ON RESUMPTION
CHAIRPERSON: Mr Motepe we have been informed that you will be appearing for Mr Sishaba. Would you be kind enough to state yourself again for purposes of the record?
MR MOTEPE: My name is Adv Jabo Motepe. I am appearing on behalf of the applicant in this matter.
MS THABETHE: I'm Ms Thabile Thabethe for the TRC. Maybe I should put it on record as well that I'm representing the interests of the victims as well.
CHAIRPERSON: Thank you for bringing that to our attention. Mr Motepe, are you in a position to commence with this application?
MR MOTEPE: I am in a position.
CHAIRPERSON: You may proceed to do so.
MR MOTEPE: As in the previous application I have already handed in a supplementary affidavit and there's nothing at this stage which we wish to add. That will be our evidence.
CHAIRPERSON: Have you had sight of your supplementary affidavit which has been handed up by Mr Motepe?
MR MOTEPE: Yes, I did see it.
JEWEL MSHLASHENE SISHABA: (sworn states)
CHAIRPERSON: Do you confirm that the facts contained in the supplementary affidavit handed up by Mr Motema are within your knowledge and are both true and correct?
MR SISHABA: Yes, I do confirm that.
CHAIRPERSON: This affidavit Mr Motema will be accepted as Exhibit E.
MR MOTEPE: Sorry for the interruption, it's Motepe.
CHAIRPERSON: Motepe, thanks. We'll accept it as Exhibit E. Is it C? How come at page 133 I have an Exhibit marked D? Was that a mistake?
MR LAX: We corrected it to B.
CHAIRPERSON: It will then be Exhibit C. Mr Motepe do you wish to lead your witness on any particular aspect of his supplementary affidavit?
MR MOTEPE: Perhaps I should ask him to clarify further on the aspect on the last hearing.
CHAIRPERSON: Yes, will you lead him in respect of what you want him to clarify us on?
MR MOTEPE: So I shouldn't lead him on that?
CHAIRPERSON: I say you must lead him on what you want him to clarify to this Committee.
MR MOTEPE: As the Committee pleases.
CHAIRPERSON: I suppose that will relate to paragraph 9 of his supplementary affidavit?
EXAMINATION BY MR MOTEPE: Mr Sishaba, on the 10th of February of this year, that is 1999, you attended a hearing at Mayfair here in Johannesburg and you gave evidence in there, is that correct?
CHAIRPERSON: That is correct.
MR MOTEPE: Now, can you explain to the Amnesty Committee here what went wrong in that hearing?
MR SISHABA: What happened there was that my counsel informed me that my statement at the Truth Commission should not differ from what I stated in Court, that is that I should make one and the same statement.
MR MOTEPE: What, that you repeat what you testified in High Court trial?
MR SISHABA: Yes. that's correct.
MR MOTEPE: Now, didn't you understand - or did you understand what the process of Truth and Reconciliation Commission was all about? Did he explain that to you?
MR SISHABA: My counsel did not explain it to me properly that I should speak the truth here in the Truth Commission. What he told me was that my evidence in Court is before the Truth Commission, therefore I should not deviate from that statement.
MR MOTEPE: At the moment do you understand what this process is all about?
MR SISHABA: Yes, I know now.
MR MOTEPE: Do you understand that you have to tell the entire truth, irrespective of what you said in the High Court, but you must tell the truth, exactly what happened in this incident. Do you understand that?
MR SISHABA: Yes, I do understand that.
MR MOTEPE: And do you confirm that you have told the truth in this instance? The supplementary affidavit, is that the truth?
MR SISHABA: Yes, that is the truth.
CHAIRPERSON: Mr Motepe, may I just be given an opportunity to confer with my members whether they will prefer, in view of the fact and in the light of the fact that we have in our midst victims who are present and who are here because they intend to oppose on substantive issues, the application brought by Mr Sishaba, whether it will not be advisable for you to simply read out the entire affidavit because it is not that long, just to enable the victims to have a background of Mr Sishaba's supplementary affidavit and to be on the same wavelength with what is contained in the supplementary affidavit. May I be just given a second to do that?
Mr Motepe I think the Committee would like you to simply read out the affidavit. We know this has already been confirmed as being accurate and as being within Mr Sishaba's personal knowledge, just to enable the members of the public, particularly the victims, to be informed of the contents of the affidavit because they are not literate. Even if we were to make available copies for them to read, the affidavit is in English, whereas if you read, it will be translated in Zulu as I believe they are Zulu speaking, that is the victims, the relatives of the victims.
MR MOTEPE: Since he has already confirmed the contents, perhaps I should start with paragraph 2, from the background onwards. It reads as follows
"I am a paid up member of African National Congress, that is the ANC, and have been since 1982. I join Umkhonto weSizwe..."
...(intervention)
CHAIRPERSON: May we interrupt you, to take cognisance of the fact that what you read has to be translated. Just give them an opportunity to be able to translate what you are reading to the members of the public and the relatives of the victims.
MR MOTEPE
"I joined Umkhonto weSizwe, MK, on the 2nd March 1998 and remained a member until its disbandment in 1996. When I came back from exile the situation in Tembisa was riddled with violence. The community was being terrorised, with the full knowledge of the police forces and at times with their help. Our communities, together with the ANC, decided to form Self Defence Units, that is SDUs, in order to protect our communities.
Around 1993 there was a gang of criminals operating in Tembisa known as the Toaster Gang. This gang was linked to Inkatha Freedom Party, or the IFP and acted in cahoots with the same IFP in terrorising the community. Among others, this gang used to murder innocent people, rape women and rob people of their property. One of the members of this gang was Mr Boy Buthelezi and he was, to my knowledge, a leader of this particular gang. He was involved in many of the heinous acts against our community together with his gang. To name a few, though not going into much detail, Mr Boy Buthelezi and his gang, killed the wife of Mr Dlamini. The same gang, specifically Mr Buthelezi, murdered the son of Mr Johnson Nqoebe and also shot Mr Nqoebe's wife, rendering her a cripple. Miss Angeline Ncie was raped by Mr Buthelezi and his gang and Miss Ruth Matsina was raped by Mr Buthelezi and his gang. She was then taken to Hillbrow by Mr Buthelezi and kept there for 5 to 6 days as Mr Buthelezi's sex slave. I can mention more incidents if so required, but for now I believe that the above suffices. May I mention further that all people mentioned above, that is Mr Buthelezi's victims, gave their testimony during my High Court trial.
Coming to the incident: On 25th October 1993 I was at home when I heard gunshots. As I was on duty to patrol as a member of the SDU, I went outside to investigate. I then met one Nhlanhla Ncala who looked frightened. He told me that he was from the shops and that three members of the Toaster Gang just robbed the shop belonging to Miss Sweetness Makosazana Nhlapo. That they also robbed him, that is Nhlanhla of his wrist watch and money. Further that Mr Buthelezi was part of the three and had pointed a firearm at him.
