CHAIRPERSON: I understand that we are going to deal with the matter of Xulu firstly today. And for the record my name is Judge Pillay. I'm going to ask my colleagues here to announce themselves for the record and the different representatives.
ADV SIGODI: Adv Sigodi from the Port Elizabeth Bar.
MR MALAN: Wynand Malan, local.
MR NDOYO: My name is IT Ndoyo from the firm ...(indistinct) and Associates, acting for the victim, Mrs Malbulani Josephine Khoza. Thank you.
MS MTANGA: I am Lulama Mtanga, the Evidence Leader for the Truth Commission. Thank you.
MR MBANDAZAYO: Thank you, Chairperson, and Honourable Members of the Committee. My name is Lungelo Mbandazayo. I'm representing the applicant. I'm from the Eastern Cape. Thank you.
CHAIRPERSON: Mr Xulu, what language would you prefer to use.
MR XULU: I will use English.
CHAIRPERSON: Are you quite comfortable with that?
MR XULU: Yes.
CHAIRPERSON: Very well.
NQABA DANIEL XULU: (sworn states)
CHAIRPERSON: Is there any particular reason why the public has not been furnished with my headphones? Yes, Mr Mbandazayo.
MR MBANDAZAYO: Chairperson and Honourable Members of the Committee, let me first apologise for not - I prepared yesterday, I came to prepare a supplementary affidavit and I worked on it overnight and I was hoping that I will get the photostatting machine. I do have ...(indistinct) but unfortunately I was told that it's not yet available the photostatting machine for making copies available.
CHAIRPERSON: Mr Mbandazayo, why wasn't this done last week then? Why is it every time we have to start something we have to - we have these delays because attorneys or advocates have not done their work timeously.
MR MBANDAZAYO: Chairperson, the reason is that I - when I was given instructions last week I was - I'm from the Eastern Cape and it was only - it was going to be cost effective for me to come only - I came on...
CHAIRPERSON: I don't want to argue about whether it was cost effective to get an attorney from the Eastern Cape to Johannesburg to deal with a matter like this. That's another matter. The point of the matter is that judges have recently been accused of not doing sufficient work. It is these causes. I would trust that it's not going to re-occur, please.
MR MBANDAZAYO: Chairperson, with respect, I want to say that I always prepare affidavit timeously, but unfortunately this incident unfortunately I couldn't make it in time for this one - for the two applicants I'm representing. But I did prepare overnight affidavits and I typed them.
EXAMINATION BY MR MBANDAZAYO: Thank you, Chairperson and Honourable Members of the Committee. I'll read from the affidavit and the affidavit reads as
"I, the undersigned Nqaba Daniel Xulu do hereby make an oath and state that I'm the applicant in the Pulosong Hospital Incident. The facts to which I depose to are true and correct and within my personal knowledge, unless the context indicates otherwise. I was born in Soweto, Johannesburg on the 29th of April 1970.
I grew up in the Gauteng province. I left school in 1983 doing standard eight due to riots. We are 15 children at home and 13 of them are still living. My father took a package in 1994 and was working for United Tobacco Company. My mother is living on old age pension.
I joined PAC through Azania in 1983 and joined APLA in exile in Zimbabwe in 1984. I did my military training in Zimbabwe under the command of Barnie Hlatswayo known as Mntumzolo and he is currently a General in the South African National Defence Forces. I was deployed inside the country in 1988. As APLA operative my general instructions from APLA high commando was to prosecute the arms struggle with all means against it, then resist a minority regime which was then undemocratic and oppressive.
The said arms struggle was in essence a guerilla warfare during which we as APLA cadres had to ...(indistinct) and attack the bastions an mignons of the then aforesaid regime. The ultimate objective of PAC and APLA was not only to topple the then racist minority regime, but to eventually return the land to the majority of the African people. The bastions and mignons of the then erstwhile regime were in terms of APLA perspective. The members of the South African National Defence Force, the members of the South African Police and Reservists in general. The farmers as they belonged to the Commando structures over and above the fact that they occupy the farms which we had to drive them away from so as to widen our territorial operational base which was aimed at eventually consolidating the liberated and repossessed land. The white homes which were garrisons of apartheid. My general instruction was to seek, identify and attach the enemy who was seen in the context of the above bastions and mignons of the regime, and also to train other cadres and command them in whatever operation that is being embarked upon. In consequence of and in pursuit of the above stated objective, during or about the 11th of January 1993 I was given an order by Jabu Radebe to rescue Makwasenge Nkosi at Pulosong Hospital under the police guard. As a result one of the policemen, Daniel Khoza, lost his life. The events which led to the rescuing of Makwasenge Nkosi were briefly as follows: Makwasenge Nkosi and other members of the Unit were involved in an operation and Comrade Nkosi was shot, wounded and was arrested by the police and was detained in Pulosong Hospital under police guard. Jabu Radebe took a decision as a regional commander that Comrade Nkosi should be rescued as members of the unit may be compromised by his arrest. Hence I was tasked to command the unit that sprung him.
