Amnesty Hearings

MS MTANGA: We'll start with the matter of Mr Madula Mhlongo.

CHAIRPERSON: For the record purposes, my name is Judge Pillay. I'm going to ask my colleagues to place themselves on record and the representatives of the applicants and the TRC to do the same.

ADV SIGODI: I'm Adv Sigodi from the Port Elizabeth Bar.

MR MALAN: Wynand Malan, Commissioner TRC.

MR MOKHANDA: Adv Mokhanda from the Pretoria Bar.

MS MTANGA: Lulama Mtanga, the Evidence Leader for the Truth Commission.

MADULA MHLONGO: (sworn states)

EXAMINATION BY MR MOKHANDA: Thank you Chairperson, TRC Members, on behalf of the applicant thank you for giving us this opportunity. We have presented an affidavit signed by the applicant and for the record I will go through the affidavit very slowly, and from there ...(intervention)

CHAIRPERSON: Has the applicant - does he have knowledge of the content of this?

MR MOKHANDA: Yes Chairperson. After it was written, he went through it and he signed it.

CHAIRPERSON: Are you satisfied that he appreciates the contents?

MR MOKHANDA: I'm satisfied.

CHAIRPERSON: Then you don't need to read it into the record. All we need is the original signed affidavit. However, the one I have has not been attested to. Commissioned, sorry. Well, maybe I can help you. Mr Mhlongo, do you see that document in front of you?

MR MHLONGO: Yes.

CHAIRPERSON: Do you know the contents thereof?

MR MHLONGO: Yes, I do.

CHAIRPERSON: Has it been read over to you?

MR MHLONGO: My answer is yes.

CHAIRPERSON: Do you agree with the contents thereof and the truth thereof?

MR MHLONGO: Yes.

CHAIRPERSON: And is it only after you're happy that it was correct that you signed it?

MR MHLONGO: Yes.

CHAIRPERSON: Do you swear that the contents thereof to the best of your knowledge is true?

MR MHLONGO: Yes.

CHAIRPERSON: And do you confirm that that is your evidence?

MR MHLONGO: Yes.

CHAIRPERSON: Carry on Mr Mokhanda. Is there any other matter you want to raise?

MR MOKHANDA: Yes Chairperson. When we consulted with my colleague the other side yesterday we promised that we will bring a witness who will testify as to the membership of the applicant.

CHAIRPERSON: Before we get there, are there any other matters you want to raise with the applicant in supplementing this or are you satisfied that that contains all the evidence?

MR MOKHANDA: In terms of the document I'm satisfied that that is all.

CHAIRPERSON: And you don't wish to lead him on any other further aspect?

MR MOKHANDA: No.

CHAIRPERSON: Yes. Ms Mtanga?

MS MTANGA: Chairperson, I am satisfied with that as well.

CHAIRPERSON: Do you have no questions?

MS MTANGA: To put to the applicant?

CHAIRPERSON: Ja.

MS MTANGA: Yes, I will have some questions to put.

CHAIRPERSON: Yes. I'm giving you the opportunity now.

MS MTANGA: To ask the questions. Thank you.

CHAIRPERSON: We will mark this Exhibit A.

CROSS-EXAMINATION BY MS MTANGA: Mr Mhlongo, at the time of your trial or at the time of your arrest you were arrested along with Velapi Ndlela and Jomo. Can you tell this Committee who these people are?

MR MHLONGO: Okay. When I was arrested I was arrested together with Jomo and thereafter there were more firearms ...(indistinct). You see, when we committed this we were four so the police heard that information that we were four in the commission of this. And I had to point Veli, but in essence Veli was not part of that. I knew very well that Veli has no information to advance in as far as this, because he bore no knowledge.

MS MTANGA: Who were the four people you committed the offence with?

MR MHLONGO: Comrade Jomo, Jeffrey Mnisi. Comrade David Slovo, ...(indistinct).

CHAIRPERSON: Would those names be spelt please? I'm not used to those names.

MR MHLONGO: Jeffrey M-n-e-s-i, Jomo, M-n-e-s-i and Comrade David S-l-o-v-o. The spelling of the Diutlwileng would be D-I-U-T-L-W-I-L-E-N-G.

MS MTANGA: And the third person?

MR MHLONGO: The third one was Zoli Mogase. The surname is M-o-g-a-s-e.

CHAIRPERSON: Jeffrey.

MR MHLONGO: S-o-l-l-y, Comrade Solly Mogase. The fourth one is myself.

MS MTANGA: In your application in also in your affidavit you indicated that the two operations, that is the murder of Assan Mkhwanazi and the murder of Joe Mogate were approved by the SDU's and in particular the murder of Mkhwanazi was approved or authorised by the SDU and also by the Cosas. Were you a student in 1991?

MR MHLONGO: Yes.

MS MTANGA: Where were you studying?

MR MHLONGO: M-a-d-i-b-a-n-e High School. But it was known as AK High School.

MS MTANGA: At what standard were you in Mr Mhlongo?

MR MHLONGO: I was doing Std. 9.

MS MTANGA: Did you hold any position within Cosas?

MR MHLONGO: No, I held no position.

MS MTANGA: At the time you were studying at Madibane High School were you also a member of the SDU's?

MR MHLONGO: I was a member while studying.

MS MTANGA: Can you tell the Committee a bit of the background about the formation of the SDU's in Diepkloof Zone 1? How did it come about that they formulated and how you became a part of the SDU's? How did you join the SDU's?

MR MHLONGO: Right at the beginning of the war between the people of the location or the community and the hostel being attacked by the vigilante groups and the hostel dwellers and the Third Force, that resulted to the community deciding to form the SDU, Self Defence Units to protect themself.

MS MTANGA: How did it come about that you joined the SDU's?

MR MHLONGO: Well, as for me how it came about that I joined SDU, I was part of the community and everything that took place in the location, I did not like. And therefore I deemed it important for me to use my brains. Or I felt that I had no choice but I must use my right to protect myself as well as protecting my family plus the community and other houses as well. Because of that I therefore joined SDU to solely protect our lives and our freedom or liberty.

MS MTANGA: Can you give us some information on the hostel dwellers that you'd been referring to who had been attacking your community, as to which hostel dwellers were these? Where were these hostels found in Diepkloof, and how were these attacks carried out?

MR MHLONGO: I think I know.

CHAIRPERSON: Ms Mtanga, is it in any way disputed that there were such attacks by Third Forces and hostel dweller conflicts, et cetera?

MS MTANGA: Chairperson, my instructions from the families are that as far as they know the applicant, he was a well-known gangster and there are no allegations that there were such conflicts by hostel dwellers.

CHAIRPERSON: Yes.

MR MHLONGO: I want to believe that the Commission has listened to many cases in relation to these matters. It's a well-known and common knowledge that the dwellers of the hostel... (intervention)

CHAIRPERSON: Mr Mhlongo, sorry to interrupt you. The question was to give us information on the hostel dwellers that attacked your community. Not nationally; in your community where you stayed.

MR MHLONGO: The way they attacked, they would come across with having red scarves on their heads and will have spears and shields together with firearms as well.

MS MTANGA: From which hostel did these people come?

MR MHLONGO: They were coming from Zone 6.

MS MTANGA: You have also given evidence about Cosas. The SDU's in conjunction with Cosas decided that the ...(indistinct) who were seen as gangsters attacking students at that time were to be attacked. Can you just give us more information as to how this was decided, and how did your unit as an SDU get involved in this operation?

MR MHLONGO: As I've already mentioned that I'm Cosas. We will have meetings, usually Thursdays after school. In those meetings we will discuss the development and what transpired thereafter. And we gathered some information that there was one school child - I don't recall the date though - but there was one school girl from the same school I attended. Her name is Thelma, though I don't know the surname. She'd been attacked by the gangs and they raped her, and ran over her - drove over her - and from there they would go and burn the houses that they suspected are those houses belonged to the people that have committed such offences.

