Amnesty Hearings

CHAIRPERSON: Who is next?

MR SAMUELS: I call Kifuwe Michael Nhlapo. On page 2, it's the last name of the list applicant 7303, page 187 of Volume 2.

CHAIRPERSON: What number?

MR SAMUELS: 7303/97.

ADV MOTATA: May you assist me with the page once more please?

MR SAMUELS: Page 187, Volume 2.

ADV MOTATA: Thank you.

CHAIRPERSON: What language would you prefer to use?

MR NHLAPO: Zulu.

KIFUWE MICHAEL NHLAPO: (sworn states)

MR SAMUELS: Mr Nhlapo, are you 22 years old?

MR NHLAPO: Yes.

MR SAMUELS: And are you a member of the ANC?

MR NHLAPO: Yes that is correct.

MR SAMUELS: And during the early 1990's you were a member of the self defence units in Thokoza, is that correct?

MR NHLAPO: Yes that is correct.

MR SAMUELS: Who was your commander?

MR NHLAPO: It was Ben Mashinini.

MR SAMUELS: You are applying for four offences, murder, attempted murder, kidnapping and possession of a firearm, is that correct?

MR NHLAPO: Yes that is correct.

MR SAMUELS: Now the kidnapping, who gave the instructions a kidnapping?

CHAIRPERSON: No we don't know if there were instructions.

MR SAMUELS: Did anybody give you instructions to carry out these events or acts?

MR NHLAPO: Yes there is someone.

MR SAMUELS: Who instructed you?

MR NHLAPO: It was Ben Mashinini.

MR SAMUELS: Now the kidnapping, what did he tell you to do?

MR NHLAPO: He told us to go and look for Sibongele.

MR SAMUELS: Right, describe in your own words what happened?

MR NHLAPO: We left the danger zone, taken the direction of Extension 5, looking for Sibongele. We found her there, we tried to bring her back. She struggle, we forced her. We first started at her place. There was another lady who was there. We took that lady with, we went back to the danger zone. When we arrived there I was standing outside and myself

and Joseph ...(intervention)

MR SAMUELS: When you say you arrived there, where did you arrive?

MR NHLAPO: There was a house that was vandalised.

MR SAMUELS: What house was that?

MR NHLAPO: It was at Section F.

MR SAMUELS: Continue, you said we arrived there, who is we?

MR NHLAPO: It was myself, Joseph, it was Jabu, Mdmase, Maseven, Mavi and M'Afrika.

MR SAMUELS: Were there other people as well?

MR NHLAPO: Yes there were other peoples but I cannot remember their names.

MR SAMUELS: When you got to this house describe what happened?

MR NHLAPO: Mdmase came, got into the house and with these ladies who were standing outside, we were waiting, we were waiting there to see the police. We were safeguarding the place, I don't know what happened inside the place.

ADV MOTATA: If you could just take it slowly, the interpreters can't keep pace with you. If you could slow down a little please?

MR SAMUELS: You say you were standing outside the house, continue?

MR SAMUELS: We were standing outside, myself and Joseph and the others went into the house. When they went into the house they were supposed to shoot Sibongele and her sister. As we were waiting outside, nothing happened. As time went on the ...(inaudible) came out of the house running and he said nothing. When he left the house I saw M'Afrika leaving the house also. After some time Jabu came also. Jabu asked me if the job was done already in the house. I told Jabu that I had nothing since I've been standing there but nothing happened and Jabu got into the house also.

ADV DE JAGER: But I understood you now to say you were standing outside the house with Joseph, is that correct?

MR NHLAPO: Yes that is correct.

ADV DE JAGER: After a while Doctor came running out of the house, is that correct?

MR NHLAPO: Yes that is correct.

ADV DE JAGER: And after a further while M'Africa also came out of the house

MR NHLAPO: Yes that is correct.

ADV DE JAGER: And a little later Jabu came out of the house?

MR NHLAPO: Jabu came from another direction. He got into the house, I heard that they were arguing inside. We were then standing next to the door, we could hear that he was arguing with them and he told them that they were not actually doing what they were told and I don't know what is that they were doing. We heard a first gunshot and after some time two shots rang again and the last one and Jabu left the house.

MR SAMUELS: ...(inaudible) when he left the house?