I armed myself with an AK 47 and live rounds of ammunition. I proceeded towards the crime scene, that is the shops. I saw three men brandishing rifles and Nhlanhla confirmed that those were the culprits. Realising that they were armed, I decided to follow them at a safe distance where they would not suspect me.
They arrived at house No 25, Esangweni which is a sort of a tavern and commonly referred to Isipoti in the township. They bought alcohol there and stood outside leaning against the wall of the said house. Their rifles were also leaning against the wall. I then decided to enter house no 24 so that I can come just behind them and surprise them. I then exited just next to them and I came out pointing my firearm at them. Mr Buthelezi tried to pick up his rifle and he was too late. I shot him dead. His two friends, realising that they did not stand a chance against me, ran away. I could not shoot them as they mixed with the crowd, who might have been hurt, had I tried to fire more shots. I had all the intentions of killing the three of them. We had to protect our communities against these gangs. After this I waited round that area at a distance to observe what was happening. The police hippo van came and took the corpse away. Just after the police took the body away a crowd of people from Umthabega section came running. I suspect that it was after hearing the news of what happened. They wanted to burn the body of the deceased. They had in their possession a container with petrol inside. Among these people there was Mr Nqoebe, who I have already mentioned above. in my High Court trial he even disclosed this. However, they could not burn the body as it was already taken away by the police.
I then decided to go home. I stayed at home for about 6 to 7 days before leaving for 'Maritzburg and I never had any police inquiry.
I was only arrested in 1996 for this murder. My bail was set at R5 000 and the community arranged for that money and bailed me out.
The High Court trial: During my High Court trial I did not disclose the whole truth because I did not believe that the Court would be sympathetic to the problems that were being faced by our communities then. I had to tailor-make my evidence to avoid being sent to jail.
My first amnesty hearing: On 10th February 1999 at Mayfair, I appeared before the Amnesty committee. I gave similar evidence that I gave at the High Court trial, which was not entirely true. This was because my legal representative then advised me that the Amnesty Committee will be having the record from the High Court trial and if I diverted from what appears on the records, I might not get amnesty, that I might be accused of having lied under oath. It is clear to me now that I was ill-advised. My current legal representative has explained to me that even if I might have lied during High Court proceedings, I must now tell the truth. I beg the Committee's pardon for not being truthful in my previous hearing. I had not been properly advised about the nature of the hearings. I now understand the nature of this process fully and I have disclosed all that I know about this incident.
In conclusion: Things happened in the past which made some of us killers. Our communities were under constant attacks and we had to assist. Under normal circumstances, I would not have killed Mr Buthelezi, but things were not normal. In the light of the changes and specifically peace that we are experiencing in our country, I am prepared to a play a peaceful and meaningful role in our country. I wish to say to the family members of Mr Buthelezi that I am sorry about what happened and I hope that they understand the context of the incident. The offences for which I seek amnesty are murder, unlawful possession of firearm and unlawful possession of ammunition.
Signed by Mr Sishaba."
CHAIRPERSON: Thank you very much Mr Motepe. I take it that is your evidence-in-chief.
MR MOTEPE: That is correct.
NO FURTHER QUESTIONS BY MR MOTEPE
CHAIRPERSON: Ms Thabethe may we give you this opportunity to cross-examine Mr Sishaba, if you do have any questions to put to him?
CROSS-EXAMINATION BY MS THABETHE: Thank you Madam Chair.
Mr Sishaba you indicate that Mr Boy Buthelezi was a member of the Toaster Gang. Is that correct?
MR SISHABA: That is correct.
MS THABETHE: When did you know this, or maybe I should start with how do you know this, or how did you know about that fact?
MR SISHABA: The community knew that he was a member of the gang because they previously resided at Esangweni.
MS THABETHE: Sorry, can you repeat your answer, I didn't quite understand what you are saying.
MR SISHABA: The community knew that Boy was a member of the Toaster gang because they had previously resided at Esangweni.
CHAIRPERSON: May I just get clarity? You say the community knew that Boy was a member of the Toaster gang because they previously resided at Esangweni. I suppose that's Esangweni Section. When you say they previously resided, who are you referring to? Are you referring to the community at large?
MR SISHABA: Let me put it clearly. His parents resided at Esangweni therefore the community knew Boy Buthelezi.
CHAIRPERSON: So when you say they, you mean Boy Buthelezi and his family previously resided at Esangweni Section?
MR SISHABA: That is correct.
MS THABETHE: Just on that point Mr Sishaba, my instructions are that they did not stay at Esangweni Section, but Boy Buthelezi's parents stayed at Moedi Section. What is your response to that?
MR SISHABA: I do not dispute that but before they went to reside at Moedi, they stayed at Esangweni.
MS THABETHE: When would you say that they stayed at Esangweni? In which year, maybe?
MR SISHABA: Around the 70's, around 76, 77, 78.
MS THABETHE: Would I be correct if I say that during that time, that is 76, 78, there were no Toaster gangs at Tembisa?
MR SISHABA: Please repeat that question.
CHAIRPERSON: If it's put to you that during 76, 77 the Toaster gang was not in existence in the area, would you dispute that?
MR SISHABA: No, they did not exist in 1976.
MS THABETHE: And would it be correct as well to say they actually started operating round about 1993 as it is suggested in your affidavit at paragraph 3?
MR SISHABA: That is correct.
MS THABETHE: So you do understand that it goes back to my question again, because when you answered me you said you knew that Boy Buthelezi was a Toaster gang because their family stayed at Esangweni Section.
CHAIRPERSON: Previously stayed, that's what he said. The evidence is not that at the time the family was staying at Esangweni Section. They had previously stayed at Esangweni Section.
MS THABETHE: Maybe then my question still remains then. How did you know that he was a Toaster gang? Because if I understand you correctly, you're saying you knew because his family had previously stayed at Esangweni Section and by this time there were no Toaster gangs, at that time, so how did you know that he was a Toaster gang, in the 1993's?
MR SISHABA: As I mentioned before, the Toaster gang came into existence around 1991, 1992, it wasn't in existence in 1976.
MR LAX: The question is really a simple one and it's not going to help you to go around it. You're being asked a straightforward question. How did you know that Boy Buthelezi was a member of the Toaster gang? Not how did the community know, not how did hearsay evidence know, but how did you, the applicant before us now, know that? Do you understand the question?
MR SISHABA: I knew about it on the same day because I saw them with firearms in their possession and Nhlanhla came to me and pointed them out to me and he knew them because they resided together in the township.
MR LAX: The fact of the matter is that you didn't know until that day that Boy Buthelezi was a member of the Toaster gang.
MR SISHABA: That is correct.
MS THABETHE: I've heard you saying that Boy Buthelezi used to stay at Esangweni Section, is that what you said?
CHAIRPERSON: Where does this lead us Ms Thabethe? I think it's quite clear that according to his information the family previously once stayed at Esangweni Section. Are your instructions to the contrary, that they have never lived at Esangweni Section?
MS THABETHE: Madam Chair, he has just said that according to the community in 1993, Boy Buthelezi lived at Esangweni Section, so I just wanted to clarify that because I've got instructions to the contrary.