CHAIRPERSON: Tell me Mr Mhlongo, what standard did you eventually pass?

MR MHLONGO: I passed Std. 8. I was then in Std. 9.

CHAIRPERSON: When this incident occurred?

MR MHLONGO: I was in Std. 9 when the incident occurred.

CHAIRPERSON: Did you not go back to school then?

MR MHLONGO: I ended up being arrested.

CHAIRPERSON: Before you could go back to school?

MR MHLONGO: You see, this things happened during the time I was a student and there were no classes anymore that were being run.

CHAIRPERSON: No. You were arrested and have you ever been free since? Were you convicted thereafter?

MR MHLONGO: I've been in prison since.

CHAIRPERSON: When were you arrested?

MR MHLONGO: I was arrested on 1 November.

CHAIRPERSON: When did the incidents occur?

MR MHLONGO: During the year, 1991 that is. I was arrested on 1 November and all these things started happening in 1990 into 1991. The first incident happened on 1 September 1991.

CHAIRPERSON: And the second one?

MR MHLONGO: 18 October 1991.

CHAIRPERSON: Only two incidents?

MR MHLONGO: Yes.

CHAIRPERSON: And you were not on bail, or were you?

MR MHLONGO: No.

CHAIRPERSON: When did you stop school?

MR MHLONGO: You see, all this conflicts brought the area sort of ungovernable and there were no classes that were being conducted.

CHAIRPERSON: I'm not asking why; I'm asking when did you stop going to classes.

MR MHLONGO: I don't remember, but I remember one thing; that I would just go once or twice a week to school. I never used to go to school quite often.

CHAIRPERSON: What did you do? Why?

MR MHLONGO: It is because some other times we would have tasks as SDU that we need to carry during school time or during school hours.

CHAIRPERSON: Which SDU kept children out of school? The one in Diepkloof?

MR MHLONGO: Well, I know about the Diepkloof. It will not take us away from school as such, but I felt coerced that I shall be all the time with the SDU. I was in a mission of protecting my life here; it was my life I had to protect.

CHAIRPERSON: Tell me, what did you do in your spare time?

MR MHLONGO: There was no time for me to relax as such. I remember on Sundays I will not even be go to my church. The place had been rendered ungovernable by all this conflict.

CHAIRPERSON: Look, I'm not talking about conflict. You say you were a member of the SDU and to the extent that you stayed out of school more than half the week, every week.

MR MHLONGO: Yes.

CHAIRPERSON: The SDU's must have given you off from duties from time to time to rest. You couldn't have been on duty 24 hours a day with SDU activities. Correct?

MR MHLONGO: Yes, that is true.

CHAIRPERSON: I'm asking what you did with yourself in your spare time.

MR MHLONGO: Well, I will do many things. I will go to gym to exercise. I will go visit my family members staying place in the location and with my friends as well.

CHAIRPERSON: Were your friends in very much the same position as you were as far as not going to school was?

MR MHLONGO: Well, my friends were students and I was arrested at the time when I was a student and we will not go to school. You see, even the school had no order then. It was not necessarily that I would decide not to go to school or to classes, to attend classes. There were no classes. It was a known fact that there was no school running.

CHAIRPERSON: Ja. The students rendered the school ungovernable, isn't it? Not so?

MR MHLONGO: Well, it's not true. You see, after - you see, the students went to burn the house of a person who's been suspected to have killed Thelma and they will come to school and shoot. And now many schoolchildren were afraid of going to school because of anything that may transpire subsequently. And that led to students not to be in uniform anymore, because of this reason that they will be easily identifiable anywhere they are. So they were protected if they were in private clothing instead of uniform. So there was no order as such in schools anymore.

CHAIRPERSON: These people who attacked the schools, they were a gang.

MR MHLONGO: Yes, those are the gangs I referred to them as Jack Rollers. And what made me to realise that they were Jack Rollers, these Jack Rollers were co-operating with the police. They were always in possession of firearms and would be able to shoot in one zone and suddenly shoot in the other zone in the same day and go also to attack in the third zone. But they will not be arrested. And the police were all over the place and these people were never arrested; so they got away with all these evil deeds.

CHAIRPERSON: Was that the only gang in the area?

MR MHLONGO: Well, the Inkatha gangs as well. But they were always attacking squatter camps, often times than not. And they will do it at night.

CHAIRPERSON: Let us not play with words. When we talk about gangs, we're talking about tsotsis, hey? Crooks?

MR MHLONGO: Well, we called them vigilante, umulwende (Xhosa name).

CHAIRPERSON: No, no, no. I'm talking about the Jack Roller gang.

MR MHLONGO: Well...

CHAIRPERSON: They were terrorising the area.

MR MHLONGO: Yes, that is very true.

CHAIRPERSON: The IFP, no matter what you think of them or however you want to describe them, seem to me to have political reasons for doing what they did. We're not talking about that kind of gang. We're talking about gangsters, crooks, criminals. Were there any other gangs?

MR MHLONGO: I would like for the Judge to afford me opportunity to explain something. You see, these gangs were always associating them with politics, because at the time people from exile were coming in; Mandela as well was back, so there was a process in place that we - such as Codesa. So these people were being used by the police to take away the confidence of the community so that they realised that they are no longer safe in their very community or places. So each time when we meet as SDU's we look into such things and scrutinise the fact. So that it will so happen that these very same vigilantes or umulwende, they would be doing things and telling themselves that they are doing criminal acts. But then on the other hand the police were always using such opportunity to destabilise the peace in the location. And they were not - or little did they know that they were being used by the police. So as SDU's ourselves we will have meetings and look into these reasons that lead them to become a danger to the community and yet they were brought up in the same community. What caused that? So we'll have to get reasons why. And we discovered that these people were no longer themselves; they were being used by the police. This is why they were not arrested at the end of the day.

CHAIRPERSON: Are you done?

MR MHLONGO: Yes.

CHAIRPERSON: Were there other gangs in the area?

MR MHLONGO: Well, there were who took advantage. But they were not harassing the community. Well, criminals are always there in the location.

CHAIRPERSON: Criminals harass and terrorise communities as gangs. That's what I'm talking about. Were there other gangs who rob and rape and break into houses, and make people fearful. Were there other such? I assume the Jack Roller gang was one such gang. Rape, assault people; ask for money, rob them, break into their houses and so forth. Am I correct?

MR MHLONGO: Not only that, and killing as well. Jack Rollers were the only gang I knew of at the time.

CHAIRPERSON: Were there no other gangs?

MR MHLONGO: It may happen that there were others, but I wasn't aware of such.

CHAIRPERSON: What gangs were you talking about when you described them as gangs but not harassing the community?

MR MHLONGO: Such as people who would just go stealing or car theft and stand by corners, although they don't name themselves as gangs, but they will do such work.

CHAIRPERSON: So there were a few of them also, gangs.

MR MHLONGO: Yes, in the community you get various people, assorted people.

CHAIRPERSON: How did you survive when you weren't at school?

MR MHLONGO: I always was in the possession of arms. I was always alert and as far as I was concerned, ready to protect myself.

CHAIRPERSON: How did you survive financially? Buy food, buy clothes, that type of thing.

MR MHLONGO: I have a family as well.

CHAIRPERSON: Yes Ms Mtanga?

MS MTANGA: Thank you Chairperson.

MR MALAN: Just before you proceed, may I just ask you: these other gangsters who didn't name themselves or groups of criminals - you said they didn't name themselves - did the SDU's act against them as well? Did you attack them?

MR MHLONGO: You see, the SDU's, the objectives of the SDU's is not to attack people. They would only attack people only after they had established the fact that the people have become troublesome in the community, and the community is continually complaining about such people; that they are being troublesome in the location. And only after then would the SDU go after them. But they will not necessarily from nowhere out of the ordinary attack.

