Amnesty Hearings

CHAIRPERSON: Yes Mr Smuts?

LUNGILE MAZWI: (still under oath)

CROSS-EXAMINATION BY MR SMUTS: (continued)

Mr Mazwi, yesterday we were dealing with the confession proved in the criminal trial and the text of it as it appears on page 81 of the judgment.

We have dealt with the sentence which states we went to a certain spot where whites arrived for holidays and you said this was what you were told by the police, is that correct? You were taken there as I understand it, by your colleagues from Port St Johns. What did they tell you about that area?

MR MAZWI: I was told that that was a camp. It was a camping site for visitors.

MR SMUTS: Mr Chairman, I heard no reply.

INTERPRETER: I was told that it was a camping site, the place was a camping site.

MR SMUTS: I am not receiving a reply from the Interpreter Mr Chairman.

INTERPRETER: I was told that the place was a camping site. The place was a camping site.

MR SMUTS: I apologise Mr Chairman, I wasn't receiving a reply.

INTERPRETER: The place was a camping site.

ADV DE JAGER: The translation that came through was I was told it was a camping site for visitors.

MR SMUTS: So, Mr Mazwi, the fact that you were told that this was a camping site for visitors, must have alerted you to the fact during the holiday season, that there could be visitors who could be holiday makers in the area?

MR MAZWI: Yes, that is correct. I have a problem with the microphone. I had a problem with my headphone. Okay.

MR SMUTS: Thank you. The statement continues our vehicle which belongs to Vuyani Nyalukana was parked a distance from the holiday resort.

Does that correctly reflect the position?

CHAIRPERSON: What position, whether he made that statement or ...

MR SMUTS: Is that a correct reflection of what took place on the day?

MR MAZWI: Yes, that is true, but I just wanted to clarify something. I did not see the place with my own eyes. Even the house, I did not see the house. I was only at a spot where the incident took place.

I heard people telling me that there was a house and a camping site there. I never saw the place with my own eyes.

MR SMUTS: Yes. Your statement continues some of us, about four, went to the flats to check whether the whites were there. Is that what in fact happened?

MR MAZWI: Yes, some people went there to check.

MR SMUTS: And the statement continues they came back and reported that they had found an old lady and a girl (whites).

MR MAZWI: I cannot say that it was true that they found an old lady and a girl. I got that from the Prosecutor. I did not get that information from the comrades. The comrades who went there to check in the house.

MR SMUTS: Can you firstly explain who are you referring to when you say you got that from the Prosecutor?

MR MAZWI: I got that from the Investigators of the Murder and Robbery Department that there was an old lady there and a girl. I got that information from the Investigators.

MR SMUTS: Was that prior to your making this confession to the Magistrate?

MR MAZWI: Yes, they told me when we were there at the Murder and Robbery Department.

ADV DE JAGER: Okay, then could you kindly tell us what did your four colleagues report to you, on coming back, what did they see, what did they observe there?

MR MAZWI: As I said yesterday, it is difficult for me to explain at a time when the people went to fetch water from the river, but yesterday I said that at some stage I went to the shop and when I came back, I got my colleagues together, talking. They were from those houses, but what I heard was that there were no one inside there, when I inquired.

ADV DE JAGER: Sorry, I've got a problem here. The Interpreter's voice and the witness' voice, both voices are coming through simultaneously, so I can't distinguish if I am on channel 2.

Could the witness kindly repeat his answer and could it be translated so that I could find out whether it is still mixed up.

MR MAZWI: I am saying it is difficult for me to explain everything that happened at the time just before the attack because some people went to the river to get some water and I went to the shop and when the people who went in there to inspect the place, they came back, but when they came, I was still in the shop and they were with the other comrades.

MR SMUTS: The shop that you went to, was that the shop that belonged to the relatives of your fellow applicant, Mr Hermans?

MR MAZWI: Yes, that was his family shop.

MR SMUTS: Was the area then known to Mr Hermans at least, although it wasn't known to you?

MR MAZWI: As far as I am concerned, he is from there, he is originally from that place.

MR SMUTS: Is it your evidence then that when you enquired, those who had gone to scout out the area, reported that they had found nobody there?

MR MAZWI: That is the answer that I got, that they said inside the houses, there was no one, but there were cars that the people were supposed to wait for. They said those cars had gone to a certain coast.

MR SMUTS: Who said that the cars had gone to a certain coast?

MR MAZWI: It is difficult sir, to differentiate because I did not ask a specific person, I was just speaking generally. I was getting answers from anyone, so therefore I cannot be so sure who actually gave me that particular answer.

MR SMUTS: But did you get the answer from your colleagues who had gone to scout out the area, one or other of them?

MR MAZWI: I got that information from the comrades who were sitting together with the comrades who went in there to check in the flats.

MR SMUTS: And was it reported to you how they had come by the information that somebody had gone, that people had gone to this other coast?

MR MAZWI: I did not make any follow up concerning that. I had to wait for the time.

MR SMUTS: What do you mean that you had to wait for the time?

MR MAZWI: As we were sitting there, we were waiting for those cars who were out, the cars that were said to be gone to another coast.

MR SMUTS: And your evidence to this Committee is that the Investigating Officers told you that there would have been an old lady and a girl who were white at the bungalow at the time that the investigating party went to have a look, is that your evidence?