CHAIRPERSON: No, I think when you questioned him about his knowledge of Mr Buthelezi's membership with the Toaster gang, his response was that he knew that he was such a member because the community knew that the family previously stayed at Esangweni Section. But I thought that point had now just been clarified when Mr Lax put a pointed question whether it was at any given stage, prior to this incident, within his own personal knowledge that Mr Buthelezi was a member of the Toaster gang and his response was no, he didn't know him to have been a member of the Toaster gang, he only knew about that membership when he was told by Nhlanhla Ncala on the day of the incident in question, being the 25th October 1993. So I don't think there is anything to be borne out by proceeding with that line of cross-examination unless you have instructions to the contrary, you have instructions that the family never resided at Esangweni Section.
MS THABETHE: Well Madam Chair, I'm indebted to you but I think I understood him wrongly. I thought he was saying that you know the community at Esangweni knew him to be a Toaster gang because he also lived there during 1993.
CHAIRPERSON: He didn't specify the time, he said previously they once stayed.
MS THABETHE: Okay. I am indebted to you, Madam Chair.
CHAIRPERSON: You are welcome.
MS THABETHE: Coming to the incidents that you've stated at paragraph 3, Mr Sishaba, where you say that Mr Boy Buthelezi killed the wife of Mr Dlamini, murdered the son of Johnson Nqoebe, raped Angeline Ncie, all those incidents, and kept her for six days as a sex slave, how do you know this? How do you know that Boy Buthelezi did all of those incidents?
MR SISHABA: I knew that when they came to court to present evidence during my trial.
MS THABETHE: Can you maybe remember when these incidents took place? The ones that are stated in your paragraph 3?
MR SISHABA: No.
ADV BOSMAN: May I just interrupt here for a moment please, Ms Thabethe? Mr Sishaba, I don't quite understand. These incidents referred to in 3.1, 2, 3 and 4, the rape of Miss Ncie, the rape of Miss Matsina etc., did you know about this at the time when you shot Mr Buthelezi?
MR SISHABA: No, I did not know about them.
MS THABETHE: You wouldn't even know the year when these incidents took place?
MR MOTEPE: Madam Chair, if I may come in? I believe the applicant has already said no to that particular question.
CHAIRPERSON: Let's give Ms Thabethe more room. I hope it will be a very limited room, Ms Thabethe. I cannot understand the purpose of your questioning, but I will allow you.
MS THABETHE: Wouldn't you know even the year when these incidents took place? I understand you don't know when they took place, but wouldn't you maybe know the year when they took place?
MR SISHABA: No, with regards these other incidents I would not know when they happened, I just know about the one in which I was involved.
MS THABETHE: You see, why I asked you this question Mr Sishaba, it's because it's my instructions that in 91 - 93, Mr Buthelezi was in jail. Do you have any knowledge of this? From 91 until January 1993, let me clarify.
MR SISHABA: I don't think he would have any knowledge of that Ms Thabethe, he has already conceded that he is only aware of these incidents pursuant to the evidence that was given during his criminal trial otherwise at the time when the incidents in question occurred, this is the 25th October 1993, he didn't know that Mr Buthelezi was a member of the Toaster gang, he didn't know anything about his involvement in his capacity as a member of the Toaster gang and as far as I'm concerned, the incidents numerated here are incidents which have no bearing whatsoever with regard to the issues we have to deal with and must be disregarded as if they are pro non script.
MS THABETHE: Thank you, Madam Chair, even though Madam Chair, I just wanted to put it to him because those are my instructions.
CHAIRPERSON: Yes, I understand.
MS THABETHE: If the Committee can bear with me, I'm just trying to collate my questions. Thank you. Mr Sishaba, I understand from your affidavit that you were ill-advised, or you were not advised properly with regard to the evidence that was led in front of this Committee before. Would you say everything you said was not correct, or can I ask you questions on what you had said before? Mr Sishaba?
MR MOTEPE: They are still translating for him.
MR SISHABA: As I was informed by my counsel with regards to the affidavit, this is the correct version of events, but with regards to what happened prior in February, it was not true. I have only spoken the truth now.
MS THABETHE: You see, why I'm asking you this, it's because there are similarities between what happened in February, sorry in October 1993, there are similarities as to what happened in the transcript and to your affidavit today for example that you were told by people that they had robbed the shops and you proceeded on that information. You said that before and you've said it again. That's why I'm asking you if there are other aspects or should I proceed and ask you other aspects about the evidence that you gave before?
MR LAX: Ms Thabethe, shouldn't you ask him just to tell us what exactly is different between these versions that he's given and that way we won't have to try and anticipate and ask questions backwards and forwards? I think you put the ball in his court to tell you what's different.
MS THABETHE: I am indebted to you, Mr Lax. Can you maybe clarify what is different between the version you've given today or what is materially different between the version that you gave before and the version that you are giving today?
MR SISHABA: The difference is that what is before the Committee today is the truth. My counsel then did not afford me enough opportunity to tell my story. What he informed me of is that my testimony before this Committee should not deviate from what I said in Court.
MS THABETHE: Maybe I should just proceed and clarify what I need to clarify. In your previous evidence when you were asked about why you actually killed Boy Buthelezi, out of the other two that he was with, you said you had no intentions to kill him but you killed him because he took, you shot at him because he took a gun, or he attempted to take a gun. Would you still maintain the same version?
CHAIRPERSON: Just go through it chronologically maybe to assist also the Panel. Just go through that chronologically. I think the first thing, if I recall, was that the reason why he approached the three persons concerned, amongst whom was the deceased, was because his only motive was to demand for the return of the money robbed of Mr Ncala and also the money taken from the shop by those three persons. Then he proceeded to say, had the money been returned upon demand, he would not have shot the deceased, he would not have done anything to the deceased. Now, that seems to be the difference. That's the crux of the version given earlier on and the version being presented to this Committee today.
MS THABETHE: Thank you Madam Chair and maybe to quote the relevant pages to this for your ...(intervention)
CHAIRPERSON: And his benefit as well.
MS THABETHE: For your good reference as well Mr Sishaba. On page 143 of the transcript, page 143 and also on page 156, I will just read it briefly, Mr Sishaba.
CHAIRPERSON: Thank you Mr Thabethe for your indulgence, you may proceed.
MS THABETHE: Thank you Madam Chair. On page 143 you said that you followed these people and subsequently shot the deceased, the aim being to get back the money they had taken from the shop as well as the watch which they had taken from Nhlanhla Ncala and you wanted to tell them to take these things back but they could not because when you were talking to them one of them reached for the firearm. So maybe let's take it step by step. Would it be correct still, would you still maintain the same version that you followed them because you wanted to get the money back from them?
MR SISHABA: As I stated in my affidavit, my intention is to tell the truth. The fact that I followed them, I did approach them and inquired about the money that they robbed from the
shop and Boy attempted to reach for the firearm. My intention was to kill all of them but unfortunately the other two fled in the direction of a crowd and they mixed with the crowd so I could not shoot at them.