The crimes for which I was convicted were motivated by my political beliefs and were not for self gain. At the time of the commission of the above stated offence the military wing of PAC, namely APLA, was still engaged in arms struggle against the then regime. When we took the decision to sprung Comrade Nkosi it was in the context of the arms struggle that I decided to participate and I perceived it as my duty and obligation to advance the arms struggle against the then authorities. My whole ...(indistinct) under the circumstances was a political one.
I respectfully submit that my application complies with the requirements of the Act and that I have made full and proper disclosure of my involvement in the Pulosong Hospital incident. I therefore humbly beseech and pray to the Honourable Committee Members to grant me amnesty and release me unconditionally from prison.'
Signed by the applicant.
Mr Xulu, do you confirm that this affidavit was made by yourself and you abide by it?
MR XULU: Yes.
MR MBANDAZAYO: Chairperson and Honourable Members of the Committee, I'll go to certain paragraphs for the applicant on his own words to expatiate on certain aspects. Mr Xulu, can you in your own words tell the Committee exactly what happened during the incident in which you went to sprung Makwasenge Nkosi from prison, which resulted in the policeman losing his life.
MR XULU: It was on the 11th of January 1993 after we have done a very brief reconnaissance around three o'clock which was during the visit hour. We then came back - returned to the hospital at 11 o'clock in order to execute the mission. On our arrival we saw that there was a strong presence of policemen.
Then we didn't use the main gate to gain entrance. Instead we went behind the hospital and that's where we got - we achieved the premises and we entered the wards through cubicles which have sliding doors. And on our arrival we found one of the policeman on the adjacent ward to which we were going to. We captured him.
We went into the third ward and when we arrived there we found that Makwasenge was chained against his bed. As I have instructed that the other guy must go towards the deep end - that is Jangu must go towards the deep end and Mamba will remain on the door, then I will enter and uncuff him.
I used a bolt cutter to undo him against his bed.
CHAIRPERSON: Did you know that he was going to be chained?
MR XULU: No, we didn't but we anticipated that it could happen.
CHAIRPERSON: And that's why you took along the bolt cutter?
MR XULU: Yes, that was a possible probability.
CHAIRPERSON: Carry on.
MR XULU: Yes. So I get the bolt cutter to undo him. Whilst I was in the process of cutting the leg irons, then someone emerged from the sliding door next to Jangu. That has caused - there was a little bit noise because the entire place was dead silent. So during his emergence there was that noise. Then we all turned towards him and that's when shots were fired.
From then I then instructed the other guys because there were many police members in that ward.
CHAIRPERSON: Did you see that it was a policeman?
MR XULU: Yep.
CHAIRPERSON: Ja?
MR XULU: So I told the other policeman - there was another one in the immediate bed who tried to move in the process. Then I instructed him to stay calm because if he does anything more people might get into danger. And we were trying our utmost best to execute the task of rescuing Makwasenge without hurting or infringing other people and patients.
So they then stayed calm. I continued. I cut him loose. Then we left the ward through the next sliding door, not the recent sliding door in which the guy was leaving. Up until then to the darkness and we left the ...(indistinct)
CHAIRPERSON: Who shot the policeman?
MR XULU: Shots were fired by both Mamba and Jangu. So I can't tell who actually got him.
CHAIRPERSON: Was the mission successful?
MR XULU: Yes, it was successful. We rescued him. Then they transported him to Soweto. I remained at the East Rand for the dust to settle. And that's when I was arrested.
CHAIRPERSON: Are you presently serving a sentence?
MR XULU: Yes, Sir.
CHAIRPERSON: What is the sentence?
MR XULU: I'm serving a ten year sentence from '95.
CHAIRPERSON: For what?
MR XULU: For murder and possession of illegal firearm.
CHAIRPERSON: How many?
MR XULU: Pardon?
CHAIRPERSON: How many illegal firearms?
MR XULU: Well, truly speaking they got nothing from me, but I was sentenced for the possession of illegal firearms because of the fact that the deceased died through a firearm. And then because I was aligned with the keys, they then charged me with that and sentenced me for that.
CHAIRPERSON: You considered yourself bound by what your colleagues did at that time. Is that so?
MR XULU: Yes.
CHAIRPERSON: And you knew they were armed.
MR XULU: Yes, I knew they were armed and they were acting under my command. That is why I am fully responsible.
CHAIRPERSON: Where did they get their firearms?
MR XULU: Where?
CHAIRPERSON: From whom?
MR XULU: As a Unit Commander I also organise some of the firearms.
CHAIRPERSON: Did you give it to them?
MR XULU: Yes, I gave them one AK47.
CHAIRPERSON: Is that what you were convicted for, possession of a AK47?
MR XULU: Because that's the one which shot the fatal bullet.
CHAIRPERSON: Oh.
MR MBANDAZAYO: Thank you, Chairperson. Mr Xulu, I would like to tell the Committee how did you gain entrance because police - you indicated that police were on the guard and you were armed with such heavy weapons. Why was it so easy for you to enter the hospital without - with such...