MR MAZWI: Yes, I said so.

MR SMUTS: And that would have been - in what context would they have said that to you?

MR MAZWI: It is because I was denying that I was also in there, they said I must not fool myself, because my colleagues told them that there was an old lady there and a girl on that day of the attack.

MR SMUTS: So are you saying the Investigating Officers said to you that you had been told by your colleagues that they found an old lady and a girl there?

MR MAZWI: The Investigating Officers got that information from my colleagues or comrades.

MR SMUTS: In the judgement dealing with the admissibility of this confession, at page 4073, the learned Judge dealt with your evidence regarding that sentence, the sentence which reads they came back and reported that they had found an old lady and a girl (white) and he records at the bottom of page 4073 at line 23 that your evidence was that the idea of mentioning the old lady came from you.

At the top of 4074 the judgement continues ...

MR ZILWA: I am sorry Mr Chairman, I am not aware of page 4073. I am not sure which volume or bundle my learned friend is referring to.

MR SMUTS: Mr Chairman, it is volume 27, the typed transcript dealing with the judgement on the admissibility of the confessions in the criminal trial.

MR ZILWA: I must say I don't have that document Mr Chairman. I don't know if any of the Committee members has it?

CHAIRPERSON: That is what the Judge believed and said that he made a finding about, have you got any comment about it?

MR SMUTS: I am sorry, Mr Chairman, I hadn't completed putting the passage to the witness.

At the top of page 4074, the Judge records that your evidence was "he did not know what kind of whites they were referring to and he only decided to mention the old lady. When asked about the mention of the girl, he said that the police had told him that they only found females and he only thought that they might have found an old lady and a girl."

Is that indeed what your evidence was in the criminal trial regarding that portion of your confession?

MR MAZWI: I hope that is the way that, that is the manner that I testified in court.

MR SMUTS: Why do you hope that that is the way you testified in court?

CHAIRPERSON: I think that what he intends to say is he hopes that he is being correctly quoted. What do you mean by you hope that that is what you testified?

MR MAZWI: I agree with him in what he says.

MR SMUTS: Thank you Mr Chairman. The evidence that the idea of saying there was an old lady, came from you, according to your evidence today, was false?

MR MAZWI: Sir, I was trying to save myself, I was trying to escape. I was trying to save myself, therefore it will be difficult. The way I was testifying, the manner in which I was testifying in court, I was actually trying to save myself, therefore it will be difficult for me to clarify further on that fact.

MR SMUTS: How would it have made any difference to you whether, in the criminal trial, whether you testified as you do today, that you had got this information from the police or whether you testified as you did then, that the idea of mentioning the old lady was your own inspiration?

MR MAZWI: Whatever I was saying in front of police, it will be different from something that I will be saying willingly because I was not free there, even when I was in Leboti doing that confession. I was a bit confused.

CHAIRPERSON: What the Advocate is saying is that when you were, during your trial you told the Judge that this story about an old lady was something you made up. And you now tell us, that wasn't the truth, but that you were trying to save yourself and that is why you told the Judge that it was something that you made up.

Today you tell us that the idea of an old lady was really something that was reported to you by the police when they were investigating this matter and interrogating you. That information they acquired from one or more of your colleagues. What the Advocate, and you say - what the Advocate is asking you is why didn't you tell Judge Davies that in fact this information I acquired from the police rather than saying you made it up? Because it wouldn't make any difference, you were lying in both cases.

MR MAZWI: The manner in which I was testifying there in court, cannot be the same as when I testified in a free environment. At the time my intention was to be found not guilty in court.

ADV DE JAGER: Okay, now can you please tell me, did you make the story up yourself or did the police tell you about the story?

MR MAZWI: I got that from the police office in the Department of Murder and Robbery, this story about an old lady and a girl, I got it from that office.

ADV DE JAGER: So you didn't make up the story?

MR MAZWI: No, I did not make up the story as I told the Judge at the Supreme Court.

CHAIRPERSON: And neither did you get that information from any of your colleagues?

MR MAZWI: I cannot remember clearly, but I am sure that I got this information from the police Officers in the Murder and Robbery Department that there was an old lady and a girl.

CHAIRPERSON: Well, then your colleagues could not have told you that if you are sure that you got the information from the police, not so?

MR MAZWI: What do you mean, do you mean they couldn't have told me at the time, or after. What do you mean actually?

CHAIRPERSON: Well, it doesn't matter when you heard it. You are saying that you acquired this information from the police after you were arrested, during interrogation, not so?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: And therefore you could not have got this information from any of your colleagues?

MR MAZWI: I cannot say so, I could have acquired that information from them.

CHAIRPERSON: But you have just told me that you were sure that you acquired this information from the police during interrogation?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: And it follows then that you did not acquire this information from any of your colleagues? Isn't it?

MR MAZWI: That does not mean that I could not get this type of information from my colleagues.

CHAIRPERSON: Well, did you get it from your colleagues?

MR MAZWI: What I can remember is that they said there was nobody inside there, so we had to wait for the cars that were out to the other coast. I cannot remember clearly who the person was, the person who gave me this type of information.

CHAIRPERSON: We are not talking about information that the house was empty and the number of cars, and that the occupants had left for the coast, we are not talking about that.