MS THABETHE: So are you saying in essence that it's not correct that you, maybe I should rephrase my question. Would it be correct then to say that you shot at Boy Buthelezi specifically because he is the one who had reached for his firearm?
MR SISHABA: That is correct.
MS THABETHE: Further, maybe I should clarify. If he had not reached for his firearm, would you still have proceeded and shot him?
MR SISHABA: With regards to that, even if I had not shot at him the community might have burned him or done something else to him.
CHAIRPERSON: Mr Sishaba please assist us by confining your responses to questions put to you in a pointed fashion. No question has been put to you to solicit information what would have happened to the deceased had you not acted the way you did. That was not the question that was put to you. The question that was put to you was, if he hadn't reached for his firearm, would you still have shot the deceased? That was the question put to you. Answer and confine your response to that question and that question only.
MR SISHABA: I would have not shot at him.
CHAIRPERSON: You've just stated that your intention was to kill him, why wouldn't you have shot him if he had not reached for his firearm?
MR SISHABA: When someone reaches for a gun it's an indication that they want to kill you, that is why I shot at him.
MR LAX: Sorry, you haven't understood the question. The fact of the matter appears to be that you shot this man because he reached for a gun and the implication of that is that, and you've already answered this, is that but for the fact that he reached for his gun, you would not have shot him. Now what you are being asked to explain is, how is it possible to reconcile that answer with what is stated in your affidavit and what you've told us under oath? In other words, that it was your intention to kill all three of them. Do you understand the question?
MR SISHABA: Yes, I do understand now. As a member of the SDU my duty was to protect and defend the community and as such, if a person had committed an offence, we would shoot at that person. Those were the instructions given to us that if people like Toaster gang and the IFP, if they had committed an offence, we were supposed to shoot at them.
MR LAX: Carry on Ms Thabethe.
MS THABETHE: Can I proceed?
CHAIRPERSON: Yes, you may proceed.
MS THABETHE: Oh, okay. Madam Chair, I don't have any further questions per se, except that I should put it on record that my instructions with regard to the fact that Mr Boy Buthelezi was not a Toaster gang, they go as far as before 1993 because after 1993 my instructions are that he was staying at his grandparents' place at Umthabega Section. I just want to put that on record.
MR LAX: Sorry, do we infer from those instructions that they have no knowledge as to whether after that period he was a member of the Toaster gang and are therefore not in a position to admit or deny that, is that what we - do I understand correctly?
CHAIRPERSON: That is so, isn't it Ms Thabethe? He was not staying with his parents. His parents stayed Moedi Section. He stayed at Umthabega Section with his grandmother, so they wouldn't know whether at the day and time of the incident, he was or he wasn't a member of the Toaster gang. May I just get clarity on one issue? When did he first stay with his grandmother at Umthabega Section? When did he move from Moedi Section from his parental home to stay with his grandmother?
MS THABETHE: My instructions Madam Chair are that he was in prison from 1991 to January 1993 and my instructions are that from that time he stayed at Umthabega Section. Can I clarify that?
CHAIRPERSON: Can you also, can you find out what he was in prison for?
MS THABETHE: Madam Chair I was correct. He stayed at Umthabega Section with his grandparents as from January 1993 when he came out of jail. He was convicted of car theft.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Mr Motepe, do you have any re-examination to do on your witness Mr Sishaba?
MR MOTEPE: I do not have any re-examination.
NO RE-EXAMINATION BY MR MOTEPE
CHAIRPERSON: Thank you.
Mr Lax, do you have any questions to put to Mr Sishaba?
MR LAX: Mr Sishaba, I'm just trying to understand how you were badly advised by your previous counsel. You've told us that you understood that you had to stick to the story that you gave in the High Court. Have I understood that correctly?
MR SISHABA: That is correct.
MR LAX: And in what particular aspects did you have to stick to? Did he just say to you for example in general terms, well they know what you said in the High Court therefore you must stick to it? Is that what he told you? I'm just trying to be clear about this.
MR SISHABA: He told me that what I should state before the Truth Commission is what I stated in Court because if I say something different before the Truth Commission I will not be granted amnesty.
CHAIRPERSON: Can I just get clarity here? Was that said in the context of you having to continue with the plea of self-defence, that you shot the deceased because the deceased had reached for his rifle and that, had he not reached for his rifle, you wouldn't have shot him? Was that in relation to the plea of self-defence, which you had maintained during your criminal trial? Is it in that context, because that, I think, seems to be the crux of the matter.
MR SISHABA: That is correct.
MR LAX: You see my difficulty is this, that even here today you are sticking to that same version. You are basically saying that you weren't actually going to shoot this man but because he reached for his gun you shot him first and you had not intended to kill him. That's what you've told us today in your verbal evidence before us. So what's different between what you told us before and what you've told us today?
MR SISHABA: As I mentioned before, what I said previously was not the truth but the truth is what I am testifying about today, that is, my intention of approaching them was to kill all of them.
MR LAX: You see what - I hear you say that your intention was to kill all three of them. Why then did you answer Ms Thabethe's questions, and she was very careful when she asked you these questions, why did you answer that if he had not reached for his firearm, would you have shot him and your answer was "No, I wouldn't have shot him". You even went further than that. You said that maybe the community would have killed him, but it wasn't your intention to kill him at that point in time.
CHAIRPERSON: Mr Sishaba, didn't you correct yourself after I had intervened in that regard? Ms Thabethe, you can also correct me. My note also indicates that, that he subsequently said he had not understood your question properly and he went on to say it was because Mr Sishaba was the first one to reach for his gun otherwise his intention was to shoot them all, but he was the first person to reach for his gun that's why he was the first person to be shot by him.
MS THABETHE: Yes, that's what I understood, Madam Chair. Yes, I think he didn't understand my question.
CHAIRPERSON: Yes. your initial question.
MS THABETHE: Then you clarified.
CHAIRPERSON: That was my note, upon my intervention.
MS THABETHE: And then I left it there.
CHAIRPERSON: Ms Bosman can also assist us.
ADV BOSMAN: I'm just looking at my notes. I'm afraid I can't.
MR MOTEPE: I can also confirm.
CHAIRPERSON: I recall because I intervened at that stage.
MR MOTEPE: I can also confirm. I believe the question of Mr Buthelezi reaching for the firearm, it's about him being shot first and not the intention.
CHAIRPERSON: Precisely, that's the reason why he was shot first.
MR MOTEPE: Yes.
MR LAX: Thank you, that clarifies it. I must have missed that during the course, I don't know whether I couldn't hear properly or something.
CHAIRPERSON: It's unlike my colleague to do that.
MR LAX: No, I just didn't hear it. Yes, Chairperson, that was my only real concern. No further questions.
CHAIRPERSON: Ms Bosman?
ADV BOSMAN: Thank you Chairperson. Mr Sishaba, I just want you to clarify one matter for me. In your application form, if you turn to page 98 of the bundle, there you made no mention of what you had said in the High Court. Who assisted you to fill out this application form?
CHAIRPERSON: Who assisted you to fill the form? Your counsel is going to point you to page 98. Did you fill it on your own? You were asked a number of questions in this application form that is dated the 5th.