MR NHLAPO: When he left the house he told Mdmase to finish up the job because his bullets were finished at the time.

MR SAMUELS: And where did Jabu go?

MR NHLAPO: Jabu took the same direction that he came from.

MR SAMUELS: What happened?

MR NHLAPO: After some time I heard a gunshot from the AK47 and one lady came out of the house, I don't know which one was it between the two ladies and she ran away and when she was running away I shot.

MR SAMUELS: You say you shot?

MR NHLAPO: Yes.

MR SAMUELS: How many times?

MR NHLAPO: Two times.

MR SAMUELS: What weapon did you have?

MR NHLAPO: It was a pistol.

MR SAMUELS: Okay, you shot at her, did she fall down?

MR NHLAPO: No she did not fall.

CHAIRPERSON: Then this lady that you shot at was that one of the two ladies that had been kidnapped?

MR NHLAPO: Yes.

CHAIRPERSON: Are you sure? Are you sure?

MR NHLAPO: Yes I'm sure.

CHAIRPERSON: Now when you saw this lady, was she full of blood or what?

MR NHLAPO: I did not see because it was dark, it was in the evening.

MR SAMUELS: Now you say this lady didn't fall, what happened to her?

MR NHLAPO: We chased her, we brought her back to the house and he was shot at in the house. It was myself and the other comrades that were there.

MR SAMUELS: You say you chased her and you ...(intervention)

INTERPRETER: The interpreter did not hear the last words of the applicant.

CHAIRPERSON: Just repeat what you said?

MR NHLAPO: We brought her back to the house and I must had took her to the house and we left the place and I must have shot her and she came back to us and she told us that the job was done and we left the scene.

MR SAMUELS: Thank you, that's the evidence of the applicant.

NO FURTHER QUESTIONS BY MR SAMUELS

CHAIRPERSON: When the lady was brought back to the house after escaping, did you go into the house or did you still stay outside.

MR NHLAPO: We waited outside because we knew that some people would be standing outside and the others were to be inside so we planned that I would be standing outside.

CHAIRPERSON: What was the purpose of you standing outside?

MR NHLAPO: I was watching for in case the police - I was watching for in case one of them tried to run away and the police also.

CROSS-EXAMINATION BY MR SWANEPOEL: Can I just make sure, who gave you the instructions to go and fetch Sigongele?

MR NHLAPO: It was Ben Mashinini.

MR SWANEPOEL: Now on page 192 of the bundle where your application is bound, paragraph 11(b) or 11 in general or 11(b) specifically, you state that it was done on order of commander Extension 2, was that Ben?

MR NHLAPO: Yes that is correct, but the one that is stated here is not Ben.

MR SWANEPOEL: Now who is he?

MR NHLAPO: Here they are talking about Meneer.

MR SWANEPOEL: Who was he?

MR NHLAPO: Meneer was just a commander, not full time commander, he was just assisting Ben but the person who would give us correct instructions was Ben.

ADV MOTATA: When you mean the person stated here, who filled in this application form?

MR NHLAPO: I'm the one who requested for this form but I did not mention Meneer's name.

ADV MOTATA: Yes I say I don't know if I heard you correctly, you said the person mentioned here, written down here is not Ben, I say who wrote this out, for instance this 11 who wrote out what we see there Extension 2, Commander Extension 2, who wrote that out?

MR NHLAPO: Yes it's true that we got instructions from the Commander of Section 2 but I don't know anything about Meneer giving us instructions that I stated that clearly that Ben gave us instruction, Meneer was just a commander that was full time and the one was actually assisting Ben, this is new to me.

CHAIRPERSON: All the question he's asking, who filled in this?

ADV DE JAGER: Who wrote it there, whose handwriting?

MR NHLAPO: That is not my handwriting. The person who was there was George, he is the one who fetched me from my home.

MR SWANEPOEL: So do I understand you correctly that Meneer had nothing to do with this, the events you're giving evidence about?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: And when Ben gave you instructions did he tell you who to go and kidnap?

MR NHLAPO: Yes he did.

MR SWANEPOEL: Right now look at page 189 of your application, in paragraph C the name of your victims is asked and you say "I know", why do you say so?

MR NHLAPO: This is new to me also.

MR SWANEPOEL: Now look at page 193 of your application, is that your signature at the bottom?