We are talking about the aspect of whether there was an old lady and a young girl somewhere noticed during that reconnaissance trip. Where did you acquire that information? Forget about whether there were really a white old lady and a white young girl there.

Where did you get that kind of information?

MR MAZWI: As far as I can remember, I got that from the Murder and Robbery Department.

CHAIRPERSON: And therefore it follows that it would not have been any of your colleagues that gave you that information, but as you say, you acquired it from the police?

MR MAZWI: That is correct.

MR SMUTS: I understood your evidence earlier to be that you got that information from the police in the context that they said to you they had come by that information from one of your other colleagues, is that correct?

MR MAZWI: Yes, they told me so. They told me that they got that information from some of my colleagues.

MR SMUTS: Did they identify the colleagues from which, from whom they had obtained such information?

MR MAZWI: I cannot remember. I cannot remember, I don't remember them telling me the name of the person who told me so because even if ...

INTERPRETER: Can the speaker please repeat the last part?

MR MAZWI: I cannot remember them telling me the name of the person, because even the person who actually implicated me in that case, I was not told, his name was never revealed to me.

MR SMUTS: Do you know which of your colleagues were arrested before you were?

MR MAZWI: Yes, I do.

MR SMUTS: Who were they?

MR MAZWI: The first one was Pumelele Hermans.

MR SMUTS: Was he the only one that was arrested before you were?

MR MAZWI: He was with Vuyani Nyalukana.

MR SMUTS: Were they the only two who were arrested before you?

MR MAZWI: And Mlulamisi Maxhayi and Zongizela Mxhiza.

MR SMUTS: The statement continues at line 20 on page 81 of the typed, line 19 I beg your pardon, a young herdboy appeared and said some white men had travelled to the sea in a 4 x 4 van to catch fish.

ADV DE JAGER: Mr Smuts, where are you?

MR SMUTS: Mr Chairman, the text to the confession appears on page 81 of the typed judgement which is in the bundle.

ADV DE JAGER: You are reading from line?

MR SMUTS: Line 19 Mr Chairman, a young herdboy appeared and said some white men had travelled to the sea in a 4 x 4 van to catch fish.

Is that in fact a correct reflection of what took place on that day?

MR MAZWI: Yes, that is correct.

MR SMUTS: Is it correct that when you went to set the ambush along the road along which you anticipated the vehicle would travel, you knew that what you were going to ambush, was a fishing party?

MR MAZWI: Do you mean on our way to the place?

MR SMUTS: I mean Mr Mazwi when you went to go and set up the ambush, you knew that you were setting up an ambush for a fishing party which was going to return home.

CHAIRPERSON: Maybe for the purposes of the application, it will be fair to put to him that the party was a fishing party intending to return home, and not infiltrators.

MR SMUTS: That might be two issues in the light of what Mr Maxhayi gave evidence about Mr Chairman, that is why I wanted to know as specifically as I could.

CHAIRPERSON: Deal with them, let's see what he answers.

MR MAZWI: Before we could move, we did not intend to attack the fishermen. We got that information while we were there that some cars had gone to a certain coast.

MR SMUTS: And you were told by a herdboy that the people had gone fishing?

MR MAZWI: I was not told, but this is what I said during the confession.

MR SMUTS: No, no, Mr Mazwi, I asked you to confirm or deny whether this information which you recorded that you were told by a herdboy that whites had gone fishing, in fact correctly reflected what happened on the day in question, and you confirmed that it did.

Do you now wish to deny that it happened?

MR MAZWI: I was agreeing, I was admitting what you were reading to me.

CHAIRPERSON: But you were asked if that was the truth, and you said yes.

MR MAZWI: I thought that he was actually asking me about the statement that he was reading.

MR SMUTS: Mr Mazwi, do you wish to retract your admission that the statement that you were informed by a herdboy that the whites had gone fishing, was true?

MR MAZWI: As I have said that whatever I was saying in that statement, I was actually trying to save myself from prosecution. Everything that I said there, was not true. I wanted to save myself from the situation.

MR SMUTS: I want to be fair to you Mr Mazwi, are you saying that the contents of this statement was false and was an attempt to save yourself from prosecution?

MR MAZWI: Yes, that is what I am saying, but some of the things, it is information that I got, I heard from someone.

MR SMUTS: Well, how did you think you were going to save yourself from prosecution by saying that you lay and wait for a vehicle and when the 4 x 4 van bypassed ours, those who were laying had fired shots at it and it capsized. Would you explain to the Committee how you thought that was going to save you from prosecution?

MR MAZWI: As I said, some of things there are true, but some of them are not true. I just wanted to be free. It is the policemen who took me to the Magistrate, not the Prosecutors.

MR SMUTS: Well, let's try the present version then. Are you now saying that some of what is in the statement is true, and some of it is not?

MR MAZWI: Yes, that is so.

MR SMUTS: It was not a statement made to save you from prosecution?

CHAIRPERSON: What do you mean by trying to save yourself from prosecution?

MR MAZWI: Sir, I am not saying I was saving myself from the Prosecutors, but I was actually, I wanted to save myself from the police because they were forcing me to do anything and they were actually assaulting me. I was doing everything under duress.

MR SMUTS: Will you explain ...