MR MALAN: I thought you were saying there were other such groups of criminals, gangs. And I thought you said they were stealing, car theft and so on. Did they not harass the community? Was the community... (intervention)

MR MHLONGO: You see, if they rob they will do that in towns or cities. They will steal from the whites. So they were not necessarily harassing the people in the community. Even besides that, we were having street committees in the community who would be looking into such things and assisting SDU.

MR MALAN: Now this is really the reason for asking this question is why did you not report these members of what you call the Jack Rollers, why did you not report them to the police?

MR MHLONGO: You see, the police then were not reliable. They were more taken as enemies at the time. As I already made mention about the fact that they would not do anything about people who were attacking in the community. So I know very well that there were people who were calling police and informing police of all the things that are happening in the location because we could not have taken any matters up with the policemen because we were no longer taking them as credible to us and they were no longer reliable to us.

MR MALAN: Was no-one apprehended for this killing of Thelma?

MR MHLONGO: You mean about the ...(indistinct) I've referred to?

MR MALAN: You said that the Jack Rollers killed, they raped a girl Thelma. They killed her. They drove over her body several times in daylight in public. Is that correct?

MR MHLONGO: Yes, that is correct. They were not arrested. No, they will not be arrested.

MR MALAN: Did you not report that incident?

MR MHLONGO: Even - well, I know for a fact that I did not report the matter. Even though it was reported the government military personnel will come together with the police to take the statements and open the docket. I know very well that the family did open the docket, but the police did nothing thereof.

MR MALAN: When did this incident happened?

MR MHLONGO: It was in 1991 although I'm not sure. You see, I won't be accurate in as far as the dates are concerned. I'm sure of the fact that it was in the beginning of 1991.

MR MALAN: Okay, thank you.

MS MTANGA: Okay. Tell me, do you know who was the leader of the Jack Rollers?

MR MHLONGO: Well yes, there were some I knew.

MS MTANGA: Who were they?

MR MHLONGO: I knew Jeff Brown.

MS MTANGA: And where did he stay?

MR MHLONGO: He resided in Eldorado Park, Klipspruit West and even in the location he had a room that he resided in, in Diepkloof that is.

MS MTANGA: And who else?

MR MHLONGO: The one I know as Makeke resided in Zone 5.

MS MTANGA: Zone 5 where?

MR MHLONGO: I just know that it's Zone 5. I don't know the address.

MS MTANGA: Zone 5 in Diepkloof or...?

MR MHLONGO: Yes, in Diepkloof.

MS MTANGA: You also stayed in Diepkloof, didn't you?

MR MHLONGO: Yes.

MS MTANGA: You knew where he stayed.

MR MHLONGO: Yes, I knew where he stayed.

MS MTANGA: And who else was a member of the Jack Rollers?

MR MHLONGO: And the late Jerry Mkhwanazi.

MS MTANGA: And where did he stay?

MR MHLONGO: He stayed in Zone 5 as well.

MS MTANGA: You also knew where he stayed because that was also in Diepkloof.

MR MHLONGO: Yes. And DR. He was called DR.

MS MTANGA: And where did he stay?

MR MHLONGO: In Zone 1 he stayed.

MS MTANGA: In Diepkloof?

MR MHLONGO: Yes.

MS MTANGA: And you also stayed in Zone 1 Diepkloof, didn't you?

MR MHLONGO: Yes.

MR MOKHANDA: And who else?

MR MHLONGO: Bench, we knew him as Bench Vusi, his name. Bench.

MS MTANGA: And where did he stay?

MR MHLONGO: He stayed in Zone 5.

MS MTANGA: Diepkloof?

MR MHLONGO: Yes.

MS MTANGA: And who else?

MR MHLONGO: Well, I believe those are the ones I remember. There may be some I'm omitting but I remember very well these ones that I've mentioned.

MS MTANGA: And roughly how many people constituted the gang?

MR MHLONGO: They would fill a minibus, a 10 seater.

MS MTANGA: So about 10 people constituted the gang?

MR MHLONGO: I think so too.

CHAIRPERSON: And you were convinced that these people were the troublemakers for the community.

MR MHLONGO: I saw that.

CHAIRPERSON: Now why didn't the SDU attack those houses of those leaders? If they were causing so much problems?

MR MHLONGO: As I said the SDU's mission was not to attack people, but to protect. So the people who were attacking their houses were the comrades - school kids that is. So we wanted them, because we were not fighting with their families. We were only fighting with them. We only wanted them.

CHAIRPERSON: Right. Why didn't you attack them?

MR MHLONGO: Well, we attacked them.

CHAIRPERSON: When? You now said the school kids were doing that.

MR MHLONGO: You see, the school kids, out of being highly infuriated they went to attack the houses. But we wanted them in person. You see, the school kids were always fighting with stones. They would pelt stones to those houses. But then we wanted them, and we always wanted to target their places where they were going to, to get them in person. We did not bother about attacking their houses because we were not fighting with their families.

CHAIRPERSON: Why didn't you just go into his house and take them away and then deal with them?

MR MHLONGO: We were very highly disciplined as SDU members and we knew very well that by so doing we would be also harassing and torturing their families. As we said, their families we did not deem as part of this. We wanted the people, the real people.

CHAIRPERSON: Well, how was the policeman killed then?

MR MHLONGO: Can you please repeat your question?

CHAIRPERSON: How was the policeman killed then?

MR MHLONGO: We were coming - you see, there was a comrade Wian Mapatla who was shot by the police and during those days we will be going to his house and going to convey our condolences to the bereaved family. And we were there in Zone 6. Comrade David Slovo Diwuitlileng suggested then that he knew that at Diepkloof Hotel he's always patronised by the police, he always will go there to drink there. So how if we go there at that particular Hotel to disarm the police? We had gone there not with the intention to kill, but to disarm them of their arms. And when we go to the Diepkloof Hotel indeed we found them there in their uniforms inside. We saw their firearms as well but they were quite many in number and we then caucused amongst ourselves as to how we would operate this. And strategies to employ to further the mission upon which we were there for. And we decided to wait for a while. And the ones who will lead will go approach them. And indeed two left the group, that was seated there.

CHAIRPERSON: What's the name of this Hotel?

MR MHLONGO: Diepkloof Hotel. It was called DH.

CHAIRPERSON: Are there any people who went with you on that mission who have applied for amnesty?

MR MHLONGO: Who had gone with me and applied for amnesty? You see, all the people I was in the company of then were killed by the Jack Rollers as well. My best friend, Comrade Nisi together I was arrested with.

CHAIRPERSON: So all your colleagues are dead. Are they dead?

MR MHLONGO: Yes, they're all dead. Three. One committed suicide.

CHAIRPERSON: Carry on.

MR MHLONGO: It so happened that the two left the others who were seated. You see, between the two the one was in full uniform, blue uniform. The other had only prison warder trousers on, uniform on. And we followed them and we were talking. And David - Comrade David Slovo said you will approach them from the front and point at them. And we will be behind and we will disarm them. So that was the strategy we had. And when they got to the terminals or the bus rank next to Baragwanath, when they were already there and as I was also approaching them from the front, about 3 metres in front of them and I cocked my gun and pointed it to them, and instructed them to raise their hands and one left, sort of running away. And the other was trying to withdraw his gun and I shot at him three times and fled the scene.

CHAIRPERSON: So you didn't get any guns.

MR MHLONGO: As it was said, the ones who would be approaching from behind, they would be the ones who will now disarm them, take away their guns from them. But it was never fulfilled because there were so many people. You will also remember this happened at the rank.

CHAIRPERSON: So you're telling me that in the rank, there where all these people were you pointed the gun with the plan that these policemen would be disarmed. Despite you shooting the one, you people never acquired firearms from the cops.

