that it also, more especially because he indicates it was not Makeke's car, it did not belong to him. He must have known that it's also used, if at all it was the same car, it's also used to carry or transport school kids to school.

Further, I think - I argue that the applicant should have or would have foreseen that if it's not Makeke's car, or if the car doesn't belong to Makeke, when they attacked they could have been attacking the owner of the car and not Makeke, or somebody else for that matter, as it occurred in this instance and therefore caution could have been - they should have foreseen, I think they would have known, they should have known that it could carry anybody, I mean somebody else, not necessarily Makeke.

Also I would like to address the Committee on the identity problem that my learned friend has argued on, the fact that it's so improbable that Mr Kuala could have seen Qeda Zulu. I would argue that I don't find it improbable because if we could for a moment imagine what was happening there, there were shots fired, according to Mr Kuala, and then it became quiet. So probably that's when the balaclava was taken off. Because it was quiet, he might have thought that everybody that they have shot at has been killed and that's when maybe he decided to take off his balaclava. I mean, we can never know what the reasons are, but I don't think it's improbable that that could have happened, considering that after they fired shots, it was quiet thereafter. They might have assumed that everybody else was shot or was dead and it was safe to take the balaclava off.

If you could bear with me please. On the issue of political motive, I would argue that, in the light of the fact that they could have foreseen that not only Makeke was driving the white bakkie but maybe the owner as well could drive the bakkie, they could have exercised more caution. The applicant has stated clearly that he had no intention to kill the school children. He also indicated that had he known that it was school children, he would not have fired those shots. So basically this offence - he also admitted that the killing of school children was not associated with a political objective even though there might have been attacks that were made by the ANC before that. This specific one was not associated with a political objective at all.

That is my argument Madam Chair, unless you want me to address you on a specific issue.

CHAIRPERSON: Mr Sardiwalla, do you have any reply?

MR SARDIWALLA IN REPLY: There is just one aspect I wish

to canvass Madam Chair and Members of the Committee. Kuala gave no evidence that the children screamed. There's no evidence to indicate that children were screaming and the applicant would have heard the children screaming. In fact applicant said that as he was running he heard screams but he can't say who it was, so if one tries to weigh probabilities one must look at the type of evidence that has been led and had that evidence been led one would have then looked around it and investigated, but I believe that one can't use that as being a method of attacking my client's version.

CHAIRPERSON: Bearing in mind that, if we accept your client's version, he was 20 paces away and all of them were using automatic weaponry and the noise must have been quite deafening.

MR SARDIWALLA: Yes, absolutely, absolutely and I accept that as well. Madam Chair, that's the only real aspect I wish to raise.

CHAIRPERSON: What do you say to the point that Ms Thabethe has raised with regard to the attack on the vehicle which was known not to have belonged to Makeke, was known to have been driven occasionally by Makeke, that more caution should have been exercised to ascertain that it was Makeke who was driving the vehicle on the occasion, on the incident in question, during the incident in question, because it might have been the owner who could have driven the car?

MR SARDIWALLA: Chairperson, I think one must be very careful as far as this aspect is concerned, namely that my client has conceded that there has been an error as far as the target and what eventually happened, but one must look at it from what he perceived to be what he had to do and what he had in fact done. Based on the information that the group of 20 had the night before, based on the information that everyone felt this cream-white vehicle was the vehicle that Makeke was seen driving in the area and the fact that he's transporting IFP people, based on an informed decision that they had taken, there was no talk that the owner was seen driving this vehicle, there was talk, and where this really came from one doesn't know because there was discussion around it before that decision was taken, that Makeke was the one that drives this cream-white vehicle. They, on occasions, - but he was seen - the important thing is on one of the attacks he was seen driving that particular vehicle with members in it and it was seen in his mind and in the minds of that group as being the vehicle that Makeke normally drove and that was the vehicle that they had to ambush. So he went with this particular picture in mind and armed with this information that, in his mind, and be it wrong, be it wrong, I'm not saying that it may be the correct impression, be it wrong, but the impression in his mind clearly was that Makeke was the one that would be driving this cream-white vehicle and if we ambush it we're going to get Makeke, but it all went wrong completely. It wasn't even Makeke. It wasn't even IFP supporters that were sitting at the back, it was children. But - in hindsight it was wrong, but if one looks at a situation and the subjective mind that was there in the applicant's, in those circumstances, he was satisfied that he was now going to destroy Makeke. In fact he said in his evidence that he believed that he now had shot and Makeke was there, nobody else, and that he had destroyed him and ran off. That was what his evidence was and which is uncontested really as far as his version is concerned.

MR MALAN: But that's not correct, he also alluded to the fact that they saw other people and shot at them too.

MR SARDIWALLA: Yes, there were other people, he didn't know who they were. He accepted that, but the target was Makeke and he had shot Makeke as far as he was concerned and he went off. So yes, in hindsight one can say there were many things wrong with the planning and how it ought to be done and the precautions that ought to be taken, but once again I wish to urge Madam Chair and the Commission to remember that we are not dealing with a sophisticated American-style warfare plan.

ADV DE JAGER: The trouble is they've killed 6 other people but they didn't kill the target, the target being the driver and they don't know what happened to the driver. He got out of the vehicle, ran away and they're not aware of it.

MR SARDIWALLA: Chairperson, yes, but the point here is that when he shot and they stopped at the point when they were satisfied that the driver was in fact killed and not only the driver, but Makeke was killed. That was his evidence. He said that he was satisfied and that's when they ran off. They had done their job. One can argue now, having the benefit of hindsight, that surely you should have gone and opened the door and checked whether Makeke was there, or shone a torch before, come closer to check whether it was Makeke or somebody else, but that has all other ramifications in that situation, in a war situation literally between parties. One must put yourself in the shoes of the applicant at the time.