ADV DE JAGER: Now there is no policemen now threatening you and you are not giving evidence under duress, did a herdboy inform your colleagues or yourself about some white men that had travelled to the sea in a 4 x 4 van to catch fish?

MR MAZWI: About this young herdboy, but I think they did meet with this young boy. I am not sure whether it was a servant or what, but someone told them about the cars that had gone to another coast.

I did not meet with this herdboy.

ADV DE JAGER: And they told you on returning, that they had met a herdboy or someone who told them that the car went to another resort to catch fish? Is that correct?

MR MAZWI: As I said before sir, that when I came back the comrades who had gone to inspect the place, were back and they were talking to other comrades.

I did enquire about their results, what they found when they had been inside the flats, I got the information that some cars had gone to another coast.

ADV DE JAGER: To catch fish or not?

MR MAZWI: Yes, they did mention the fact that they had gone fishing.

ADV DE JAGER: Thank you.

MR SMUTS: And so I repeat the proposition I put to you, by the time that you went to set the ambush for the vehicle that you expected to return, you knew that you were setting an ambush for a fishing party?

MR MAZWI: I cannot deny the fact that they said they were fishermen, because I know that they might pretend as if they were fishers, it was a fishing party whereas they were not.

CHAIRPERSON: What did you think they were?

MR MAZWI: It is because I know that a person can pretend to be doing something else, whereas that is not the case.

CHAIRPERSON: No, that is not the answer to my question. What did you think that party was or those people were? What did you think they were doing there at the resort?

If you thought they could also be pretending to be fishermen, what else could they have been? What did you think they were?

MR MAZWI: I regarded them as their other friends from Port St Johns, that were also enemies.

CHAIRPERSON: What were they doing? Why were they enemies?

MR MAZWI: Because they were an obstacle in the way of our struggle.

CHAIRPERSON: Mr Mazwi, what did they do that presented an obstacle to the struggle? What did you think they did or were doing, or had done or were going to do?

MR MAZWI: As I said before, that the comrades from Port St Johns told us about their problem. They mentioned something about disturbances and arms and attacks were expected.

MR SMUTS: With fishing rods Mr Mazwi? Were you expecting an attack with fishing rods?

MR MAZWI: They would take their fishing equipment with, whereas at the same time they would have grenades and other sorts of ammunition.

MR SMUTS: Did you have any evidence of any kind whatsoever, that the people that you were about to ambush and attempt to kill, were anything other than a genuine fishing party on holiday?

MR MAZWI: I do not deny the fact that they were holiday makers who went fishing, but at the time I did not have that knowledge. I was actually expecting an enemy. I was waiting for an enemy.

ADV DE JAGER: I've got one problem, and I wish to put it now because I think that could either prolong or shorten the proceedings.

You went there to retaliate the death of Chris Hani, isn't that true?

MR MAZWI: That is correct.

ADV DE JAGER: And it wouldn't have mattered whether you saw Mr Weakley or whether you saw Mr X or whether you saw Mr De Jager there, if he was a white man, you would have killed him?

MR MAZWI: If I would get him to a place or a spot that was identified as a problem, if I don't know that person, as long as I was told that that particular place had those people who were enemies, I would do that, I would kill him.

ADV DE JAGER: Didn't you consider the white people to be your enemies at that stage, on that very day?

MR MAZWI: I did not regard all the white men as my enemy.

ADV DE JAGER: Did you regard Mr Weakley as your enemy?

MR MAZWI: Because of the place where he was found and as a person that I did not know, it was easy for me to identify him as my enemy.

ADV DE JAGER: Because he was in that place, you identified him as your enemy? Is that correct?

MR MAZWI: Yes, as they said that the place was actually frequented by the people who were regarded as enemies, therefore I regarded him as an enemy.

ADV DE JAGER: Okay, who gave you that information that that place was frequented by the enemy, who is that person, what is his name?

MR MAZWI: The comrades from Port St Johns told me that one of the places that ...

ADV DE JAGER: That is the comrades of Port St Johns who have got names. I am asking you about the name, don't dodge the question every time, tell us the truth. Who told you that?

MR MAZWI: It was Pumelele Hermans and Fundisile Guleni.

ADV DE JAGER: Now, why didn't you give us that information in the first place, why should we drag it out of you? You are aware that you should make a full disclosure here, otherwise we can't help you. Please answer the questions and give us the truth now.

MR MAZWI: I apologise for that, but it has been difficult for me to understand questions at times, because English is not the same as Xhosa.

CHAIRPERSON: It has been translated to you Mr Mazwi.

MR MAZWI: Yes, that is true.

CHAIRPERSON: And this is not the first time that you have been asked where you obtained that information. Not so?

MR MAZWI: That is so.

CHAIRPERSON: Let me put it to you this way and I want to be as fair as possible to you. The law compels us to grant amnesty when certain requirements are complied with. One of those requirements is an applicant making full disclosure of what occurred in an incident for which he applies for amnesty.

A failure to do so, equally compels us to refuse the application. Do you understand? I am being quite fair to you now. If we are not satisfied as a panel that you are disclosing everything properly, then we will be forced to refuse it. Be forewarned.