MR XULU: Thank you very much. That's one aspect that I forget to elaborate upon. In the organisation of everything I talked to one of my - a unit member which was Peter Mpashele who was a member of the police services then. He's the one - I requested him to give us the uniform, the police uniform so that we can easily gain access there.
Then it was given to us only two pairs of the field rest type of police uniform. It couldn't fit me. That is why I didn't even wear it. It was only the two guys who wore the uniform. And why uniform? We wanted to gain the entrance on the pretext that maybe I was hurt and the two policemen are escorting me to the hospital.
But on our arrival there I saw that there was a strong presence of policemen and I saw that that couldn't work. Hence we decided to use the back of the hospital.
MR MBANDAZAYO: That's the evidence, Chairperson, at the present moment. Thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
MR NDOYO: Thank you, Chairperson.
CROSS-EXAMINATION BY MR NDOYO: Mr Xulu, you say that when you came there you were supposed to pretend that you were hurt and you were under the police guard of your two accomplices.
MR XULU: Ja.
MR NDOYO: Isn't it that at that time you already had the bolt cutter with you?
MR XULU: Yes, I already had the bolt cutter. I don't know whether I am to elaborate on that.
MR NDOYO: I assume that's my expectation.
MR XULU: Okay. Right. As a Unit Commander whatever I do I have to make it a point that I'm prepared for whatever resistance we might encounter. Hence the bolt cutter was there with us and the police uniform. And again the bolt cutter we were not going to use it if we gain entrance without using the police uniform. With or without police uniform the bolt cutter would have been needed if the guy was chained against his bed.
MR NDOYO: I think I perfectly understood that.
MR XULU: Yes.
MR NDOYO: All that I'm asking you is that apparently your other two companions were to pretend they are merely police officers.
MR XULU: Yes.
MR NDOYO: I'm then asking myself where was the bolt cutter? Were you carrying the bolt cutter?
MR XULU: Yes, it was inside the jacket that I had on.
MR NDOYO: Did you at any stage hope that you were going to succeed ...(indistinct) these guys in that fashion carrying the bolt cutter?
MR XULU: Yes, I thought that will succeed.
MR NDOYO: Okay. Now you say Peter Mpashele was a member of the South African Police.
MR XULU: Yes, Sir.
MR NDOYO: Was he in any way your commander or somebody in that position?
MR XULU: No. He was - in his duties he was a sergeant and in our unit he was just one of the members.
MR NDOYO: Was he member of your unit?
MR XULU: Yes.
MR NDOYO: How many members did your unit comprise of?
MR XULU: It was myself, Peter Mpashele and Makwasenge, Nthlantla, then Jangu and Mamba.
CHAIRPERSON: Mr Ndoyo, is it in any dispute that the injured person was assisted in escaping from police custody while he was in hospital?
MR NDOYO: Mr Chairman, I do not think that that is in dispute. If I may disclose the line of cross-examination. I'm merely endeavouring to ascertain myself that a full disclosure is being made here. We are being told the truth and the whole truth. May I carry on then, Sir? Thank you. Now tell me this particular mission that was executed with the success that you have already alluded to on the 11th.
MR XULU: Yes.
MR NDOYO: Did you get any specific instructions to carry out that mission?
MR XULU: Specific instructions in which sense?
MR NDOYO: From anybody.
MR XULU: Yes, I was instructed by my area commander Jabu Radebe, alias Joe Nkosi to carry on with that mission.
MR NDOYO: And when was this?
MR XULU: It was on the 10th. That is on Sunday.
MR NDOYO: You are sure about that one?
MR XULU: Cocksure.
MR NDOYO: Didn't you start your preparations earlier than the 10th about this particular mission?
MR XULU: To carry out the mission I will say I did - we didn't start before that. All I did on a Saturday I went all around looking for him. After I heard that he was shot I went to the Nigel Hospital, I want to Pulosong. That's where I found him on Saturday that he was there. Then I went down to Soweto to report to Joe Nkosi, who then instructed that it - and I even told him about the consequences of everything. Then he also saw it fitting to go there and reclaim him.
MR NDOYO: I see. Now you surely have been at pains to emphasise that you wanted to do this with as much minimal force and/or injury as possible to other people isn't it?
MR XULU: Most especially the patients.
MR NDOYO: What about the police?
MR XULU: I think that's the reason why we were armed because we knew precisely that we'll get a resistance from the police. So we were waiting for anything which might erupt there.
MR NDOYO: Ja, I perfectly understand that, but isn't it that it was your stated objective that wherever you find police apparently you'd have to seek them, identify them and kill them.
MR XULU: Yes, but that is not done haphazardly.
MR NDOYO: Okay. On that particular day.
MR XULU: On that particular day there was no police member which was a clear target because the main mission was then to attack policemen.
MR NDOYO: But to rescue your colleague.
MR XULU: Te rescue our colleague. And hence we armed ourself in a sense that we can equate whatever form of resistance that we might encounter.
MR NDOYO: And I seem to find the first indication of what you are saying in what you have said earlier on that as you came in you found another police officer in an adjacent ward.