MR NHLAPO: Yes that is my signature.

MR SWANEPOEL: And did you give your signature under oath at the police station as appears on page 194?

MR NHLAPO: No, I did not take any oath, I was just ordered to sign.

CHAIRPERSON: Page 1 that also happens.

MR SWANEPOEL: As you please Mr Chairman.

Now look at page 190 of your application. You gave some exposition of your activities as a member of the SDU on that page, is that correct?

MR NHLAPO: Will you please read it to me because I do not understand English. Please read out to me.

ADV MOTATA: The other thing before you proceed Mr Swanepoel, we already know that he did not fill in this form. I say when doing that, bear that in mind. I'm not curtailing you in any way.

MR SWANEPOEL: As you please. Why is this event that you gave evidence about not mentioned anywhere in this application?

MR NHLAPO: I don't know that is a question I have in mind also.

MR SWANEPOEL: Alright, in any event, what did Ben tell you to go and do?

MR NHLAPO: He told us to go and fetch Sigongele from Section 5 and shoot her.

MR SWANEPOEL: He did tell you to fetch anybody else and shoot anybody else?

MR NHLAPO: Yes that is true, it was Sibongele and her sister. At Extension 5 it would be Sibongele and Sibongele only.

MR SWANEPOEL: Sorry what did you say?

MR NHLAPO: The instruction was issued to fetch two people but I at Extension 5 there was only Sibongele and her sister was in her house at Extension 2 and we went there also. At Extention 5 we went to fetch Sibongele and her sister was somewhere else and we went there also to fetch her.

MR SWANEPOEL: Now when you fetched her and you took her away from Sibongele's house, did everybody go along to the house in Section F?

MR NHLAPO: The people who were in my company yes, except Mogoera, Vuya and Jaba. The commander told them to go back because they were not armed and the people who were armed had to proceed.

ADV DE JAGER: Yes, you were armed. You were armed?

MR NHLAPO: Yes I had a firearm.

ADV DE JAGER: And Joseph?

MR NHLAPO: Yes he was also armed.

ADV DE JAGER: What kind of firearm did he have?

MR NHLAPO: It was a pistol.

MR SWANEPOEL: And when you proceeded to the house in Section F you stayed outside the whole time, is that correct?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: You also gave evidence that when after Doctor left and M'Africa left, Jabu came from a certain direction and entered the house and you heard them arguing inside, is that correct?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: Now tell us, what did you hear inside the house before Doctor left?

MR NHLAPO: I heard nothing before Doctor left, the only thing that we were waiting for in the house, we were waiting to hear the gun shots, that's all.

MR SWANEPOEL: But you heard nothing at all, not even screams?

MR NHLAPO: No.

MR SWANEPOEL: Even though if someone had screamed you would have heard that?

MR NHLAPO: Yes we would be able to hear if someone is screaming?

ADV MOTATA: How far were you when you stood guard from the actual door of the house, how far were you?

MR NHLAPO: Those yards are so small, we were inside the yard, maybe it was a distance from these tables to that corner of the hall there, the distance from the wall and the others were actually surrounding and the others were watching from the other side.

INTERPRETER: He pointed the distance from the corner of the table towards the corner of that wall just behind the table that the table where the panel is, Sir.

MR SAMUELS: Shall we estimate at four metres? Five metres? Eight metres.

MR SWANEPOEL: And then all of a sudden Doctor came running out of the house?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: And then Mafrica came - left the house as well is that correct?

CHAIRPERSON: Did Doctor say anything when he left the house?

MR NHLAPO: He said nothing. He left running.

MR SWANEPOEL: And then Jabu came into the house from another direction, is that right?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: Did you hear shots inside the house while Jabu was there?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: How many shots.

MR NHLAPO: Four times, four shots.

MR SWANEPOEL: And then, did Jabu leave?

MR NHLAPO: Yes he left after his firearm ran short of bullets and he instructed Mdmase to finish off the job.

ADV DE JAGER: I don't think you'll have much success in cross-examining him, he was sitting in the hall listening to the previous witness so he know about the running out of bullets, he knows everything that the previous ones have testified about, he is repeating the same evidence.

MR SWANEPOEL: As you please, Mr Commissioner, the only part that I'm getting to is the part where the one girl apparently ran away, escaped after Jabu had left the house. That's new firstly and secondly, in the light of Jabu's evidence highly unlikely.