MR MHLONGO: I was already done. You see, I had already finished my role.

CHAIRPERSON: Did you or did your group not take guns from the police?

MR MHLONGO: No, we did not succeed.

CHAIRPERSON: That was the purpose according to you of the exercise.

MR MHLONGO: The whole thing was blown out of proportion. We were no longer now able to adhere to the plan that we had. They could not take the guns, the ones who were approaching from behind.

CHAIRPERSON: Why not?

MR MHLONGO: You see, people started screaming around and there was just commotion there in the rank. Let me try and explain it this way.

CHAIRPERSON: Come Mr Mhlongo, look here; I'll explain it to you. You and your colleagues decide, according to your version to disarm the policemen whom one of you knew was at a certain hotel. Somehow this plan had to take place near a rank. You knew it; your colleagues knew it. You were told to point a fire-arm at these policemen or one policeman from the front, which you did. The others who were at the back were planned to disarm of his fire-arm, or them of their firearms. Your gun was cocked. It had bullets in. You people knew that if necessary, you were going to shoot him. Not so? The possibility that you would shoot him did exist before you went to point that gun. Not so?

MR MHLONGO: No (speaks further in Xhosa - not translated)

CHAIRPERSON: Then why did you cock your gun? Why was their bullets in your gun then?

MR MHLONGO: Well, I will say that beyond any doubt that if it was necessary for me to kill, I would have killed anyway because he was a policeman. If I deemed it necessary. But on that particular day it was not my intention to kill, but to disarm. But upon... (intervention)

CHAIRPERSON: Why did you shoot him then?

MR MHLONGO: You see, these were two people, the one is leaving the scene and I don't know what he was up to as he was moving away. Then I heard ...(tape ends)

.... now I had to do something because I instructed and the other is moving away and I had no option but to carry on shooting.

CHAIRPERSON: Why? Why didn't you run away?

MR MHLONGO: Also I hated the police. You see, I took them as part of the perpetrators of the violence in the area. I hated them so much.

CHAIRPERSON: Why didn't you plan to shoot him in any event then?

MR MHLONGO: May you please repeat your question?

CHAIRPERSON: Why didn't the plan include shooting and killing him in any event? Why plan look, we don't intend to kill this policeman, we just want to disarm him, but we're going to leave him alive afterwards? Why have that plan?

MR MHLONGO: You see, the person who proposed this attack was David Slovo. I think he is the one who will be able to furnish you with an appropriate answer in this regard.

CHAIRPERSON: You just told me he's dead, so he can't. That's why I'm asking you.

MR MHLONGO: Well, I followed the instructions that I should only point the gun at them but as soon as he moved his hand towards his waist, I shot.

MR MALAN: May I just ask, is Slovo dead?

MR MHLONGO: Yes. He was... (intervention)

MR MALAN: Why did you tell us that he will provide - we should ask him; he's the one to provide the answers? Why did you tell us that?

MR MHLONGO: I mean - what I mean is that Slovo is the one who ordered us to do as we did. So that I am not in a position - because Slovo was the commander of my unit and therefore I took all the orders from him. So he will be the one who knew better than I.

MS MTANGA: Thank you Chairperson. Mr Mhlongo, you seem to have personally known these Jack Rollers members to the point of knowing where they lived. What did you know about Assan Mkhwanazi and what incidents had he been involved in that you personally knew?

MR MHLONGO: Well, when I say I knew them, I did not know them personally. I knew of their deeds, all the things they committed. He was part to that and raping, shooting school children in the school premises and doing all of that shooting at the shops, school children, even shooting Comrade Joe. He was part of them.

MS MTANGA: Did you personally see him participating in these incidents?

MR MALAN: Sorry Ms Mtanga, I'm not sure that this answer related to your main question. The question was what did you know about Mkhwanazi?

MR MHLONGO: He was always in the company of Jack Rollers and part of the vigilante, the umlwendes.

MR MALAN: Was he part of the gang?

MR MHLONGO: Yes, he was part of the vigilantes, the umwlendes.

CHAIRPERSON: Was he part of the Jack Rollers? A member of the Jack Rollers?

MR MHLONGO: I do trust and hope, the Adv Sigodi had asked me to count them and to name them, he was part of the Jack Rollers as well.

CHAIRPERSON: You didn't name them, did you? Oh, Jerry Mkhwanazi.

MS MTANGA: Do you personally know of incidents in which Mr Mkhwanazi participated? Assan Mkhwanazi participated?

MR MHLONGO: Yes.

MS MTANGA: What incidents are those?

MR MHLONGO: There was one day when they were all together, the ones I had named and others that I did not name. And it so happened that one day Comrade Joey who was still part of us as SDU, although he was not in my unit, as Judge Pillay had asked as to what would I do during my free time. So Joe during his free time, he would go and help Chigo Twala, the singer, the artist. And he will go transport them around, especially when they have to go perform in some places. So it so happened that one day when he was in the filling station, filling up the car at the garage, and Jerry together with his gang found him there. Because we come from one location in Diepkloof we know one another and they knew that they were looking for who and as soon as they recovered him they shot at him and killed him, and took the car that belonged to Chigo Twala and drove away in it.

MS MTANGA: If I understand you well, are you saying that the Jack Rollers shot Joey?

MR MHLONGO: Yes, they shot Joey.

MS MTANGA: And then what other incidents was Assan Mkhwanazi involved in that led to his death, or that made you feel that he was part of the Jack Rollers?

MR MHLONGO: In this shooting that I have already talked about or addressed they will shoot shots and attack schools. He was part of them. He was always part of such activities.

MS MTANGA: Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS MTANGA

RE-EXAMINATION BY MR MOKHANDA: Mr Mhlongo, you testified that you always carried a gun and it was bridged. Correct?

MR MHLONGO: Yes.

MR MOKHANDA: Why was your gun always bridged?

MR MHLONGO: You see, amongst the self-defence units we would be taken out to attend crash courses as in training and I was always taught that my gun should always be cocked and use the safety pin always.

MR MOKHANDA: Okay. And in terms of your unit you talked of four people. And were they always present when you executed all the two incidents that you are here for?

MR MHLONGO: The two that brought me here, they were always part. They were always with me.

MR MOKHANDA: Can you briefly explain the planning thereof and the directives that were taken in these two incidents? Like were they done well in time, instantly or what?

MR MHLONGO: Well, let me first address the first one, the Mhlwembe one. That the plan, how it was brought up. As I had already explained that Joey was shot in ...(indistinct). There's one thing I omitted. As he was shot and the car was shot, but he survived. So we would always be in his house and also providing security services so to speak to Chigo. So we always used his house as our shelter or base, because no-one would have suspected his house, that we will be there. So one day there was information that we got, although I don't quite remember. The information we got was about the late, that he was in one of the parties in Zone 1. We did not waste time thereafter and we all went into the car. This is where I was given a gun by Comrade David Slovo Diwuitlileng. He gave me a 9 mm fire-arm and we all had cocked them as the instruction from the crash courses and we would then be using safety pins. And we left with immediate effect to that place in Zone 1 that is. And as we were driving to the place in the car we were talking. We said - even before I alighted from the car they said you get in and show and ascertain the fact that he, the late is there. And as I got in I found him there. Because I hated so much his actions and deeds, I did not even go back to the car to report that he was there. I shot him at the spot and killed him on the spot.

MR MOKHANDA: So if I get you correctly it was - all the planning happened very quickly during a very short period of time.

MR MHLONGO: Yes.

MR MOKHANDA: The same kind of planning happened when you went to DH, when the two police left. You immediately planned it along the way.

MR MHLONGO: Yes.

MR MOKHANDA: No further questions Chairperson, thank you.