MR XULU: Yes.
MR NDOYO: You didn't just kill him.
MR XULU: Not at all.
MR NDOYO: What you did was to capture him.
MR XULU: Yes.
MR NDOYO: And as you were busy cutting the bolt - I'm sorry the chain...
MR XULU: Yes.
MR NDOYO: Somebody entered.
MR XULU: Right from behind, yes.
MR NDOYO: Yes. But he was not fighting, was he?
MR XULU: I won't tell whether he was fighting or not firstly. And secondly the main reason why we captured the first guy without raising any tendrils was that whatever we would have done then would have jeopardised the entire mission. Hence we had to capture them and we had to employ tactic better than force.
MR NDOYO: No, no, I must congratulate you for that. But I'm merely saying to you apparently you were not all out to kill. You captured the first policeman.
MR XULU: Yes.
MR NDOYO: And here comes in the second one.
MR XULU: H'm.
MR NDOYO: There are no indications or signs that he's up for a fight. He's not armed.
MR XULU: No, he was armed.
MR NDOYO: Did he carry a firearm?
MR XULU: Yes, he had a service pistol.
MR NDOYO: On him?
MR XULU: Yes.
MR NDOYO: Was there any indication that he might - he intended using it?
CHAIRPERSON: Where was that firearm that he had?
MR XULU: It was then - it was confiscated. I saw it when we left. Jangu had it. It was confiscated then.
CHAIRPERSON: Ja, but you see him when he came in?
MR XULU: No. As I said before that I didn't see him. I heard the noise. When I turned there in my - there he was on the sliding doors. And it was within a fraction of a minute everything happened.
CHAIRPERSON: At what stage did you see the firearm?
MR XULU: When we were then retreating.
CHAIRPERSON: So you can't tell us whether he had drawn the firearm or not?
MR XULU: Or it was on him - on his person.
CHAIRPERSON: Ja.
MR XULU: No, I'll say I'm not ...(intervention)
CHAIRPERSON: You see the purpose of the question is to put to you that it was not politically necessary to kill that policeman. Can you deal with that?
MR XULU: That it wasn't politically?
CHAIRPERSON: Necessary.
MR XULU: ...(no audible answer)
CHAIRPERSON: In other words that policeman was killed for reasons other than political reasons.
MR XULU: I will argue that because if he was come like other policemen and there was no action that he took, I don't think that he would have been shot on that instance.
MR NDOYO: Mr Xulu, with all due respect. Was it not part of your testimony that the - having captured the first policeman...
MR XULU: Yes.
MR NDOYO: At some point you saw another police officer in another ward and then he was given clear instruction that he must move or else. Isn't it?
MR XULU: He was not on the other ward. They were on the same ward. There were plenty - there were more than two or three policemen in the specific ward that Makwasenge was under guard.
MR NDOYO: No, okay.
MR XULU: Yes.
MR NDOYO: But as far as the others were concerned or the other one was concerned he was told to remain still.
MR XULU: All of them. When we entered we told all of them to remain calm.
MR NDOYO: And I'm sure you realised, did you not, that this other one who was just coming in as you were busy cutting the chain, had not been given your instruction to remain still or else.
MR XULU: Nothing will have hindered him from hearing that because he was not fvom another ward, Sir, if I may correct you.
MR NDOYO: Okay.
MR XULU: In those wards the Pulosong wards there are cubicles outside the ward which are divided by sliding doors. The only mistake that we did we didn't realise that the sliding door was open - was slightly open. We only realised that after the guy came in. And I will - even the strong presence of the policemen outside in the entrance didn't give us an indication that the police were already prepared for what we were there for. And I only learnt that during the court proceedings that they were pre-informed about the mission which was about to take place.
CHAIRPERSON: Tell me when you heard the sound at that sliding door, you saw this policeman coming into the ward, correct?
MR XULU: Yes.
CHAIRPERSON: What did you think he was going to do?
MR XULU: He might have stopped us from what we were doing. Either by shooting us or by telling us to drop our weapons because he was coming from the back.
MR NDOYO: But is it not possible as well that you might have thought that your colleagues were police officers and he was merely coming to talk to them?
MR XULU: Yes, then I would have thought likewise, but after learning that they knew that we were coming then it was an obvious case that he was only a tactical point as well waiting for this to happen so that he can foil it - he can foil all the attempts of rescuing our man.
CHAIRPERSON: When you testify don't think like the operative soldier. Just tell us the truth like a human being. Don't try to forecast what the advocate is trying to get at.
MR XULU: Okay.
CHAIRPERSON: And I'm not saying how you must answer the question. I'm giving you advice. It is important to know whether there was a political reason for killing this policeman at the time. Do you understand that?
MR XULU: Yes, Sir.
CHAIRPERSON: Because if there was no political reason for killing him you may be in a bit of trouble. Do you follow?
MR XULU: Yes.
CHAIRPERSON: And the advocate is carrying out his instructions. He's doing his job and that's why he's asking you about it. Do you understand?
MR XULU: Yes, Sir.
CHAIRPERSON: Okay.