MR SISHABA: To be honest, somebody else filled it for me. It was Andros Ndlovo.
ADV BOSMAN: Who was he, Ndlovo?
MR SISHABA: Mr Ndlovo was also a member of the SDU, we worked together.
ADV BOSMAN: Did he explain to you what you have to fill out in the form, or did he simply fill it out for you?
MR SISHABA: He filled it in and he asked me several questions as he was filling it in but he didn't explain in detail what it was all about.
ADV BOSMAN: Thank you.
CHAIRPERSON: Mr Sishaba, where did you get the firearm that you used to shoot the deceased with?
MR SISHABA: I received it from the community in the township. Let me just explain. The community contributed R50 per family and the money was collected and given to our Commander Matebula who was the person responsible for organising weapons, firearms.
CHAIRPERSON: Where did you get the firearm? Did you get it from Comrade Matebula? You haven't responded to my question.
MR SISHABA: Mr Matebula bought the firearms but they were given just by the community.
MR LAX: Some person must have handed you the firearm. The community is an amorphous group of people, that's what we're asking you.
MR SISHABA: It was given to me by my Commander Matebula. We received the firearms in 1992.
CHAIRPERSON: Is it your evidence that since 1992 up to the time when you committed this offence, you were in continual possession of this firearm being an AK47?
MR SISHABA: No it was not always in my possession. We used to patrol on a shift basis and we would rotate the firearms accordingly.
CHAIRPERSON: Please explain to us in simple terms how you came to be in possession of the firearm you used on this occasion, in simple terms. If you were not in continuous possession of this firearm, then it makes my job a little difficult and it perturbs me to get the kind of response you are telling me. If you were working in shifts, there is no evidence to suggest that you had to return the firearm. I am just assuming from your response that you possessed the firearm from 1992 to 1993. Won't you just please just come to our assistance by explaining how you came to be in possession of the firearm, being an AK47 you used on the 25th October 1993. Do you understand my question? Where did you get the AK47 you used on the 25th October 1993 to kill Mr Buthelezi?
MR SISHABA: It was given to me by Matebula.
CHAIRPERSON: When precisely were you given this firearm by Mr Matebula?
MR SISHABA: He gave it to me. I had it from the 21st of October. I had it from that date. As I explained before, we used to patrol, there were many of us and we would do this on a rotating basis.
CHAIRPERSON: To your knowledge, how many people in your group were at any given stage given weapons by your commander Mr Matebula for purposes of patrolling in your community?
MR SISHABA: There were many groups of 10 people in each group.
CHAIRPERSON: Was each member in that 10 member group given an AK 47?
MR SISHABA: That is correct.
CHAIRPERSON: How many AK 47 did the Commander possess, in his capacity as the commander of the SDU unit in your area, or rather how many firearms were under his control in his capacity as an SDU member?
MR SISHABA: We did not only use AK47 but we also used pistols, 9mm, 38s, a variety, I could estimate over 100 firearms including pistols.
CHAIRPERSON: ...(indistinct) firearms, you've earlier testified that the community had contributed money towards their purchase.
MR SISHABA: That is correct.
CHAIRPERSON: What happened to the firearm you used to kill Mr Buthelezi? What happened to the AK47 after you had killed Mr Buthelezi?
MR SISHABA: After killing Mr Buthelezi I took the firearm back home. It remained in my possession for about 6 days. Thereafter I gave it to other SDU members and left for Nelspruit. After a while there was a raid on the township and those firearms were confiscated. Some of those firearms, when the conflict came to an end, were handed in to a police station.
CHAIRPERSON: Now you've testified that the reason why Mr Buthelezi was the first person to be shot by you was because he was the one who reached for a firearm. Where were the firearms of the other two members in the group?
MR SISHABA: They were leaning their firearms against the wall. As I was talking Mr Buthelezi attempted to reach for the firearm and the other two then fled. They escaped into a crowd and I could not then shoot because I could have shot at innocent people.
CHAIRPERSON: Mr Motepe, emanating from the question from the bench, do you have any questions in re-examination, to put to the witness and client, Mr Sishaba?
MR MOTEPE: All has been clarified, I don't need to put any questions.
NO RE-EXAMINATION BY MR MOTEPE
CHAIRPERSON: That being the case Mr Sishaba is it, I'm sorry Mr Motepe, is it your intention to lead further evidence?
MR MOTEPE: I wish to call just one witness on the question of the membership of this particular, the deceased, to the Toaster gang. I just wish to call one witness on that aspect.
CHAIRPERSON: Yes. And when do you contemplate leading that evidence?
MR MOTEPE: The witness is present.
CHAIRPERSON: Oh, we are indebted to you Sir.
MR MOTEPE: May I call him now?
CHAIRPERSON: You may do so. Mr Sishaba thank you very much for your evidence, you may step down now, you are excused.
MR SISHABA: I thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Motepe what are the full names of the person you intend to lead?
MR MOTEPE: The full names are Mr Richard Dlamini and he wishes to testify in Zulu.
CHAIRPERSON: Won't you assist him Mr Motepe by pressing the button so that his oath can be recorded?
RICHARD DLAMINI: (sworn states)
CHAIRPERSON: You may proceed, Mr Motepe.
MR MOTEPE: Mr Dlamini, did you know the deceased Mr Boy Buthelezi?
MR DLAMINI: Yes I knew him from a tender age.
MR MOTEPE: How did you know him?
MR DLAMINI: When I knew him, I knew him as a boy who was a delinquent, involved in unsavoury acts.
MR MOTEPE: Now Mr Buthelezi, when you talk about the delinquent things he used to do, what do you mean specifically in relation to this application, what do you mean?
MR DLAMINI: I am referring to gangsterism. As older people, we used to see him up and down doing all sorts of things.
MR MOTEPE: Mr Dlamini are you saying he was a member of a gang?
MR DLAMINI: Yes, he was a member of the Toaster gang.
CHAIRPERSON: Be careful not to lead him Mr Motepe, put questions that will elicit the kind of answers you want, don't put leading questions.
MR MOTEPE: As it pleases the Committee.
CHAIRPERSON: May I revisit, with your permission? Mr Dlamini, did you know whether Mr Buthelezi was a member of any gang?
MR DLAMINI: I knew when my wife was injured. I did not have certainty about it, but on the day that my wife was injured, I knew that he was in the company of the people who injured my wife.
CHAIRPERSON: You must listen to my question and only respond to what I want you to say. I haven't asked you how you know that he was a member of a gang. I wanted to know whether, to your knowledge, was he a member of a gang?
MR DLAMINI: Yes, he was a member of a gang.
CHAIRPERSON: My second question is, to your knowledge, to which gangsterism did he belong?
MR DLAMINI: The troublesome gang was the Toaster gang.
CHAIRPERSON: Where did you stay Mr Dlamini, in October 1993?
MR DLAMINI: At Umthabega Section.
CHAIRPERSON: And to your knowledge, how many gangsters operated in Umthabega Section during October 1993?