CHAIRPERSON: Why unlikely?

MR SWANEPOEL: Well he testified that he shot both of them, he shot Sibongele twice and that he left both of them lying on the floor instructing one of these colleagues to go in and finish the job and in that sequence somewhere the one still ran away got carried back and then got shot at again. It doesn't take the matter any further apart from credibility. As you please Mr Chairperson.

Now you heard as was correctly pointed out by the Commissioner that you were in the audience when Jabu gave evidence and he said when he left they were both lying on the floor and they were both shot, is that correct?

CHAIRPERSON: I think for the purposes of the question and what seems to be the point you're leading up to, Jabu also said is that he saw one of them moving so it wasn't as if to say the one was shot and totally incapacitated and hence he gave instructions or asked someone else to finish the job as he put it.

MR SWANEPOEL: As you please Mr Chairperson. So when Jabu left, both of the girls were shot, both were lying on the floor, Jabu saw one of them moving and that's why he instructed one of your colleagues to finish the jobs, did you hear that?

MR NHLAPO: Yes I heard that.

MR SWANEPOEL: Now - and Jabu did not say anything about one of the girls running away from there, attempting to escape and being brought back to the house ...(intervention)

CHAIRPERSON: Well Mr Swanepoel, are you surprised? He had already left, if it did happen he wouldn't have seen it so it was understandable that Jabu wouldn't testify about that.

MR SWANEPOEL: As you please Mr Chairperson, as I remember the evidence correctly, Jabu's testimony was to the effect that immediately after he left his colleague entered the house with the AK47 and he heard the shots.

MS PATEL: That is the way I understand his evidence as well.

MR SWANEPOEL: As you please. Why didn't Jabu mention this escape attempt?

CHAIRPERSON: Mr Swanepoel, it's still - it's not self-destructive, he may have shot the other person.

MR SWANEPOEL: As you please.

CHAIRPERSON: Or may have missed as has seemed to be the case with every of these shotists.

MR SWANEPOEL: Let me ask you this way, did the girl escape before your colleague entered the house with the AK47 to finish the job?

MR NHLAPO: She left after Jabu had instructed the other comrade. Jabu told them they must finish off the job and he left and after Jabu and then we heard a gunshot and the lady ran away.

CHAIRPERSON: In that order, you heard a gunshot and then she ran away?

MR NHLAPO: Yes that is correct. It was first the gunshot and the lady left the house running.

MR SWANEPOEL: So she ran away while your colleague with the AK47 was inside busy finishing the job, as you call it?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: After you caught her and you took her back and you - I assume there were further gunshots, did you look inside the house at any time before you left?

MR NHLAPO: No we did not get into the house. After the gunshot I was already outside and we were on our way out when Mdmase came. He told us that everything is done and then we left the place.

MR SWANEPOEL: How many of you were there at that time?

MR NHLAPO: There was a lot of us and I can't even remember the other people that's why I did not mention them because even the place that we were staying at, the danger zone, it's another place, it's a strange place.

MR SWANEPOEL: Now Jabu told this Commission ...(intervention)

MR NHLAPO: Yes it is dangerous.

MR SWANEPOEL: Jabu told this Commission that when he entered the house he fired shots and because of that all his comrades with the exception of Mdmase ran away. What do you say to that?

MR NHLAPO: Yes I agree.

MR SWANEPOEL: But yet your evidence is now that after Jabu left there were still a lot of you there?

MR NHLAPO: Yes that is correct.

MR SWANEPOEL: Could you explain that?

MR NHLAPO: It's not all of us who managed to run away. When we got into the house when he started shooting the other people got scattered all over and instead all of us managed to run away, I don't know where the others went to.

MR SWANEPOEL: Yes but Jabu's testimony was, that only Mdmase with the AK47 was left outside the door of the house.

MR NHLAPO: Will you please repeat the question?

MR SWANEPOEL: Jabu told this Commission that when he entered the house and started firing shots, all his comrades ran away and only Mdmase with an AK47 was left outside the house which is why you told Mdmase to go inside and finish the job?

MR NHLAPO: I do not understand when you say if he was outside the house or inside the yard. Please clarify that for me?