MR NDOYO: And Mr Xulu, may I just add. If you don't know something I would find it very acceptable for you to tell this Honourable Commission that you don't know or you are not sure about the answer. And maybe just to step off that question. Do you know precisely why was this policeman killed or shot at?
CHAIRPERSON: One of your colleagues told you afterwards maybe.
MR NDOYO: Pardon?
CHAIRPERSON: Even if those who shot at him...
MR NDOYO: Yes.
CHAIRPERSON: Told you afterwards we shot him because he did this, that and the other or whatever...
MR XULU: No, there was no other reason. The only thing that I think was the reason is only that he emerged from the strategic point. That's what I also think was the mere reason.
MR MALAN: Mr ...(indistinct) if you'll just excuse me. Mr Xulu, in the bundle there's a copy of the judgement in this case.
MR XULU: Yes.
MR MALAN: The judge in his summary of the facts - this is on page 20 the bundle, says that initially someone shot at the deceased while he was sitting on a bench outside the ward. They missed him and the shot went into the bench. Later he says further shots - two further shots were fired at the deceased and he died at the spot. Can you comment on this?
MR XULU: Yes. I don't think that he was shot at sitting on the bench or whatsoever. I think the shot which might have been shot when he fell might be the second, the third or - because there were many shots. Around five shots fired because the AK was on a single shot. So I can say maybe it was the second, third or whatsoever, but not the first one. Because he emerged from the cubicle.
MR MALAN: In the trial - in your trial was it - did they say or was there evidence that they had discovered a bullet in the bench?
MR XULU: No, it was never mentioned.
MR NDOYO: Thank you ...(indistinct)
MR MALAN: If I may just point it out to you on page 37 of the bundle. The Judge says in his summary again that it was clear to him from the evidence led at the trial that you wanted to eliminate all resistance before the release of the prisoner then - your comrade.
MR XULU: I will say again that was - I will say it was misconceived because if that was the reason we would have shot the first time. All what happened, and I think I left his out again, after we captured him the first time he was behind and he tried to grab and that's the evidence which was put across in the trial. He tried to grab a gun - that is a revolver - from Mamba. And that's a fire wen.. - it was discharged.
MR MALAN: Okay.
MR XULU: From there he ran and disappeared.
MR MALAN: But that shot was not an AK shot.
MR XULU: Not an AK shot. It was from a revolver the first one. And in the passage, not inside the ward. It was before we entered the ward. Hence when we entered the ward everything was to be done as soon as possible before the other guys were alarmed.
MR MALAN: And he was not sitting on a bench. Did you pass him sitting on a bench?
MR XULU: The first guy?
MR MALAN: The one who ...(intervention)
MR XULU: Who died.
MR MALAN: .. the victim who initially was killed.
MR XULU: The victim was outside the ward as I said prior.
MR MALAN: That's right.
MR XULU: Yes.
MR MALAN: He was outside the ward.
MR XULU: Yes. And he was not seated. He might have - as I say it might have been the second, third or the fourth shot which might have hit the bench or whatsoever because I didn't even see that bench.
MR MALAN: When the victim was shot...
MR XULU: Yes.
MR MALAN: Was that the first time you people came across him?
MR XULU: Yes. We were seeing him for the first time.
MR MALAN: The person that you first - the policeman that you first came across was not the victim.
MR XULU: Not at all. That's ...(intervention)
MR MALAN: The person who grabbed the revolver...
MR XULU: Was the one who testified in the trial.
MR MALAN: I see.
MR XULU: Yes.
MR NDOYO: Mr Xulu, if you might refer to page 9 of the bundle. It might well be that I misunderstand what is written here. But what is actually meant here right at the one, two, three - at the fourth line,
"It all started on the 5th of January 1993."
Does that have any bearing to the happenings of the 11th?
MR XULU: Yes, it has a bearing in a sense of rescuing Makwasenge.
MR NDOYO: Okay.
MR XULU: Yes.
MR NDOYO: Okay. Now in hindsight, Mr Xulu, when you look at all this, do you think it was really necessary to shoot ...(intervention)
CHAIRPERSON: Before we - just to get rid of any misunderstanding. Page 9 purports to be a statement. Is it - do you know who is the author of this statement?
MR XULU: Yes, Sir.
CHAIRPERSON: Who is it?
MR XULU: It's me.
CHAIRPERSON: It's your...
MR XULU: Yes, it's my statement.
CHAIRPERSON: Okay.
MR NDOYO: Thank you, Mr Chairman. Now in hindsight having had time to sit and think and ponder and look back, do you think it was really necessary to kill this particular policeman, or you don't know?
MR XULU: On human basis - on human grounds it is unnec.. - it's always unnecessary to take one's life ...(intervention)
CHAIRPERSON: Mr Xulu, I said stop testifying like a politician. Talk like a human being. Are you able to say whether your colleagues who shot that policeman was justified or not in the circumstances to kill?
MR XULU: I say they are justified.
CHAIRPERSON: At that time did you - would you be able to say so - say seeing that you did not see what happened?