MR SMUTS: Thank you Mr Chairman. Mr Mazwi, did you or any of your colleagues make any effort whatsoever, to discover whether or not the people you were set to ambush, were bona fide holiday makers on a fishing trip before you set the ambush?

MR MAZWI: No sir, we didn't.

MR SMUTS: Do you accept today that they were indeed holiday makers who had gone on a fishing trip?

MR MAZWI: Yes, I wouldn't deny that.

MR SMUTS: Do you accept also that far from being rightwing infiltrators, this party included people who were open and expressed opponents of the regime of the day?

MR MAZWI: I wouldn't accept or deny that, because I am not aware of that.

MR SMUTS: At the time when you set the ambush, did it matter to you at all who it was that you were awaiting and who it was that you were going to try and kill?

CHAIRPERSON: Do you talk about names and addresses or ...

MR SMUTS: In general.

MR MAZWI: Can you please explain sir.

MR SMUTS: Once you had decided to set the ambush, was it of any concern to you what the reason for the presence of those people were, what the political persuasions of those people were, whether they were adults of children?

MR MAZWI: We didn't notice that.

MR SMUTS: Did you care?

CHAIRPERSON: If it was someone who you knew was a holiday maker, would you have proceeded with that then?

MR MAZWI: No, we would not have proceeded.

CHAIRPERSON: Why did you then proceed with that that day?

MR MAZWI: Because we did not know, we were not sure that they were holiday makers or not.

CHAIRPERSON: What did you think they were?

MR MAZWI: I thought that they were one of the people that were causing problems in that area.

MR SMUTS: Why didn't you find out whether they were amongst those people before you decided to take their lives?

MR MAZWI: We didn't have that time sir.

MR SMUTS: Why not?

MR MAZWI: I think it was the situation that caused that, that caused us not to have time for that.

MR SMUTS: Mr Mazwi, the evidence we have heard is that the reconnoitring party went down to find out what was going on sometime between ten and eleven in the morning, is that correct?

MR MAZWI: I am not sure about the time sir, but there were people who went there to reconnoitre the place.

MR SMUTS: Mr Maxhayi's evidence was that it was between ten and eleven in the morning. Was it in the morning?

MR MAZWI: It might happen that he did have time, I did not have time with me. I wouldn't say that is not the case.

MR SMUTS: The other evidence is that the shooting was at sunset, there has been an estimate of half past five in the afternoon, would you agree with that?

MR MAZWI: Yes, that is true, it was during sunset.

MR SMUTS: What precluded you between ten and eleven in the morning and half past five in the afternoon, from seeking to find out from the people who were at the camp, the identity and the reason for the presence of the people whom you were waiting to ambush?

CHAIRPERSON: Identity in as what? Names and addresses or whether they were in fact these rightwingers?

MR SMUTS: Mr Chairman, can I rephrase the question, what precluded you from seeking information about the people whom you were waiting to ambush, so as to ensure that the people that you were waiting for, were in fact those whom you were targeting for an attack?

MR MAZWI: I wouldn't say what stopped us, but the way things were, I don't think that we would have time to investigate, because a lot of us did not know the place in the first place.

MR SMUTS: Is that the best answer you can give us for failing to make any enquiries?

CHAIRPERSON: Mr Smuts, just excuse, I don't follow the question. Having been told by the reconnaissance party together with those who purportedly had the first hand information, what was occurring there, is it to be expected that those people who came from outside the area, to make further investigations or would one accept that they bona fide accepted the information that they received, rightly or wrongly?

MR SMUTS: Mr Chairman, these people were about to take the lives of people they didn't know. They were in a holiday area, in a holiday season.

Their information was that the people they were waiting to ambush had gone fishing. The question is quite simply addressed to whether they made any effort to access or to inform themselves from those who were present and knew something about the people, whether these were rightwing infiltrators from Port St Johns or not?

CHAIRPERSON: I quite follow your reason. I am just asking as to the wisdom of the question.

Here we have an applicant who says he went there on an operation. That perhaps he did not follow up what we consider he should have done in the comfort of this hearing, he relied on the information that he got. The negligence of failing to make further enquiries, is that of any moment?

MR SMUTS: Yes, with respect Mr Chairman, it is of extreme importance. It goes to the good faith which the applicant is required to establish before he can qualify for amnesty.

CHAIRPERSON: It follows from your argument then that they should not have relied on the information.

MR SMUTS: It is a question which can be addressed in argument Mr Chairman, but with respect, there is no evidence yet that the informers told them that the people they were to ambush, were in fact the enemy who had been identified.

CHAIRPERSON: Carry on.

MR SMUTS: Mr Mazwi, in what capacity did you participate in this so-called operation?

MR MAZWI: I was just standing next to the car and I was protecting those who were not armed.

MR SMUTS: Sorry, let me try and be more clear. Were you there in your capacity as a member of the African National Congress, or as a member of the Communist Party or in what capacity was it that you were there?

CHAIRPERSON: Or a member of the Self Defence Unit? All three or any combination of the three?

MR MAZWI: I was there because I was a member of all those organisations, but I was under ANC Youth League and SACP and the SDU's.

CHAIRPERSON: That decision to do what you people did, was that a decision made under which flag?

MR MAZWI: We made this decision as the SDU's.

CHAIRPERSON: Did you obtain or try to obtain authority from any of the other organisations of which you were a member or not?