NO FURTHER QUESTIONS BY MR MOKHANDA

ADV SIGODI: Mr Mhlongo, can you tell me what political objectives did you seek to achieve when you killed Mr Mkhwanazi?

MR MHLONGO: Well, as the SDU's it was our duty to deal with the vigilantes. As I have said earlier on that we took the late as part of the vigilante and the security force will deal with and the Inkatha people will deal with as well. So he was part of them. So as I said that he would take away the confidence of the community to paint and portray a picture to the community that it was not safe at all. So that people no longer feel safe because of their deeds. So we intended to kill them, and eliminate them so that the area gets stabilised once again. And the kids or school children go back to school and everything go back to what it used to be. So I was now in a mission of taking back the situation to what it used to be.

ADV SIGODI: At the time of the ...(indistinct) the Jack Rollers were mostly in Diepkloof.

MR MHLONGO: Yes.

ADV SIGODI: And you knew them long time, I mean you had known them for quite some time.

MR MHLONGO: As I said, that we came from one location and others we grew up together. From childhood.

ADV SIGODI: Was Jerry Mkhwanazi the only one who was shot of the Jack Rollers? Who was shot dead?

MR MHLONGO: No.

ADV SIGODI: Who else was shot?

MR MHLONGO: You see, this unit was - I played a role in the killing of Jerry but Jeff Brown, Slovo was together with other comrades in killing him and Bench Vusi, there was another unit, SDU unit that is, who killed them. And the one person who survived was DR. Otherwise the whole of them, the SDU's dealt with them although I was not there.

ADV SIGODI: Were the others killed before Jerry or were they killed after Jerry Mkhwanazi?

MR MHLONGO: Like Jeff Brown who was killed before Jerry Mkhwanazi. And Makeke died before Jerry Mkhwanazi as well.

ADV SIGODI: And DR, what happened to him?

MR MHLONGO: Well, I say he's there and I hear about him that now he stays in town and I think his family had a role to play in protecting him.

ADV SIGODI: Do you know Michael Silawe?

MR MHLONGO: No. Maybe if you describe him, that would help.

ADV SIGODI: You see, in the criminal case Philip Mkhwanazi gave evidence - you know Philip Mkhwanazi, the brother to the deceased? Pg. 51. Do you remember that off-hand?

MR MHLONGO: Well, so many things happened and this happened a long time ago. I know for a fact that there were witnesses. It may be so that he was there as well, but I have no clear recollection of the person.

ADV SIGODI: He was the person who gave evidence about what happened at Dr. Khumalo's place where the deceased and his brother was drinking. I think that was the only witness who could testify as to what actually happened during the shooting. Do you remember that? The brother to the deceased.

MR MHLONGO: As I say that there were others. That is not in dispute. I don't remember - I've been in prison for a long time. I don't remember, although I don't dispute the fact that he could have been there. But I don't have any clear recollection of what you are talking about.

ADV SIGODI: You see, what concerns me here is that on pg. 51, I think it's line 26, Philip Mkhwanazi, the brother to the deceased testified that as they were drinking, Michael Silawe came in and said there is guests here today. And that notwithstanding this managing ...(indistinct) Philip Mkhwanazi did not take it seriously because he thought that Silawe was drunk. And then shortly thereafter his brother was shot. Seems like there was another person who happened to know about the shooting prior to this Michael Silawe whom you are not mentioning to us.

MR MHLONGO: Honourable Advocate, I had already alluded to the fact that when we were there in Chigo's house, some source brought some information that I don't remember now. It could have so happened that that person knew what was going to happen because he knew, because he could have seen us before we got in. But the person you are referring to, I don't know. But it can be so, but I don't know. There is a possibility, but I don't know.

ADV SIGODI: You don't even remember this evidence being led in court?

MR MHLONGO: It's been too long and there are so many things I've already done, and I've forgotten what things were being said or said in court, especially that my statement that I advanced at the Court of law was just full of lies because I was coerced into submitting a statement. And the fact that I'd killed a police, it was not going to be a joke to them. So it was all a myth that I conveyed there. And that helped me, because I was not given life sentence. So it alleviated at least the fact that I forwarded or advanced lies.

CHAIRPERSON: So you say that what was contained in your statement in regard to the policeman is a tittle of lies? To the Court?

MR MHLONGO: Everything that I uttered, even the statement I submitted, I had been coerced. So all of what was contained there is pure lies. This is why I did not want to mention people like David Slovo and Comrade Solimo Gase. So I lied purely because if I had told the truth, it would have been very apparent that I was SDU and that could have led to me getting life sentence. So I lied. Everything there was just not true. Fabricated.

CHAIRPERSON: So anybody repeating that story would be lying. That story contained in that statement. Would not be telling the truth.

MR MHLONGO: Yes, the statement is pure lies.

CHAIRPERSON: But if someone had to come here and tell us the same story as contained in the statement, that would not be the truth.

MR MHLONGO: Yes. You see, the people who were there, have all passed away, have since died. So it will be a lie.

CHAIRPERSON: No. Listen to me. You come and tell us now that what is contained in that statement was something that you fabricated because you were coerced to make a statement. I quite understand that. I'm asking you: what is contained in that statement, if someone had to come here and repeat what is contained in that statement, that person would not be telling us the truth. Do I understand you correctly?

MR MHLONGO: Yes, that is so.

CHAIRPERSON: What would you say if I say that substantially what is contained in that statement is exactly what you tell us?

MR MHLONGO: I remember quite a bit about the statement. You see what is there that I repeated is the way the person was killed. That I did divulge to the police. But what I did not disclose were my colleagues. I only mentioned Vilapi Ndlela who was not even there. But about the killing of the person is exactly as I have related.

CHAIRPERSON: Now what did you mean by saying that the whole statement is lies, is untrue? You just said so.

MR MHLONGO: Yes.

CHAIRPERSON: Now you come say no, partly it's true; it's just that the names and addresses perhaps of your colleagues were not mentioned.

MR MHLONGO: You see, I was arrested for murder. So the murder had somehow to appear in my statement. Besides that there wasn't anything I knew of. So the police also had interest in this. So if I had divulged the objectives of the unit politically, that would have led me to get a life sentence.

CHAIRPERSON: No, you see, you're not dealing with the issue I raise with you. And I'm not trying to catch you out or embarrass you. I've got to - with my colleagues - have to make a decision on your future. I want to be put in the best position to consider all the facts. I don't want to go away from here and consider the facts and think to myself I didn't give you an opportunity to deal with the issues. Do you understand? I prefer to ask you those issues now so that you can tell me what the position is. Do you understand?

MR MHLONGO: Yes.

CHAIRPERSON: Now earlier you told me whatever is contained in that statement is a pack of lies because you were coerced to make the statement in the first place. Do you recall you saying that?

MR MHLONGO: Yes.

CHAIRPERSON: Now I point out to you that substantially what is contained in that statement is precisely what you told us today.

MR MHLONGO: Please may you bring that up and show me?

CHAIRPERSON: I'm reading from the judgment in the matter where Swart J was the Judge. It is the case in which you were accused No. 1, Jeffrey Mnisi was accused No. 2 and Velapi Ndlela accused No. 3. Okay? Now in that judgment on pg. 63 thereof, pg. 138 of our record, he quotes the statement which was Exhibit G1 in the trial. And it's a combination of the statements you made as accused No. 1 and what you said when you pointed out certain issues. And I'm going to read. It's written in Afrikaans. I don't know if there's anybody who can translate?

TRANSLATOR: We don't have an Afrikaans interpreter.

MR MOKHANDA: Unless you go through it slowly Sir.

CHAIRPERSON: Well, I'm going to try my best to translate it into English and read it, and then you can translate it to him.

"When we got to the taxi rank, it was already dark. We went nearer. I produced my 9 mm. short and approached the policeman from the front. I aimed my weapon at the policeman. I aimed it from the front."