You say you don't know what happened there behind you. When you saw this person and he was shot you were busy cutting the chains or whatever.
MR XULU: Yes.
CHAIRPERSON: Are you really in a position to say why your -what that policeman did or what he didn't do which resulted in your colleagues shooting him?
MR XULU: No. I'm not in a position of stating why they shoot at him.
CHAIRPERSON: Ja.
MR NDOYO: And finally maybe the question you were waiting for. That - how do you feel today about the whole thing looking back? Do you have any remorse? Do you have any regrets, or do you feel more powerful?
MR XULU: I feel very much remorse for the life which was lost.
MR NDOYO: Thank you, Mr Chairperson. I have no further questions.
NO FURTHER QUESTIONS BY MR NDOYO
MS MTANGA: Chairperson, I have no questions to put the applicant.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Any re-examination, Mr Mbandazayo?
MR MBANDAZAYO: None, Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
MR MALAN: May I first ask from the Evidence Leader whether the implicated persons were served duly of notices of this hearing.
MS MTANGA: Yes, Chairperson. Jabu Radebe is here. He wasn't at the hearing.
CHAIRPERSON: And the others?
MS MTANGA: And the other people could not be located according to my instructions.
MR MALAN: Do you know where your co-perpetrator, your comrades, where they are today?
MR XULU: Oh, Peter Mpashele was - died in 1995. He was ambushed in his own backyard. Jangu also died and Patrick died. They were all shot.
MR MALAN: Then the second question I have is in your evidence you talk about your colleague Nkosi.
MR XULU: Yes.
MR MALAN: Nkosa.
MR XULU: Nkosi.
MR MALAN: Nkosi.
MR XULU: Yes.
MR MALAN: Some places it's spelt Nkosa here.
MR XULU: Yes.
MR MALAN: It's Nkosi.
MR XULU: Yes.
MR MALAN: That he was shot in a skirmish with the police.
MR XULU: In his?
MR MALAN: Was he shot in a - he was shot ...(intervention)
MR XULU: In a skirmish ...(intervention)
MR MALAN: .. during an operation you say.
MR XULU: Yes, Sir.
MR MALAN: What operation was that? Can you tell us? Do you know?
MR XULU: All I know was there were on a fundraising spree.
MR MALAN: As a member of your unit.
MR XULU: As a member of my unit, yes.
CHAIRPERSON: I've heard a couple of these applications already. This fundraising spree. Would that be like raffles or robbing a bank.
MR XULU: Yes, it was a robber.
MR MALAN: Did you not participate in that operation?
MR XULU: No, I was not in that operation.
MR MALAN: You were only five members in your unit.
MR XULU: We had - yes, in the unit that took Makwasenge out of this ...(indistinct) we were four. Then only the three of us that participated. And we had many units. It wasn't the only unit. We had task units. For a certain mission there will be a unit for ...(intervention)
MR MALAN: So was he not a member of your unit?
MR XULU: He was a member of my unit on the other hand and he also operated with other units.
MR MALAN: And there was instructions or his own decision.
MR XULU: Exactly it depends on who is there and who is heading that unit.
CHAIRPERSON: Do I understand you correctly? I heard this type of evidence once before. You would have a fundraising commando who would select different operators and do a fundraising mission. Then you would have a police attack commander who would also be able or authorised to take whoever he needed for a particular operation. Am I correct?
MR XULU: Yes, the ...(intervention)
CHAIRPERSON: Is this possibly what happened?
MR XULU: Yes, it's possibly what happened.
MR MALAN: May I just ask you why are you applying for amnesty on this incident? Straight forward question. Why are you applying for amnesty?
MR XULU: In order to be granted amnesty - how can I put it? Because I feel that what has happened in the past needs to be reconciled. People have to spill the beans in order for true reconciliation to take place.
MR MALAN: Or is it simply that you want to get out of prison?
MR XULU: If I'm granted amnesty it will also help in that, but ...(intervention)
MR MALAN: No, the reason why I'm asking this question is from your evidence it's clear that you had as a target inter alia the killing of policemen. You've been operating for quite some time when this incident took place. Were there no other gross human rights violations, killings, robberies, where you could have spilt the beans too and tell us what happened in the past for the sake of this reconciliation that you're seeking.
MR XULU: I think that I discussed again with my representative but there was another mission that I was involved in and I applied for amnesty for that. And right now it's only this which has come through and that's the one that we are talking about now.
MR MALAN: Were you prosecuted for the other mission?
MR XULU: Not at all.
MR MALAN: Now why is that mission not mentioned in your application form?
MR XULU: I applied on separate ...(intervention)
MR MBANDAZAYO: Chairperson, when I consulted with him on - yesterday, I asked him whether there are any other incidents in which he was involved in and he told me there were other incidents, but when he submitted his application he made his application in different application forms for different incidents. So that's why the others don't appear on this application form.
MR MALAN: Have you had any communication from the TRC on the other incidents - other applications?
MR XULU: To date nothing has transpired.