MR MAZWI: We didn't try to obtain authority sir.

MR SMUTS: And you were isolated members of an SDU rather than an SDU as a group, who made the decision to participate in this attack?

MR MAZWI: We took this decision from Flagstaff because we were members of the SDU and we were in the sub-region of Lusikisiki.

ADV DE JAGER: But I've got problems with you taking the decision as members of the SDU. Didn't you take the decision as individuals, as supporters of the SDU, but not as a body of SDU's or as supporters of the ANC and not as, by virtue of you being a member thereof and a meeting being held and you being authorised?

MR MAZWI: The question is not clear to me, can you please repeat the question.

ADV DE JAGER: Didn't the two of you, or the three of you, decide on your own we are supporters of the SACP or the ANC or the SDU, we take it on our own, as supporters, to revenge the killing of Hani?

MR MAZWI: It happened that way sir.

ADV DE JAGER: I don't want, I want you to make very sure of the answer. You have taken the decision as supporters, but you acted as individuals in taking those decisions, the decision to go and kill somebody or people in order to retaliate the death of Hani?

MR MAZWI: Yes, that is correct sir.

ADV SANDI: Sorry Mr Smuts, normally Mr Mazwi, how were decisions taken in the SDU's, was there a laid down procedure that would have to be followed whenever decisions are taken?

MR MAZWI: It depended sir, on the kind of decision that was to be taken.

ADV SANDI: If an important decision like this for example, had to be taken, what procedure would be followed, what would happen, who would get together and discuss?

MR MAZWI: They comrades who were able to take a decision, would take a decision, even if they are four, five or six. It was not necessary for all members of the SDU's to be there in order for such a decision to be taken.

ADV SANDI: So the few who get together, could discuss and then agree, later they go and inform others that this is the decision we have arrived at, is that what you are saying?

MR MAZWI: It is not everything that was taken to other members to inform them, because of the dangers of other cases. For example the case we are dealing with today.

MR SMUTS: In the interests of which organisation or organisations were the SDU's meant to act?

MR MAZWI: All the organisations that were under the ANC.

MR SMUTS: Did that mean that the SDU's were required to act within the bounds of the policy of the ANC?

MR MAZWI: Yes.

MR SMUTS: What was the policy of the ANC from the signing of the Pretoria Minute on the 6th of August 1990 until the day on which you launched this attack on the fishing party, as regards the use of violence?

MR MAZWI: Please repeat your question sir.

MR SMUTS: What was the policy of the ANC regarding the use of political violence?

MR MAZWI: The ANC was against violence.

MR SMUTS: Whose interests were you then promoting when you decided to resort to violence on the 13th of April 1993?

MR MAZWI: We were serving the interest of the SDU's.

MR SMUTS: And not the interest of the ANC?

MR MAZWI: Even the interest of the ANC as well.

MR SMUTS: Do you concede that your actions were in direct conflict with the expressed policy of the ANC?

MR MAZWI: I wouldn't accept that, or deny that.

MR SMUTS: Well, I am afraid, you are going to have to make a choice Mr Mazwi, because if you wish to qualify for amnesty, you are going to have to establish in whose interests you were acting and for what reason.

MR MAZWI: The way in which the SDU's operate sir, is not the same. It is not the same with all the ways that the ANC operated.

MR SMUTS: Are you saying that it was open to the SDU's to operate in conflict with the expressed policy of the ANC?

MR MAZWI: We were forced to do so because this is the manner in which we were trained.

MR SMUTS: You were forced to do so by whom or by what?

MR MAZWI: The situation prevailing at the time was compelling us to do so.

MR SMUTS: Are you saying that the situation at the time, compelled you to act in conflict with the expressed policy of the African National Congress?

MR MAZWI: We were not in conflict with the policies of the ANC, but we were doing our job as the SDU members.

CHAIRPERSON: Mr Smuts, what would be the purpose of the establishment of the Self Defence Unit?

MR SMUTS: Mr Chairman, there was evidence as to the reason for the establishment of the Units, that they were a defence mechanism.

CHAIRPERSON: Would you agree, inherent therein, that should the people who are to benefit from such defence mechanisms, were attacked, the Self Defence Units would necessarily have to at times use violence to protect?

MR SMUTS: Mr Chairman, ...

CHAIRPERSON: I am not suggesting that this is the case here, I am just talking in general?

MR SMUTS: Yes, that would be principle at law, that wouldn't ...

CHAIRPERSON: Yes, but wouldn't that, if one wants to interpret the policy strictly, be in conflict with the policy of the African National Congress?

MR SMUTS: No Mr Chairman. If one goes to these documents that are collated as Exhibit B, they deal with the use of violence to achieve a political end.

With respect, they could never have been intended not any of the accords, nor the National Peace Accord, the Pretoria Minute or the D.F. Malan Accord, could ever have been intended to preclude the right to self defence.

Nowhere in the text of any of those documents, is there a suggestion that the right to self defence is limited in any way.

CHAIRPERSON: Isn't that the point that the witness is trying to make?

MR SMUTS: It would be somewhat astonishing with respect, to see ...

CHAIRPERSON: He is confronted with a proposition that resorting to violence would be contrary to the policy or stated policy of the African National Congress. I don't know if that is absolutely correct.