The accused had indicated by motion that he had aimed it at his chest and head area.

"Mavaya had stood alongside the policeman. He also pointed his fire-arm at the policeman. Jomo and Richard went to stand behind the policeman. We told the policeman we wanted his fire-arm. We want to take it. The policeman then began to take out his fire-arm and then we shot the policeman once with my fire-arm."

The deponent indicates - I assume by motion - the front side of the stomach and chest area.

"The policeman fell. I also saw that Mavaya shot at him. After the shots people from the rank came nearer. They shouted that we were from the Inkatha. All four of us then ran away. We did not take that policeman's fire-arm."

Did you hear that?

MR MHLONGO: Yes. This is why I said, even reiterate the fact that what's contained there is pure lies because Richard was not there. Velapi was not there as well. And I'm the one who shot at that person. I shot three times. The people in whose company I was, were not there. I did not point at. So the people as they were shouting, saying I'm Inkatha, I was also trying to convince people that I am part of SDU so that when we get to the Court of Law the whole case will be perceived not political. But I did shoot at the person alone in the absence of Velapi. And the Court of Law also proved beyond reasonable doubt the fact that Velapi was not there. Richard as well. Richard and Velapi, how they come in; let me try and explain this to you.

CHAIRPERSON: Wait, wait, wait, you're wasting time now. All I asked you was, did you hear what I said? We're not going to re-run your trial. Did you hear what I said?

MR MHLONGO: Yes, I heard what you said.

CHAIRPERSON: I want to point out to you that you also mentioned Jomo's name in your statement. But that's by the way. Maybe you can think about that. Do you agree that substantially what you told us today is contained in the statement that was produced in the court? I'm not talking about coercion; I can understand that. Perhaps I even accept that you were coerced. Never mind that now. The version you produced today in this hearing, would you agree is substantially the same as it appears in your statement?

MR MHLONGO: It did not happen like that. As I'd like to repeat... (intervention)

CHAIRPERSON: But what you told us today or like you said in your statement?

MR MHLONGO: What I say today is the truth. It's the only truth and this is what happened. As I said that Richard - I mentioned Richard but he was never there.

MR MOKHANDA: Chairperson, I wish to clarify something. When you asked the question we were talking about Jerry. And that statement you refer to is about Joe. And I believe it confuses the issues here.

CHAIRPERSON: About whom?

MR MOKHANDA: When you asked the question we were talking about Jerry, about the statement. About the witness we were talking about on pg. 51 as the source. But the question you ask now is about Joe. So it confuses issues somewhere. I wonder if that could be clarified, because it looks like he's not sure which statement you're referring to and he's trying to clarify a point that he's not clear on. It's my point of view.

CHAIRPERSON: Well, I'll be surprised if he's confused having read the contents of his statement. I told him it is the matter in which him and two others were charged in front of Swart J. The statement I read out deals specifically with the shooting of a policeman.

MR MOKHANDA: Correct Chair, but what I'm saying is when the question came, when you firstly asked about the statement we were talking about Jerry. I just wanted to get clarity along that line. Because it looks like he confused issues.

CHAIRPERSON: I'm going to give him the benefit of the doubt. I have serious reservations as to how he could be confused, but to his benefit we will start again.

MR MOKHANDA: Thank you Chair.

CHAIRPERSON: Mr Mhlongo, you realise that the statement and the questions I am asking you in relation to your version and contents of your statement relates to the killing of the policeman. Do you understand?

MR MHLONGO: Yes.

CHAIRPERSON: You're not confused about that.

MR MHLONGO: Yes. You see, I did kill the police. That is not confusing to me.

CHAIRPERSON: Precisely. Both of us know what we're talking about. Am I correct? We know the incident we're referring to. There's no confusion.

MR MHLONGO: You mean the one of the police?

CHAIRPERSON: Ja. Do we agree, there's no confusion?

MR MHLONGO: You see, I'm not confused as such but what I'm trying to disclose to you... (intervention)

CHAIRPERSON: All I'm asking are we confused ...(indistinct) and correctly so, that there may be confusion. I'm just clearing that up with you. Do we agree there's no confusion? You know what you're talking about and I know what I'm talking about.

MR MHLONGO: Yes.

CHAIRPERSON: Now I'm comparing the version you give to us today and substantially the version that is contained in that statement used in your criminal trial. I'm telling you, barring the difference of one or two names, the basic version is the same. Would you agree?

MR MHLONGO: Yes, there is some similarities.

CHAIRPERSON: The major portion of it. With the exception of Mavaya and Richard, and their attendance the version you give in this hearing today is the same. Would you agree?

MR MHLONGO: Yes, I do agree.

CHAIRPERSON: Now unfortunately the whole statement is not here. Or I haven't seen it. I don't know if anybody else has seen it. It seems to me in your statement that somewhere during that trial it was alleged that you were part of a gang. And this is on pg. 139 of our record, the beginning of the last paragraph. The exercise you were party to, was referred to as the activities of a gang. Is that true?

MR MHLONGO: Maybe when they referred to a gang they mean SDU because I was in an SDU and we were always acting in a unit.

CHAIRPERSON: Did you tell the Court you were part of the gang to protect the SDU's or did you make mention of that in your statement to protect the SDU or what is the position? Or did you tell them you were a member of the SDU?

MR MHLONGO: As for SDU's I did not disclose even one single thing at the Court of Law because they would have required more and I would have been placed in a position where I would have to divulge more names now, implicating other comrades.

CHAIRPERSON: Can you indicate to us where the Judge would have got the idea that you were party to a gang?

MR MHLONGO: As I said that it could have happened that the policemen thought that SDU's were gangs. And many people had no idea of the SDU's.

CHAIRPERSON: I'm not talking about the police and their interpretations and their activities. The activities of the police at that stage of our history was not something that one can readily rely on. I'm asking you, you were present in the trial. Was there a suggestion that you were party to a gang during the course of the trial?

MR MHLONGO: No, I don't remember. But it may be so that they spoke or they talked about the gangs but I don't remember.

CHAIRPERSON: Were you party to a gang ever in your life?

MR MHLONGO: No, I never was. Since I became a comrade to when I became an SDU member.

CHAIRPERSON: Before that? You say since you became an SDU member you weren't a gang member. What about before then? Before you became an SDU member?

MR MHLONGO: No. I was a student, a loyal student and go to church on Sundays. Churchgoer.

CHAIRPERSON: Now - Wynand?

MR MALAN: Mr Mhlongo, I have a few questions. Adv Sigodi did touch on this, and this is the question relating to the evidence adduced at this trial saying that there would be death that day. If I can just find the place now again.

MR MOKHANDA: On pg. 51.

MR MALAN: Now the question was put to you whether the name Michael Silawe is known to you.

MR MHLONGO: No.

MR MALAN: You don't know the name at all; you've never heard it?

MR MHLONGO: What I mean is at the Court of Law that name could have been discussed, but I don't remember.

MR MALAN: Can you remember at the Court of Law that there was evidence that someone - you simply can't remember the name, but that someone said "there is death here today". Can you remember that from the Court of Law.

MR MHLONGO: That I don't dispute, but I don't remember.

MR MALAN: So you don't remember that such evidence was given.

MR MHLONGO: No, I don't remember.

MR MALAN: Do you remember that Philip Mkhwanazi gave evidence?

MR MHLONGO: There was a witness, but I don't remember.

MR MALAN: Can you remember anything about the trial?

MR MHLONGO: Well, it's quite some time. I don't have a clear recollection of the proceedings and what happened and the discussions thereof. I don't have clear recollection of that. Also take into consideration the fact that this happened some time ago.