MR DLAMINI: I only knew of that one because it used to work closely with the IFP.
CHAIRPERSON: When did you become aware of Mr Buthelezi's membership with the Toaster gang?
MR DLAMINI: As I mentioned previously, I learned of it when my wife was killed.
CHAIRPERSON: When was that?
MR DLAMINI: On the 1st April 1992.
CHAIRPERSON: You may proceed, Mr Motepe.
MR MOTEPE: Madam Chair, I merely wanted to lead evidence on the question of membership, so that has been put into evidence by the witness here and I'm not proceeding any further with him.
NO FURTHER QUESTIONS BY MR MOTEPE
CHAIRPERSON: Mr Dlamini when your wife was killed in 1992, were you present?
MR DLAMINI: We were in the house.
CHAIRPERSON: And did you witness the killing of your wife?
MR DLAMINI: She was shot at through the window, we were inside the house.
CHAIRPERSON: Were you able to observe who had fired at your house?
MR DLAMINI: There were many, but you would just hear from kids telling you that we witnessed so-and-so at the incident, but as older people we were not aware of everyone who was a member, it was younger people who were aware of just who the members of the gang were.
CHAIRPERSON: Did you see Mr Buthelezi, the deceased during that incident?
MR DLAMINI: As I mentioned before, it's the younger people who knew. We were not really aware. I did not know, but it was the younger people who said who were involved.
CHAIRPERSON: You are not in a position to say that Mr Buthelezi was seen by you during the killing of your wife, you only heard from other people that it was his gang which was responsible for the death of your wife?
MR DLAMINI: Yes, that's correct.
CHAIRPERSON: That concludes your evidence?
MR MOTEPE: That is correct.
CHAIRPERSON: Thank you. Ms Thabethe?
MS THABETHE: Thank you Madam Chair.
CROSS-EXAMINATION BY MS THABETHE: Mr Dlamini when you were asked a question as to how you knew that Mr Buthelezi was a Toaster gang, you say you only knew when your wife was killed in 1992. That's correct, isn't it?
MR DLAMINI: That is correct.
MS THABETHE: And your wife was killed on the 1st April 1992, that's correct, isn't it?
MR DLAMINI: That's correct.
MS THABETHE: I want to put it to you Mr Dlamini that, maybe before I proceed with that question I should ask this one, is the fact that your wife was killed the only basis or the only reason for you to say that Mr Buthelezi was a Toaster gang?
MR DLAMINI: I would not know much in that regard, because you only hear from people what they witnessed. I was inside the house.
MS THABETHE: The only reason why you testified that he's a Toaster gang is because you heard people telling you that he was one of the people who was there when your wife was killed by the Toaster gang.
MR LAX: He's actually saying two things. He's saying that and he's saying that he's heard about other incidents, other people about what happened to them. That's what I understood him to be saying, so if you're going to put it to him you should put both propositions not just the one.
MS THABETHE: I think I would like to separate them. Is it your evidence, Mr Dlamini, that the first reason or the first basis for you saying that Mr Buthelezi was a Toaster gang, its because you heard people saying he killed your wife?
MR DLAMINI: As I mentioned before we were inside the house. There was a large group of people, so you cannot pinpoint any one person, but you hear rumours that so-and-so was in the company of those people.
MS THABETHE: Did you also hear anything about him being involved in other incidents?
CHAIRPERSON: Where is this leading to Ms Thabethe? Where is this leading to, this line of cross-examining?
MS THABETHE: I'm trying to find out what basis, Madam Chair.
CHAIRPERSON: But hasn't he already said in his evidence-in-chief that the reason why he knows this person to have been a Toaster gang is because of what he has heard from other people saying he was a member of the Toaster gang. It's not within his personal knowledge that he was a member of the Toaster gang. I thought that was pertinently and pointedly covered during his evidence-in-chief.
MS THABETHE: Okay thank you Madam Chair. Just to make a follow-up on that Mr Dlamini, I put it to you Mr Dlamini that Mr Boy Buthelezi was in prison in April 1992. Would you dispute this or would you agree with this?
MR DLAMINI: I would not really know about that because, as I mentioned before, it is the younger people who know who belongs to what gang. You as an older person, you stay at home.
MS THABETHE: Thank you Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe. Before we allow you an opportunity to re-examine, Mr Motepe, maybe it will also be in your favour to allow the Panel to ask questions so that in your cross-examination you will then be able to cover all the aspects that members of the Panel have also covered when putting questions to Mr Dlamini. Adv Bosman?
ADV BOSMAN: Mr Dlamini, do you know the reason for your wife's killing? Do you know why she was killed?
MR DLAMINI: I have three children who were comrades. They were always on the alert because they were ANC members. At that time any ANC Comrade was to be killed.
ADV BOSMAN: Did you know Mr Boy Buthelezi to be an IFP member, personally?
MR DLAMINI: No the IFP used to work in collusion with the Toaster gang.
ADV BOSMAN: Thank you.
CHAIRPERSON: Thank you Ms Bosman. Mr Lax.
MR LAX: Thank you Chairperson. Just, on the day that your wife was killed, was there a general attack in your area or was just your house targeted?
MR DLAMINI: No, Mathemba was killed because she was a chairperson of the ANC Women's League and it was alleged that the Dlamini family would also be killed because they were also members of the ANC. We were always in fear of our lives that we were going to be killed at any time.
MR LAX: So just two houses were targeted on that particular day?
MR DLAMINI: No, Mathemba was killed about a week before my household was attacked. I'm not certain but it was about a week or two.
MR LAX: This area that you lived in, was that predominantly one or other way a political area? In other words, did one or other political party have dominance in that area? Was it close to a hostel? Why was it under attack?
MR DLAMINI: It was not very far from the hostel. From the area you could see the hostel at the top. The township in which I was residing was allegedly called a comrade township where people were supposed to be attacked.
MR LAX: Thank you Chairperson.
CHAIRPERSON: Thank you. Mr Motepe, do you have any re-examination?
MR MOTEPE: I do not have any.
CHAIRPERSON: Mr Dlamini, you are excused as a witness. Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Motepe and Ms Thabethe I know the time is half past 4. Fortunately we do not have a person who is under the control and custody of Correctional Services. If you think, in your better wisdom, it's appropriate for us to proceed and finalise this matter today, the Committee is willing to accommodate you, otherwise we may have to adjourn until tomorrow morning.
MR MOTEPE: I believe we can proceed and finalise.
CHAIRPERSON: Let me just find out if it will be also appropriate for all my members to make themselves available until late. How late would you estimate this matter would take us to?
MS THABETHE: 5 o'clock.
CHAIRPERSON: I think the Committee has indicted its capacity to accommodate you. May I thank them before you express your gratitude because I know we are sitting with a member who has to travel quite a long distance.
Mr Motepe, does that conclude the evidence in support of Mr Sishaba's application?
MR MOTEPE: That is correct.
CHAIRPERSON: Ms Thabethe?
MS THABETHE: Thank you Madam Chair. Madam Chair, I have one witness to call. Can I go ahead and call her?
CHAIRPERSON: You may do so.