MR MALAN: If we had any record of that we would probably have advised you, but it's not before us at the moment. The question was really simply to see whether your answer that you're seeking reconciliation was a serious one or whether you simply wanted - and you're entitled to apply simply to get out of prison. I'm not attacking that. Thank you.
ADV SIGODI: No questions, Chairperson.
CHAIRPERSON: Mr Xulu, have you seen the family of that policeman that was killed.
MR XULU: No, I never saw them. Even at the court of law they were not there.
CHAIRPERSON: What is your attitude towards speaking to them now or after this?
MR XULU: I'd be very pleased to meet them so that I can in front of them ask for forgiveness for what I've done.
CHAIRPERSON: What do you plan to do if you are released from prison?
MR XULU: It will depend whether there is still a chance of integration. Then I can integrate. If there's not I have to pursue my studies.
CHAIRPERSON: From the position you held in your political line, as much as we are a young democracy with all it's problems in building this democracy, are you comfortable that at least there has been a start to democratic life in this country?
MR XULU: Yes, I will say I am comfortable and I think it needs nurturing because if it is not nurtured ...(intervention)
CHAIRPERSON: Ja, ja.
MR XULU: .. then things might be haywire.
CHAIRPERSON: And you - if the two attorneys can arrange a meeting with the family of the policeman, are you willing to take advantage of it? I don't know whether they wish to meet you.
MR XULU: That ...(intervention)
CHAIRPERSON: That the attorneys will have to see.
MR XULU: I'll be very much happy, Sir, if I can have a chance of meeting them in person.
CHAIRPERSON: Yes, thank you. You're excused.
WITNESS EXCUSED
MR MBANDAZAYO: Thank you, Chairperson. The only person, Chairperson, I will call is Jabu Radebe just on the aspect of giving an order for the rescuing whether it's ...
CHAIRPERSON: ...(inaudible)
MR MBANDAZAYO: Chairperson, if that's the case then that's the evidence of the applicant, Chairperson.
MR NDOYO: Thank you, Mr Chairperson. Mr Chairperson, ...(indistinct) I'm actually constrained to call upon Mr Khoza who has indicated to me together with all other family members that they wish to be afforded the opportunity at least to say something. Can I call Mr ...(intervention)
CHAIRPERSON: ...(indistinct) and/or is he going to talk on behalf of all the ...(intervention)
MR NDOYO: Mr Chairman, he will be speaking on behalf of the whole family.
CHAIRPERSON: Mr Khoza, what language would you prefer to use?
MR KHOZA: Northern Sotho, Sir. I am James Khoza. I am the brother to the deceased.
CHAIRPERSON: Have you any objections to the taking of the oath?
MR KHOZA: I have no objection.
CHAIRPERSON: Would you please stand.
MR KHOZA: I have problems the way we - because the whole family members are - have been hurt by this incident and I want to thank the Commission for giving us this opportunity.
CHAIRPERSON: Yes, but will you please stand. I want to swear you in.
JAMES KHOZA: (sworn states)
CHAIRPERSON: Please be seated. You say you're the brother of the deceased.
MR KHOZA: That is correct.
CHAIRPERSON: Please proceed.
MR NDOYO: Thank you, Mr Chairperson.
EXAMINATION BY MR NDOYO: Mr Khoza, may you please explain to the Commission as to who else from the family is here today?
MR KHOZA: The wife to my brother. That is Modjadji Khoza and Josephina.
CHAIRPERSON: Could you spell that name please.
MR KHOZA: M-O-D-J-A-D-J-I.
CHAIRPERSON: And Josephina?
MR KHOZA: And Josephina is the wife to the deceased.
CHAIRPERSON: Modjadji whose wife is she?
MR KHOZA: He's the wife to my elder brother.
CHAIRPERSON: The deceased?
MR KHOZA: No, Sir, the wife to the deceased is Josephina.
MR NDOYO: Now ...(intervention)
CHAIRPERSON: Did they have any children?
MR KHOZA: Yes, that is correct, three children, Sir.
CHAIRPERSON: Can you give their names and ages and sex.
MR KHOZA: The first one is a boy, a son. That is Eric.
CHAIRPERSON: How old?
MR KHOZA: I think he was born in 1992.
CHAIRPERSON: Ja?
MR KHOZA: I forgot the name of the other one, but the other one is Sesi.
CHAIRPERSON: The other one whose name you forget what sex is that person?
MR KHOZA: She's a daughter who comes after the first one.
CHAIRPERSON: Your own niece you forget the name.
MR KHOZA: I just forget her name, the Christian name. She has the other name and I forgot.
CHAIRPERSON: Proceed.
MR KHOZA: The second born is Pocia.
CHAIRPERSON: Spell it.
MR KHOZA: P-O-C-I-A. And the last one is Sesi, S-E-S-I. It's a girl.
CHAIRPERSON: When was Pocia born?
MR NDOYO: Chairperson, though I didn't get it correctly the - I don't know the first one is '82. The second one is '84. The third one is '89, but I don't know the names there.
CHAIRPERSON: And Sesi is a female.
MR KHOZA: Ja, it's a girl.