MR MALAN: Can you remember that at the trial - I'm referring you to pg. 65, this is line 16 - it's stated here that your counsel put the question to Philip Mkhwanazi and referred to some altercation, some squabble, some fight of whatever nature - it's not clear - that you had with the deceased a week before you killed him. Do you see that?

MR MHLONGO: Yes.

MR MALAN: Now tell us about that fight.

MR MHLONGO: I never had an altercation with the late. As I said that the police coerced me to say something and I said whatever came into my mind then.

MR MALAN: Let me interrupt you straight there. I'm not quoting your statement. I'm stating what your advocate put to Philip Mkhwanazi who gave evidence at the trial. This question was put to Mkhwanazi by your advocate at your instructions at the trial. Not when you made a statement.

MR MHLONGO: That I don't dispute.

MR MALAN: Now where did your counsel get this information about the altercation? Who told your counsel?

MR MHLONGO: You see at the time of this trial that was my attitudes that. It so happens that I did say that, because that should have been in line with the statement I handed to the police. Everything was in line with the statement I handed to the police at the time.

MR MALAN: Now where in your statement did you say this? Because the Court does not refer to that in the judgment, but you've said this in your statement? In fact, if I remember correctly you didn't say that in your statement. Oh ja, you might have - let me just see. Yes, you did. Indeed you did. So my apologies. So there was never any altercation with the deceased.

MR MHLONGO: No.

MR MALAN: The girl that you refer to is a fiction (sic) of your imagination there.

MR MHLONGO: Yes, I think that is the reason why but it wasn't. This is what I pretended was the reason, but in actual fact it wasn't.

MR MALAN: You did not have your counsel put any questions to the witnesses at the trial about their gangsterism activities. And the raping of the women, the intimidation and the terrorising of the community. Why not?

MR MHLONGO: Because I did not want the SDU activities and everything about the SDU's to be disclosed. Everything I said there was pure lies, and no-one could have relied even in the proceedings of that Court. Even the Judge himself, no-one at the time could have really trusted the system.

MR MALAN: Now who told the police about Jeffrey Mnisi’s involvement in the killing of the policeman?

MR MHLONGO: We were arrested together with Jeffrey. And on our arrest it was apparent that there was information that leaked, and we realised that it leaked from Richard.

...(end of tape)

MR MALAN: Now you also gave evidence, you said that when you entered that party in Zone 1, you were given instructions by Slovo to basically do a reconnaissance and report back about the presence of the late as you testified, of the victim.

MR MHLONGO: Yes.

MR MALAN: And yet you go in and you kill him on the spot.

MR MHLONGO: Yes. If I'd gone out, back to the car maybe one of them would have said somebody should go back to kill him. Because that was the reason why we had gone there, so that when I got inside the house and realised that he was there, I knew very well what the next step was going to be. It was obviously going to be the killing, and I decided to do it on the spot, right then.

MR MALAN: So why would someone be sent in to check whether he was there and report back? Wasn't that the instruction? The plan was not to kill him, but to see whether he was there and then to report back.

MR MHLONGO: I hated their activities, the vigilante ...(indistinct) that is. I had this deep-rooted hatred towards their activities, actions and deeds so that upon realising that he was there I took it upon myself to execute the killing.

MR MALAN: You see, that's exactly I think our problem. Is that there was no decision that he was to be killed; that you did that - as you've given evidence time and time again - because you hated them so passionately.

MR MHLONGO: No, no, no. When we left Chigo's house, when we got this information and acting upon it, we decided that we will kill him. But inside the house we talked otherwise and said he may be there or not, but the fact that he shall be killed had been already uttered. And when I got inside to check, I saw him. And to avoid what could transpire after that, he could have seen me first and he could have killed or could have acted upon that. But then I decided I should kill him right away, and on the spot.

CHAIRPERSON: Mr Mhlongo, when you were arrested on 1 November 1998, was that the first time you were arrested ever?

MR MHLONGO: No. I'd already been arrested before for a long time. And I think that's one cause of my hatred towards the police because I'd been there in the detentions without trials and I could be arrested maybe in cases like we would be having meetings and they will have a list of names of the people who attend such meetings and they will arrest me due to that, and during the 1980's as well I would be in and out the custody or prison.

CHAIRPERSON: I can understand your sentiments by being arrested for political reasons. Were you ever arrested for criminal matters?

MR MHLONGO: Yes, that is true. I have been arrested on criminal basis. For robbing the white man's house and stealing as well.

CHAIRPERSON: How many times? Were you convicted?

MR MHLONGO: I was arrested once and received lashes.

CHAIRPERSON: And received?

MR MHLONGO: Lashes and five years suspension.

CHAIRPERSON: When was that?

MR MHLONGO: I don't remember. But the fact that I've been arrested, I remember it quite clear. It stands out.

CHAIRPERSON: When did you become a member of the SDU?

MR MHLONGO: Towards the end of 1990, beginning of 1991. Between the two years.

CHAIRPERSON: You were convicted in February 1991 of housebreaking.

MR MHLONGO: That I don't deny and I agree to that. It was - I think I was convicted on that day or date.

CHAIRPERSON: When you were convicted of housebreaking and theft of items valued to R6 000. Correct?

MR MHLONGO: Yes.

CHAIRPERSON: And you were sentenced in June 1991.

MR MHLONGO: Yes.

CHAIRPERSON: You say you were a member of the SDU already at that time.

MR MHLONGO: Yes, I was a member of SDU already. But the one thing that I'd been arrested for was not part of the activities of the SDU.

CHAIRPERSON: No, I quite understand that. I'm happy to hear that. The commanders of the SDU, did they know what happened to you?

MR MHLONGO: No.

CHAIRPERSON: Now tell me, when you went on this escapade of housebreaking, was there anybody with you?

MR MHLONGO: I was taken by - brought there by somebody else and I did for myself in the act.

CHAIRPERSON: How many of you were there?

MR MHLONGO: We were two.

CHAIRPERSON: How did you get there?

MR MHLONGO: We went in a taxi.

CHAIRPERSON: What did you take there from these people?

MR MHLONGO: We were arrested in the act, inside, when we were still collecting some of the goods. Or items in the house. And we were arrested right in the act.

CHAIRPERSON: What were you planning to take?

MR MHLONGO: Well, I'd intended to take things like firearms myself. That is me.

CHAIRPERSON: Weren't you convicted of stealing items like furniture to the value of R6 000?

MR MHLONGO: As I said that I don't dispute that. I do agree that we were arrested in the house, in the act. There were already things or items that we had collected and put aside. But my key intention here was to get firearms.

CHAIRPERSON: Tell me, when you committed this offence, were you a member of the SDU already or not?

MR MHLONGO: I don't remember. But it may be so that I was already a member of the SDU. It's possible.

CHAIRPERSON: Why do you commit these criminal offences while you're a member of the SDU then? You said the SDU was discipline.

MR MHLONGO: Yes. SDU's is true, they're highly disciplined. And I had gone there not intended to do so, but I was influenced by those persons in whose company I was. But it was not out of my own initiative. I was influenced by those persons.

CHAIRPERSON: So that was a private escapade. You and this other person.

MR MHLONGO: I may say so, yes.

CHAIRPERSON: So it's not an SDU operation.

MR MHLONGO: Not at all. SDU would have never done something like that.

CHAIRPERSON: Why did you want firearms there?

MR MHLONGO: Well, I also wanted to collect firearms for myself, for my own defence even in the house, to be armed with such weapon. You see, the SDU gave me a fire-arm on 1 September. That was my first time. And after committing the operation they would then take them back. So I wanted my own fire-arm, the one that I will own and keep in the house.

CHAIRPERSON: You didn't want to arm yourself for further criminal activities? Isn't that so?

MR MHLONGO: No. I would have just armed myself for my own defence, and own one.

CHAIRPERSON: How many firearms had been collected in that house when you were caught?