MS THABETHE: Thank you Madam Chair. I call Mrs Elizabeth Buthelezi.
ELIZABETH BUTHELEZI: (sworn states)
MS THABETHE: Madam Chair, can I be allowed to ask her questions?
CHAIRPERSON: Yes, you may do so.
MS THABETHE: Thank you Madam Chair. I have called you here for you to tell us about your son, Boy Buthelezi. I will ask you a few questions in relation to that and I'll require answers or response to that. May you please tell this Committee the relationship between yourself and Boy Buthelezi?
MS BUTHELEZI: This Boy is my son, the first son. Boy Buthelezi never stayed with us but he stayed with the grandparents in Umthabega. He used to come visit us and leave and go back to grandmother.
MS THABETHE: In 1991 until 1993 January, where was Boy?
MS BUTHELEZI: I've heard all sorts of things that have been said before this Committee about Boy. At the time when there was this rumour about the gangsters in the location Boy was in Modabi, in prison. He'd been sentenced for five years. We were in the Sotho Section, MoeDi Section, that is, and the grandparents were in Umthabega, that will be the Zulu Section. When we left home to visit Boy at Modabi prison, we've heard from him when he asked us as to all things that are going around in the location, namely gangsters, Toasters and so forth. The second one I would not know about as such but I remember him make mention of the fact that there are gangsters somewhere called Toasters. The second gang name he did not know. When we asked him as to who furnished him with all this information, he said from the inmates.
CHAIRPERSON: Okay, Ms Thabethe we are going to request you to take charge of the proceedings. You are asking questions and I suppose there is a purpose for asking questions.
Unfortunately Mrs Buthelezi is not responding to questions, so far put by you. Will you try and explain to her to confine herself to questions put. If you want an elaboration, explain to her that your further question will probably elicit that kind of elaboration, if so needed.
MS THABETHE: Would you like me to repeat any questions, Madam Chair?
CHAIRPERSON: No I just wanted to make you aware that if you don't take charge we are likely to be in a bus with no direction.
MS THABETHE: I am indebted to you Madam Chair.
When did Boy come back home from prison?
MS BUTHELEZI: Boy only served two years of the five years, so he got a parole and he was released.
MS THABETHE: When was that? Which year was that?
MS BUTHELEZI: I'm not too sure whether it was 1993 or 1994, my memory does not serve me correct in this one.
MS THABETHE: I think we'll help you. I think it will be 1993 because he passed away in October 1993.
MS BUTHELEZI: I don't remember, but around there.
MS THABETHE: But it was in the beginning of the year?
MR BUTHELEZI: No it was in the middle.
MS THABETHE: In the middle of the year?
MRS BUTHELEZI: I'm not sure if it's not December, it will be January, when he was released.
MS THABETHE: Where did he reside after that?
MR BUTHELEZI: He was with us at home and he left to live or stay with the grandparents.
MS THABETHE: At the time of his death, was he residing with the grandparents?
MS BUTHELEZI: Yes, indeed, because on the day when he passed away.
MS THABETHE: Now what the Committee is interested in is the time when he used to stay at the grandparents' place, would you be in a position to tell us whether he was a Toaster gang or not?
MS BUTHELEZI: No I would not agree or concur to the evidence that suggests he was a member because at the time the majority of the Toasters had lied dormant, in fact they were no longer active. When Nhlanhla was discharged there were no activities whatsoever in relation to the Toaster gang.
MS THABETHE: No further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: We would like to do things in an orderly way and we would still like you to sit for a few questions that will be posed to you from the attorney here. He will ask you a few questions in relation to the evidence that you have rendered before us. Just a few questions, don't panic, do not panic. Did you get me?
MS BUTHELEZI: Yes.
CHAIRPERSON: Mr Motepe do you have any questions to put to Mrs Buthelezi?
MR MOTEPE: I do have a few questions.
CHAIRPERSON: I hope they are few Mr Motepe, knowing very well that she is a victim.
MR MOTEPE: They are very few.
CROSS-EXAMINATION BY MR MOTEPE: Mrs Buthelezi, you testified that your son lived with the grandparents some time after he was released, do you know how long did he live with the
grandparents just before he died? In terms of months, do you know how many months?
CHAIRPERSON: Yes, we do know and you should know. The evidence is that he was released sometime in January 1993, he stayed for a month with them and the remainder was with the grandparents.
MR MOTEPE: I heard the mention of April as well, that's why I wanted clarity.
CHAIRPERSON: No, her recollection is not of the best but I think we can take note of the fact that she was able to at least try and place his return to around January 1993.
MR MOTEPE: I am indebted to the Committee.
MR MOTEPE: Ma'am, the time when your son was staying with the grandparents, you were not able to monitor his movements, were you?
MS BUTHELEZI: I knew Boy and the fact that he was staying with the grandparents and he would visit us quite often at home and some days after work I will stop by at grandparents' place and he will be there as well, or sometimes the grandmother will tell me that just stepped out.
MR MOTEPE: I do understand but your never knew specifically what company he kept, the kind of people he walked around with. You wouldn't be able to know that, is that correct?
MS BUTHELEZI: No, I will not be able to tell you that because even at the times he will come to my place, he will be alone or sometimes in the company of people we were quite familiar with and leave. Even at his grandmother's place, I will ask grandmother as to where he was and she will tell me, "he just stepped our and he'll be back shortly" and indeed sometimes the grandmother would have sent him to the shops. He'll come soon after.
MR MOTEPE: So on the 25th October 1993 you wouldn't know whether he was in the company of some people who were believed to be members of the Toaster gang, is that correct? You wouldn't know.
CHAIRPERSON: Mr Motepe, Mr Motepe, how would you expect her to have known that?
MR MOTEPE: Madam, she is saying that she was frequently told about the movements of her son and if she said before that she doesn't believe that her son was a member of the Toaster gang, now all I want to elicit is, can she say that her son was, if a person comes and says we saw your son with a member of the Toaster gang, can she deny that? She's not in a position to do that, that is all that I wanted to elicit.
MR LAX: Mr Motepe that's self-evident that she can't admit or deny that. I mean, is it really necessary to ask her these questions?
MR MOTEPE: One just wanted to make sure, not to err on the side of caution at least, but because, in the light of that I don't have any more questions.
CHAIRPERSON: Yes, I think I will appreciate if you no longer have questions.
MR MOTEPE: I do not.
NO FURTHER QUESTIONS BY MR MOTEPE
CHAIRPERSON: Ms Thabethe, do you still have more questions that you would like to ask Mrs Buthelezi?
MS THABETHE: No, I would just like to thank her for being brave to come forth and render the testimony which she did.
NO RE-EXAMINATION BY MS THABETHE
CHAIRPERSON: No, you are not excused yet. Please be seated. Thank you very much for coming to this Commission and rendering the testimony the way you know it. Most of all is the fact that we are a Committee that is trying to build and construct reconciliation in this country as we all know that there was once violence in this country. We do trust and hope that your coming forth will help you heal the wounds that you've sustained as a result of this incident or experience you've gone through.