MR SMUTS: May I refine it Mr Chairman. Your decision to launch an attack on persons driving a motor vehicle on the way back from a fishing trip, I suggest to you was in direct conflict with the policy of the African National Congress at the time.

MR MAZWI: At the time sir, I cannot say that it was not in conflict with the policy of the ANC, at the same time I cannot say it was not in conflict, but at the time we were working as the SDU members and we were doing our duty.

MR ZILWA: Just for the record, the witness has said at the same time I cannot say it was in conflict. I see a double negative was used by the Interpreter.

MR SMUTS: If you say you were performing your duty, your duty to who?

MR MAZWI: We were doing our, we were performing our duties concerning those people who were regarded as our enemy.

CHAIRPERSON: Your duty was to protect people, not so?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: Who were you protecting by doing what you did? Who did you think you were protecting at the time by doing what you did?

MR MAZWI: We thought we were protecting our leaders and the people of South Africa.

CHAIRPERSON: How would you be doing that in doing what you did at that time?

MR MAZWI: Are you referring to that incident, that particular incident or what? Your question is not clear sir.

CHAIRPERSON: On the 13th of April, is it, you launched an attack?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: Did you think you were protecting your leaders or the people of South Africa in launching that attack?

MR MAZWI: The intention was to notify those who were still prepared to eliminate our leaders, they were to know that if they still continue doing that, they will be in trouble.

That was a way of sending a message through.

MR SMUTS: By launching a murderous attack on three fishermen and two children, is that how you sent the message?

MR ZILWA: I am sorry, I am sorry, Mr Chairman, before that is answered, I am not quite sure that the question is fair. The witness has said repeatedly that everybody who was in that camp, every white person who was in that vicinity at the time, they regarded as an enemy. He has repeatedly stated that they know that had they known that it was a mere party of fishermen, they would not have gone ahead with the attack.

Now with that response on record, it is not fair to suggest that they meant to protect their leaders by attacking fishermen and children. The question is just not in context.

CHAIRPERSON: I think it is a fair objection Mr Smuts, if you would care to rephrase.

MR SMUTS: Well, the cold facts Mr Chairman, are that that is what they did.

CHAIRPERSON: Yes, but in the context as Mr Zilwa says at the time - this witness' evidence is that he laboured under the impression that based on the information that he had received, that any white person found along that coast, was an infiltrator doing whatever they objected to.

MR SMUTS: Well, if I can explore that then Mr Chairman, is it your evidence Mr Mazwi, that children found on that coast, who happened to be white, were to be regarded as the enemy against whom your leadership required protection?

MR MAZWI: I would not regard children as enemies.

MR SMUTS: But your party fired on a vehicle in which there were two children?

MR ZILWA: Again Mr Chairman, that needs to be put in the proper context. At no stage did the witness or anybody else say at the time that they did the firing, did they know or see that there were children in the vehicle.

ADV DE JAGER: Did you do anything to find out whether there were children or women in that car?

MR MAZWI: No sir, we did not.

ADV DE JAGER: So you didn't care whether there were women or children in the car?

MR MAZWI: That did not occur to me that there would be children in the car.

MR SMUTS: Mr Mazwi, did you hear the passage that Mr Maxhayi read yesterday from the statement of the then ANC President, Mr Mandela on the 13th of April 1993?

MR MAZWI: Yes, I heard that.

MR SMUTS: Did you hear the passage which reads at page 9 of the document, Exhibit B, any lack of discipline is trampling on the values that Chris Hani stood for?

MR MAZWI: Yes, I heard so.

MR SMUTS: Those who commit such acts, serve only the interests of the assassins and desecrate his memory?

MR MAZWI: Yes, I heard that too.

MR SMUTS: Do you agree with that view expressed by Mr Mandela?

MR MAZWI: Yes, I agree sir. As Chris Hani was killed, he was still maintaining that position.

MR SMUTS: Can I ask you then what gave you and your colleagues the right to deviate from that position?

MR MAZWI: We were forced by the situation, because they killed the person who was actually preaching about peace. That action actually compelled us to act in that manner and we looked like people who were actually deviating from that role, whereas we were not like that.

MR SMUTS: You say you were forced by the situation, is that correct?

MR MAZWI: Yes, that is correct.

MR SMUTS: Do you say you were forced as members of the SDU's to act in that situation?

MR MAZWI: Yes, that is correct.

MR SMUTS: We heard yesterday that there were 15 members of your SDU, is that correct?

MR MAZWI: Yes, that is correct.

MR SMUTS: Three of you acted in this manner?

MR MAZWI: Yes, that is correct.

MR SMUTS: Were the other 12 not forced by the situation to act in such a way?

MR MAZWI: It is as I said before, that our modus operandi as SDU's, we are not compelled to inform anybody about any operation. It depends on how delicate the operation is, or how dangerous or sensitive the operation is.

MR SMUTS: What I suggest to you Mr Mazwi, is that what sets you apart, you and your two colleagues, from the other 12, is not that you were forced to act by the situation, but that you chose to act in the manner in which you did, notwithstanding the expressed policy of the African National Congress regarding resorting to political violence.

MR MAZWI: We were forced by the situation sir.

MR SMUTS: I have no further questions Mr Chairman.