MR MALAN: May I just ask one last question? I can understand that one needs to look at the different perspectives. Are you suggesting we should totally disregard all evidence by Kuala? The question was put to you in the beginning, what might a possible motive be? You simply said speculation. But we have that evidence too before us at the moment and that's basically not contested by the applicant, except it's traversed by his own version in a sense. But all the evidence is before us, if we are to disregard the inconsistencies there, what do we make of the other evidence which still stands?

MR SARDIWALLA: When one looks at the court record and the Judge's views on the evidence, we must remember that Kuala at the particular time was, we said, 14 years of age...(intervention)

ADV DE JAGER: But we can't look at the Judgment because, according to your client, it's totally wrong.

MR SARDIWALLA: Yes, well, wrong as far as the identities of the person are concerned, but if one looks at the evidence led on the other aspects, and I've alluded to that, if one looks at the factual evidence of how the incident, what happened prior and the locality of the incident, it all seems to tie in, if one looks at that aspect. But let's deal with the aspect of Kuala's evidence per se. That's the question I am told that I must deal with.

The crucial aspect of Kuala's evidence that has been led today deals with identity in my mind.

MR MALAN: No, that's not my problem. I told you earlier identity is not my problem.

MR SARDIWALLA: I'm not finished with that.

MR MALAN: Sorry.

MR SARDIWALLA: One aspect is identity. The crucial aspect is identity and the second is the fact that the children were shot at close to the bakkie, whilst they were running. Now I've responded to those Chairperson and Members of the Committee, I've responded to those. I said that as far as the identity aspect is concerned, I believe one cannot accept his evidence. As far as the question of the kids being shot is concerned, what is clear is that my client didn't do it, the applicant didn't do it. What is possible, and I'm repeating what I said before, that it may be that whilst he was running off, and we don't have that evidence, that one of the others may have gone through to the vehicle and shot them. Now I mean, we can speculate a dozen things, but in my client's mind, he went off and that evidence is not even challenged.

MR MALAN: May I just ask this last question then I'll leave you be on this? Was your client's evidence not that they all shot for about 1 to 2 minutes and that they all retreated and fled then? He did not say that some stayed behind and he fled of his own.

MR SARDIWALLA: Yes, in his mind, that was his evidence, that's correct. In his mind they all ran off, but I'm saying the probabilities are that one of them could have, may well have for a moment or two, gone to the vehicle.

CHAIRPERSON: Why should we rely on probabilities when we have got direct evidence on that issue? I mean we have the evidence of Mr Zulu in this regard. The firing took place simultaneously which lasted for a minute or two and immediately thereafter they all fled. Why should we go elsewhere other than from the direct evidence that's presented before us on that aspect? We can't go outside, if we have direct evidence from the applicant.

MR SARDIWALLA: No, I accept that, I accept that. Maybe I must, I concede that that is the view that the Chairperson must take as far as that is concerned. That's the direct view of the applicant and it's really for the Committee to decide to what extent it's going to rely on Kuala's evidence and the probabilities, given the circumstances at the time.

CHAIRPERSON: And given the direct evidence given by your client, which seems to be presenting you with a slight difficulty.

MR SARDIWALLA: I accept that, I accept that.

CHAIRPERSON: Thank you very much, Mr Sardiwalla, for the assistance, the invaluable assistance, may I qualify, that you've rendered to this Committee. We sincerely thank you.

CHAIRPERSON: Ms Thabethe.

MR SARDIWALLA: Chairperson, it's been really a privilege to appear before yourself and the Commission. I wish you all the luck in the future in so far as your matters are concerned.

CHAIRPERSON: Thank you. Ms Thabethe.

MS THABETHE: Thank you Madam Chair. That concludes this matter.

I would request the Committee Members, due to time, to strike some few matters off the roll because the way we are running, I foresee that if we start a matter, a fresh matter tomorrow, we might not finish it and it will be a part-heard. I would therefore request that the matter of Vincent Nene be struck off. It was supposed to be heard on Tuesday. The matters of Magwaza ...(intervention)

CHAIRPERSON: Can you give the applicant's name as well as the application number?

MS THABETHE: Certainly, Madam Chair. Mcebo Vincent Nene, reference number 5629/97, he's not in prison. The second one is Humphrey Phakade Magwaza, reference number 6613/97, he's also not in prison. Also the matters of Tobias Ronnie Mbanjwa, reference number 5967/97, he's also not in prison. The last one of Sakhamuzi Harale Elvis Ndaba, reference number 6387/97, he is also not in jail. Thank you Madam Chair.

CHAIRPERSON: Thank you Ms Thabethe. The matters called out by Ms Thabethe are accordingly struck off the roll. This brings us to the end of our proceedings here in Durban. We wish to extend our warmest gratitude to all the people who made it possible for us to hold this hearing. Our logistic officer Joe Japhta, the media people, the public, the members of the public, the legal representatives who assisted this Committee representing different applicants in different applications, the interpreters who are always faced with the difficult task of trying to interpret at ground breaking speed and our technician. I see that we no longer have our cameraman. Our gratitude to you all.

We also have to record Ms Thabethe that the matter of Mr Ngomezulu and Mr Ngcobo have been postponed sine die. This brings us to the close of these proceedings. Goodbye to you all.

MS THABETHE: As the Committee pleases.

HEARING ADJOURNS