The fact that you came here to be present through all this, we understand the pain that you suffered and endured as a result of the death of your son and you hear the applicant who is behind this giving evidence and you were present.
We do trust and hope that all this will help more especially to forget about the past and move on in the future and that your soul and your heart may just rest in peace and observe peace in the entire family as a result of this. Thank you, you are now excused.
WITNESS EXCUSED
CHAIRPERSON: Ms Thabethe, that concludes the evidence on behalf of the objectors?
MS THABETHE: Yes, Madam Chair.
CHAIRPERSON: Mr Motepe are we in a position to argue?
MR MOTEPE: Yes, I am in a position.
CHAIRPERSON: Yes, you may proceed to do so.
MR MOTEPE IN ARGUMENT: The applicant gave his evidence very clearly and it is clear from that evidence that he didn't know Mr Buthelezi before this particular incident, that is before it was confirmed by Nhlanhla, a certain Nhlanhla. It is clear therefore that there were no grudges held by the applicant against the deceased. The applicant was not robbing the deceased of any of his possessions, meaning that there was no personal gain on behalf of the applicant.
What is clear however is that there was a perception whether rightly or wrongly, but there was a perception that the deceased was a member of the Toaster gang and in fact on the day in question they had just robbed a shop and the SDU was put in place specifically to protect the community against this kind of robberies or terrors. It was against that background that the applicant shot the deceased. No personal gain, nothing of any sort. It is clear that it was only in defence of the community.
It is also clear from the trial, the High Court trial, the criminal trial, that indeed the applicant had the support of the community. Members of the community came to that particular trial to testify. That also goes to show that indeed the applicant was acting on behalf of the community. He had that authority as a member of the SDU, there was a standing command that the community must be protected and when he committed this particular offence, it was pursuant to that authority, whether express or implied at that particular time, but it was clear that it was in defence of the community, no personal gain.
I would therefore argue that he indeed has told the truth and that he does qualify in terms of the section we are dealing with and the motives are very clear, his objectives, if one looks at Section 20 sub-section 3, that it was in the context of the terrors that the community was experiencing at that particular time, that it was in the defence of the particular community that he committed this particular offence and I would therefore submit that he does qualify indeed for amnesty and the Committee should grant him this particular amnesty. I have got no further submissions.
CHAIRPERSON: What do you say to the evidence that has been presented by Mrs Buthelezi, that to her knowledge, the Toaster gang was no longer in operation by October 1993 and therefore any evidence that would suggest that her son was a member of such a gang, would be denied vehemently by her, because at that time the gang was no longer in operation?
MR MOTEPE: Perhaps the gang in it's original form was no longer in operation, but it is clear, especially when looking at this particular incident, that here were three people who just robbed a shop.
CHAIRPERSON: You are missing my point. Was there a Toaster gang in operation in 93?
MR MOTEPE: As I've already indicated, perhaps in its original form it was no longer there, perhaps, but the members, obviously the members of the Toaster gang, one cannot say they were not there. They were still being seen by the people in the community. They had been identified before that this particular person is a member of the Toaster gang. Now even after the disbandment of Toaster gang, that member you still see him walking around.
CHAIRPERSON: Was there disbandment of the Toaster gang?
MR MOTEPE: That's what they imply when they say it was no longer there.
CHAIRPERSON: But do you agree? This is what I am saying, do you agree with the evidence?
MR MOTEPE: Madam Chair I believe that if I may put a parallel, it's like saying this Mr Sishaba here, the applicant, is there still an MK existing? I would say Mr Sishaba was identified before as a member of MK, but MK has been disbanded, but we know him that he was a member of MK. Now if something happens and he acts in defence of the community some people will still say an MK member defended the community yesterday, even though the MK has been disbanded. Now in this instance the people who were known in the community for causing terror, they had just robbed the shop and a witness Nhlanhla went to Mr Sishaba and told him I've seen members of the Toaster gang who have just robbed a shop and Mr Buthelezi is one of them, that's when he pursued the three assailants and that's when he committed this particular act but what is clear is that there was no personal gain on his behalf, there's no other deduction except to say he was acting on behalf of the community.
CHAIRPERSON: I'm not concerned about that. My concern is, I have now evidence before me that the Toaster gang was no longer in operation in 1993. What do I do with that evidence? What weight should I give to that evidence? Do you accept that de facto there was no Toaster gang in operation in Tembisa in 1993, bearing in mind the fact that thrust of the applicant's application is the fact that the community had to be defended at all costs because the Toaster gang, in cahoots with the IFP, were subjecting that community in a reign of terror, they were causing mayhem.
MR MOTEPE: We have the evidence - the applicant in this case has testified that the Toaster gang was in operation and that version was unfortunately never put to him, whether the Toaster gang was in existence or not. Now in my submission I go with the version of the applicant that the Toaster gangs were still operating, but even if they were not operating, ...(intervention)
CHAIRPERSON: I don't want to hear the even if. I just want you to give me your submission. Do you submit, is it your submission that the Toaster gang was in operation in 1993, particularly and pertinently in October 1993?
MR MOTEPE: Indeed, I do submit that.
CHAIRPERSON: Yes. You may proceed.
MR MOTEPE: I do not have further submissions except to say that the applicant does qualify, he has proved his case.
CHAIRPERSON: Ms Thabethe?
MS THABETHE IN ARGUMENT: Madam Chair and Members of the Committee, you have heard the evidence of Mrs Buthelezi. She testified to the fact that she had no knowledge - she had knowledge before 1993 that her son was not a Toaster gang, but of course our concern is what happened during 1993 and she has testified that she had no knowledge, or rather she has testified that according to her she had no knowledge of the fact that her
son was a Toaster gang. Of course I think the Committee will have to take into consideration that she was staying in Moedi Section and this incident occurred at Esangweni Section and really I wouldn't like to argue that the Committee shouldn't take what she knew, I mean that was her knowledge that her son did not belong to any Toaster gang. But, as my learned colleague has indicated, she can't really say whether for sure the deceased did belong or did not belong to a Toaster gang.
CHAIRPERSON: I think she was quite crisp with regard to that.
MS THABETHE: Yes.
CHAIRPERSON: She did not stay with her son. The son stayed with the grandmother. She can only rely on what she heard from the grandmother, otherwise she is in no position to say anything from much more than that.
MS THABETHE: And maybe I should add that in my consultation with the family especially the father, he kept on asking me the fact that they have lost their son, what is the Commission going to do about that and I did explain to him that the Commission does recommend the victims, you know, with regard to the fact that they are sympathetic to the fact that they have lost their loved ones, so they will be referred to reparation, Rehabilitation and Reparation Commission. I think that's, from consulting with them, that's mostly their concern, that what happens to them when they've lost a loved one.
CHAIRPERSON: We are going to reserve our Judgment until tomorrow morning. Before we commence with the application set down for tomorrow, we'll pronounce our decision in respect of the application of Mr Sishaba. We will now adjourn until tomorrow morning at 10 o'clock. Thank you.
COMMITTEE ADJOURNS