ADV DE JAGER: Mr Swanepoel, perhaps the crux of the matter is, was she caught and brought back and the only one except them who could tell us something about it is your client so what's your client's version, can you put it to the witness or to the applicant?

CHAIRPERSON: Or alternatively the other version is that the person that could have ran away may now be deceased? You yourself say that your client was rendered unconscious at some time.

MR SWANEPOEL: That is the difficulty I'm faced with Mr Commissioner, is that the full picture of events of that specific evening is not clear to my client. She remembers her sister being shot she saw her falling, she remembers herself being shot shortly after that and then she woke up in hospital.

ADV DE JAGER: I thought because she's living she must have been the one running away and that's not necessarily so.

MR SWANEPOEL: As you please. Mr Chairperson, the line of cross-examination is aimed at the credibility of this witness and if it's two directly conflicting versions.

CHAIRPERSON: Well Mr Swanepoel but the point of the matter is like we told you in chambers, that in our view the act as a particular purpose and if you have instructions to oppose the application, we would appreciate the fact that the opposition is based on facts, not an attempt to fish out possible problems that may not exist because that just wastes time. If there's something concrete with which you could oppose the application, by all means.

MR SWANEPOEL: As you please Mr Chairman.

Do you know what happened to the two women that was kidnapped after the shots were fired and you left the house?

MR NHLAPO: Will you please repeat the question? Do you want to know whether I went inside the house and checked? Will you please repeat that one?

MR SWANEPOEL: I want to know if you know what happened to any of the two sisters after you left the house together with your comrades.

CHAIRPERSON: Even if you heard from somebody afterwards about what happened. In other words do you know if one died?

MR NHLAPO: Yes, when we left the house and the master told us both of them were dead but after some time we heard that only one of them passed away, the other one was still alive.

MR SWANEPOEL: And did you hear anything else that happened that night apart from the death of the one girl?

MR NHLAPO: No.

MR SWANEPOEL: I have no further questions.

NO FURTHER QUESTIONS BY MR SWANEPOEL

ADV DE JAGER: Do you know anything about the fact that the two women were raped?

MR NHLAPO: Yes I heard about that the next morning. It was people who actually raped them were beaten, were shambokked and the commander instructed that they should be shambokked because the commander said it wasn't the order for them to rape, the order was for them to kidnap and kill.

ADV DE JAGER: How many people were shambokked?

MR NHLAPO: Two of them.

ADV DE JAGER: Who were they?

MR NHLAPO: Mdmase and Mafi.

ADV DE JAGER: Are they still alive? Mdmase, is he still alive?

MR NHLAPO: No and I don't know what happened to Mafi but I do hear from other people that he is still alive but Mdmase died.

CROSS-EXAMINATION BY MS PATEL: Just one point, in your application you state that the incident occurred in 1993, was that a mistake?

MR NHLAPO: It wasn't a mistake, this thing happened in 1993.

MS PATEL: Your co-applicant in this matter stated that this incident occurred two weeks before the elections in 1994. Could you explain?

MR SAMUELS: I thought it was Embrose May who said that he attacked a Mozambican citizen in the week of April 1994.

MS PATEL: I'm sorry.

Just for the record, how old were you at the time that this incident occurred?

MR NHLAPO: It's better if we start counting all of us because at the moment I'm 22.

MS PATEL: And regarding the people who were disciplined for this incident are you sure that it was only these two people?

MR NHLAPO: Yes I'm sure, I'm definitely sure about that, it was the only two.

MS PATEL: Was Mdmase inside the house at the time that the women were being raped, can you remember?

MR NHLAPO: Yes he was inside the house.

MS PATEL: Okay. Thank you Honourable Chairperson I have no further questions.

ADV DE JAGER: Mr Samuels, you'll have to address us on the question whether this application would cover this - the offences.

MR SAMUELSS: Yes, I will - up to all the hearings I heard, present formal argument on about three or four issues that have been raised.

ADV DE JAGER: ...(inaudible) any murder, any attempted murder, any possession of firearms in this application at all?

MR SAMUELSS: Yes quite correct.

CHAIRPERSON: May I just add that after all the evidence is led I will expect argument immediately.

CHAIRPERSON: Any questions?

MR SAMUELSS: No I close my case for this applicant.

CHAIRPERSON: Thank you Sir.

WITNESS EXCUSED