NO FURTHER QUESTIONS BY MR SMUTS

CHAIRPERSON: Mr Zilwa?

RE-EXAMINATION BY MR ZILWA: Thank you Mr Chairman. Mr Mazwi, you say the manner in which your SDU operated, was such that it was quite permissible and normal for a decision of the type that you took, to be taken by a few members of the SDU, such as the three of you?

MR MAZWI: Yes, that is correct sir.

MR ZILWA: In taking that decision as you did, was there anything contrary to the manner in which the SDU operates or contrary to any other higher policy under which the SDU operated?

MR MAZWI: No, nothing was contrary to anything.

MR ZILWA: Now, you say given the situation that was prevailing at the time, when you carried out the act that you did, you thought you were acting in your capacity as an SDU to protect?

MR MAZWI: That is correct sir.

MR ZILWA: Did I understand you correctly in saying you thought your action was such that it would influence even other would be assassins of your leaders, to desist from so doing and as such you were acting within the scope of what your SDU's are all about?

MR MAZWI: That is correct sir.

MR ZILWA: Did I also understand you correctly in understanding you to be saying because of the information you had given, you thought that any white person excluding of course women and children, who would be in that area, would be part of the enemy that was destabilising Port St Johns and which constituted your targets?

MR MAZWI: That is correct sir.

MR ZILWA: I want us to get this clear. If you knew that the party that you ended up attacking, in fact was a fishing party, amongst which there were children, if you had known that before the attack, would you have carried on with the attack?

MR MAZWI: I hope we would not even begin to do such a thing, if we knew.

MR ZILWA: You must be very careful with your choice of words Mr Mazwi. When you say you hope, what does that mean?

MR MAZWI: I want to say I am sure, but in Xhosa that language is accepted.

MR ZILWA: Okay. Now, in acting as you did, did you consciously did contrary to the established policy of the ANC?

INTERPRETER: Could the speaker please repeat the question?

MR ZILWA: In carrying out the operation as you did, did you consciously act, knowingly act contrary to the established policy of the ANC?

MR MAZWI: No, that is not true sir.

MR ZILWA: Thank you Mr Chairman, I've got no further questions.

NO FURTHER QUESTIONS BY MR ZILWA

ADV SANDI: Mr Mazwi, just one or two questions from me. You say you had no time to investigate and verify the available information about the people who were staying at the bungalows. Why was that? Why was that, why did you think you had no time to do that?

MR MAZWI: Our problem was this, most of us who were involved in that operation, we were not familiar with that place, but we had to ensure our safety before. Therefore it was difficult for us to investigate what was happening. We were not to be involved in any prolonged investigation.

We took it that the first investigation was just enough for us to start our job.

ADV SANDI: Would I be correct to infer from that, you gentlemen were in a great hurry and you were quite emotional, you wanted to simply retaliate the death of your leader?

MR MAZWI: I cannot dispute that sir, and I cannot agree because it was just a combination. We were just in a hurry, that was not good news. What happened, was not actually a good thing.

ADV SANDI: When you look back in retrospect, do you regret having ambushed innocent fishermen who were just on holiday in that area? Do you have any regrets about that?

MR MAZWI: I feel very bad sir to know that those were innocent people, I regret so much. Though at the time, I did not know that those were holiday makers.

ADV SANDI: Thank you Mr Chairman.

ADV DE JAGER: Mr Mazwi, we had a past in this country which culminated in a war between the people in South Africa because the white people had the political power and the black people, didn't have the political power in the South African parliament, isn't that so?

MR MAZWI: That is correct sir.

ADV DE JAGER: And because of that conflict, the people of South Africa were at war with each other?

MR MAZWI: That is correct sir.

ADV DE JAGER: And that war in fact was a war between the whites in South Africa and the blacks in South Africa with a few exceptions?

MR MAZWI: That is correct sir.

ADV DE JAGER: And on that day, you acted as a soldier in that war, or didn't you act as a soldier? As far as you were concerned?

MR MAZWI: I acted as a soldier. Please explain sir.

ADV DE JAGER: Well, you took up a gun and you killed people and that is what soldiers usually, or what is part of their job?

MR MAZWI: That is correct.

ADV DE JAGER: And fortunately that war in South Africa has come to an end?

MR MAZWI: That is correct.

ADV DE JAGER: And all of us, including the victims here, would try in future to avoid such a war again?

MR MAZWI: I would be happy sir.

ADV DE JAGER: And that is what this Committee and the Act is trying to achieve, to get reconciliation.

MR MAZWI: That is so sir.

ADV DE JAGER: And you have told us that in future you will try to see whether you could contribute something to that reconciliation.

MR MAZWI: I am very much willing sir.

ADV DE JAGER: And I hope although the sorrow may be deep, that even the relations of the victims would try to contribute to a better future for all of us in this country.

MR MAZWI: That is my wish sir.

ADV DE JAGER: And it is true that you have killed innocent people on that day, but unfortunately that is the situation in a war. On both sides, innocent people were killed in that war? Thank you.

ADV SANDI: What was your response to that Mr Mazwi, do you agree that innocent people get killed in a war, on both sides?

MR MAZWI: That is correct sir.

CHAIRPERSON: Yes, thank you.

WITNESS EXCUSED