MR NDOYO: What are they doing these children at the moment?
CHAIRPERSON: It's sufficient that we know they are the children of the victim.
MR NDOYO: Now, Mr Khoza, is it correct so that when you people came here as a family or relatives of the deceased, you came here and as more clearly set out in the affidavit by the wife of the deceased you came here basically to oppose the application for amnesty.
MR KHOZA: Yes, I'm here to oppose the application for amnesty.
MR NDOYO: Now Mr Khoza, in your own words as briefly as you possibly could, can you state to this Commission why would you oppose this application?
MR KHOZA: I oppose because when I studied this situation the deceased was at work. He was on duty and then he was killed on duty. He was working as a policeman. If they found him on the street and they had a conflict, I would understand. But the problem is they've killed him on the line of duty.
MR NDOYO: Mr Khoza, is it correct so that before today the family never had the opportunity to know who were the people who committed the offence or the killing and never had the opportunity to listen themselves as to what actually transpired.
MR KHOZA: I want to thank the Truth Commission about what they have done because now we know that who is responsible for the death of my brother and then what happened, but I'm not prepared to forgive.
MR NDOYO: Yes, forgiving is difficult. But tell me because I'm merely acting on your instructions. Having listened to the evidence by the applicant and the detail of what happened and why it was done does that somehow assist you or not in making you reconcile with the past?
MR KHOZA: When I was trying to evaluate this incident, yes, I understand the way he has put his evidence. But I don't understand clearly because I don't believe that a - any person has the right to kill any other person.
MR NDOYO: And finally, Mr Khoza. I'm sure you were listening as the Chairperson asked the applicant whether he will take up the opportunity if it presents itself, to talk to you as a family about this whole incident and how he indicated that he wants to apologise in front of you people. Would you take up the offer? And you're not entirely bound by what you say here. I'm sure we can still discuss it outside, but ...(intervention)
CHAIRPERSON: At the appropriate place instead of asking the question now. You've got to appreciate he's probably heard for the first time what has happened to his brother. There's some extent of shock. Perhaps in the cool calmness of - and not in public maybe such arrangements could be made.
MR NDOYO: Thank you, Judge. I couldn't agree more. Mr Khoza, you would be well advised even from my side having heeded the advice that there - let's leave that particular question. We'll discuss that matter outside. Do you have anything further to add?
MR KHOZA: I have nothing to add, Chairperson.
MR NDOYO: Thank you, Mr Chairperson.
NO FURTHER QUESTIONS BY MR NDOYO
MS MTANGA: Thank you, Chairperson. I have no questions.
NO QUESTIONS BY MR MTANGA
CHAIRPERSON: Mr Mbandazayo, have you got any questions?
MR MBANDAZAYO: None, Chairperson.
NO QUESTIONS BY MR MBANDAZAYO
ADV SIGODI: No questions.
CHAIRPERSON: Yes, thank you.
WITNESS EXCUSED
MR NDOYO: ... witnesses, Mr Chairperson.
MS MTANGA: I have no evidence to lead, Chairperson. Thank you.
CHAIRPERSON: That seems to bring us to the end of testimony. We'll break for tea now and thereafter we will hear argument on the application.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Any reason that you can submit why we shouldn't grant this application?
MR NDOYO: Thank you, Mr Chairperson. Mr Chairman, all that I can place on record is the following. That having discussed the matter with my client and having reflected on the evidence already adduced, it is my instructions to state to this Committee that my clients still stand by the initial position namely that they wish to oppose this application. Unfortunately, Mr Chairperson, we cannot take our case any further. I have considered ...(intervention)
CHAIRPERSON: I quite understand your position. Is there anything else you want to add?
MR NDOYO: Nothing else. Thank you.
CHAIRPERSON: Evidence leader, have you got any submissions to make?
MR MTANGA: No, Mr Chairperson. I would like to leave the matter in your hands. Thank you.
CHAIRPERSON: ...(indistinct) we don't need to hear you. Decision on this matter will be delivered in due course. We proceed to the next matter now.
MS MTANGA: Yes, Chairperson, can we ask - would like to adjourn for five minutes to allow Mr Mohlaba to move out and call the next applicant.
MR MOHLABA: No, I can move out whilst you're sitting.
MS MTANGA: And the applicant - he has requested that he meets with applicant for two minutes before he starts.
CHAIRPERSON: I thought that would have been done during the tea adjournment which was ...(indistinct). Do you know anything about those placards or why are these placards up in - shown here?
MR MBANDAZAYO: Chairperson, I would know nothing about the placards, Chairperson.
CHAIRPERSON: Won't you ask those people waving the placards to remove it from this hall, please. Not to put it down, to remove it, please. Mr Mbandazayo, I would like you to, since seeing that you are appearing for Africans or associated with that political organisation, if you are able to please explain to them that I'm not entitled to give a judgment here today. Those must be processed and go to the State President's office for him to make the decision finally and to publicise it. If you are able to do it, if you can't, well tough luck.
MR MBANDAZAYO: I'll ...(indistinct) to that, Chairperson. Thank you.