MR MHLONGO: I think we did not even get one, because we were caught right in the act, in search of firearms.

CHAIRPERSON: No, you just told us that you had placed these firearms somewhere ready to take it when unfortunately you were caught in the act.

MR MHLONGO: No, I think this is what was interpreted. But I said there were already items - that's what he said - that there were already items that we had collected and put aside. And we were still searching more for firearms in the bedrooms. On the side we had hi-fi's, TVs, part of furniture that we had already collected and put aside.

CHAIRPERSON: You're going to carry hi-fi's and TVs out of that house. Is that how I understand you?

MR MHLONGO: Yes, it could have happened like that because the person I was with there had said we'll take them and hide them somewhere and get transport to fetch them in due course. I would like to ask one question Honourable Judge. This what we are talking about now, how does it fit in this application?

CHAIRPERSON: I want to establish whether you were involved in gangster activities, rather than what you tell us. Do you understand us?

MR MHLONGO: No, I was not a gangster. And what brought me here is to tell the truth. This is why when you even asked me about the criminal acts I do agree and don't deny anything. But it was outside now the ambit of the acts of the SDU's that I say that there is no correlation between the criminal acts and the SDU activities. And the person I was with had influenced me to do this, but not for the furtherance of the SDU mission.

CHAIRPERSON: Who was this person?

MR MHLONGO: I know him as Bibi. I don't know his full names. I only know this one, Bibi that is.

CHAIRPERSON: How many people were in your unit of the SDU?

MR MHLONGO: We were eight in all in my unit.

CHAIRPERSON: And what did you do as a member of the SDU? What were your duties?

MR MHLONGO: Our duties were comprised of - you see, the unit I belonged to I was supposed to fund raise, get transport, get firearms and ammunition. But I never did the fund-raising work. But I got firearms and brought them to SDU and I will organise transport as well for things that had to be done and needed transport. I will go and talk to people; elderly, respected people and tell them our situation and ask for transport and sometimes they will offer to drive themselves and there were firearms that already brought them. Besides this case there were other firearms that I took to the SDU, to the unit.

CHAIRPERSON: And you say the rest of your members of the unit are all dead. Or what is the position?

MR MHLONGO: No there are some who are still alive. Like Action and Gadaffi. You see, I counted four because I went to this mission with them. But there were others I left out because they were not part of this mission, but belonged to the unit.

CHAIRPERSON: Why didn't you tell your commanders you had been convicted of housebreaking?

MR MHLONGO: He will not question me regarding my personal things or activities.

CHAIRPERSON: Why didn't you tell him?

MR MHLONGO: I did not think about it.

CHAIRPERSON: And you say when you were not on SDU duties you would have to give your gun back. To whom would you have to give that gun back?

MR MHLONGO: Slovo would be the one who will take it.

CHAIRPERSON: And that day when you killed the policeman, were you on duty?

MR MHLONGO: Yes, we were together with Slovo.

CHAIRPERSON: What were you busy doing that day?

MR MHLONGO: We were at Vuyani Mabatla's house and we left the house. Vuyani Mabatla is one of the people who had been killed by the police. And we were there to convey our condolences to the bereaved family. And he belonged to the other unit of the SDU and also a Cosas member as well. And we were there as I said to convey our condolences to the bereaved family and from there, that's when we decided to go and approach the police and disarm them of their firearms.

CHAIRPERSON: Wynand, have you got...?

MR MALAN: Now this leads right up to my last question. You leave the Mabatla's house; he had just been killed, he's a member of the neighbouring SDU. With other Cosas members... (intervention)

MR MHLONGO: Yes.

MR MALAN: Sorry?

MR MHLONGO: Yes.

MR MALAN: You decide then to leave and there and then you go and look for police to disarm the policeman.

MR MHLONGO: Yes.

MR MALAN: After the police had killed Mabatla.

MR MHLONGO: Well, that was a usual occurrence to disarm the police. But we were coming, on that particular day we came from Vuyani's home. That's where this all started.

MR MALAN: Ja. Now I just find it very strange that a colleague of yours, a comrade is killed by the police and your retaliation is to go and disarm a policeman. Any policeman.

MR MHLONGO: Yes.

MR MALAN: It so happens that Joe - what's his name? Is the unlucky person who comes out; you follow him, you want to disarm him, you have no intention to kill him but you have to kill him in self-defence because he pulls a gun on you.

MR MHLONGO: Yes, we did not intend to kill him. But if it became necessary I wouldn't have hesitated; I would have killed. But on that day the object or the intention was only to disarm.

MR MALAN: I'm asking you simply - don't answer questions that we're not asking. I'm asking you simply: explain to me why did you not rather decide to kill policemen as an act of revenge? Why do you go out to disarm a policeman?

MR MHLONGO: Well, I was not the person who was taking decisions. My commander had decided on this and he gave out instructions. And...

MR MALAN: But you told us a moment ago that you discussed it amongst each other and decided to go out and disarm a policeman. Get hold of firearms.

MR MHLONGO: Yes.

MR MALAN: Now I can't understand this. Can you explain to me why, after having shared the bereave of the family, offered your condolences, for a policeman having killed their son you go to rob a policeman of his weapons. Why?

MR MHLONGO: I don't know what motivated the commander to plan as such. But... (intervention)

MR MALAN: No, please Mr Mhlongo, I'm not talking about -I'm talking about what you told us, that you discussed this amongst each other. And you decided - surely the final decision is the commander's, but you discussed it. That's what you told us. Or did you not discuss it?

MR MHLONGO: Well, I was there; I was part. But he was the one giving out instructions and there was no way I could defy the order. And I had to carry the order.

MR MALAN: Why didn't you suggest during the discussions, come on, let's just kill these policemen in any case; look what they're doing to our comrades?

MR MHLONGO: I don't know why. I don't know why it didn't occur to me to say that. But looking now in retrospect I think I should have done that.

MR MALAN: Now let me take you to pg. 140 of the record. We unfortunately don't have all the evidence, but in the summary - and this is line 10 - the Judge says that the fire-arm of this policeman was still found on the body of the deceased. In other words he never took out his gun. He never produced his fire-arm. You told us that he drew his gun and therefore you shot him.

MR MHLONGO: Yes, that is true; we did not take the fire-arm. What I said was that as he was drawing his gun, I did not wait for another second. I had to shoot right away. I did not even wait for him to totally and completely draw out the gun. I shot at him as he was in the act of drawing out, and prevented what could have happened afterwards. I killed him. And the other group by the way behind, were supposed to take away the fire-arm but they did not instead.

MR MALAN: Now coupled with this really is the question: you as a member of the SDU and your comrades in the SDU, you were active for quite some time in the community. Is that correct?

MR MHLONGO: Yes.

MR MALAN: You were known in the community because you were making house calls, visiting old people, soliciting transport. You were very well-known in the community.

MR MHLONGO: Yes.

MR MALAN: It was known that you were members of the SDU.

MR MHLONGO: At the time we were operating underground. In fact our operation was of a kind of ...(indistinct) and we were not known as such, for all the things we were doing were of a clandestine nature to the extent that the people who were aware about this, were few but people knew that, especially in the communities that we were up to defend them and protect them from all the things that were happening.

MR MALAN: Did they not know that you were members of the SDU? The community?

MR MHLONGO: You see, the SDU - for the formation of the SDU the whole community decided that we should have SDU formed. And the community knew that there are SDU's. And there are other things that I would do and not report back to the community. Avoiding to be arrested.

MR MALAN: No, but this is really the point. The community knew exactly who the members of the SDU was.

MR MHLONGO: Yes.

MR MALAN: So you were known by the community as the members of the SDU.

MR MHLONGO: Yes.

MR MALAN: Or basically the whole of the community. You were active. Probably doing patrols, visits, information, sharing information, soliciting support.

MR MHLONGO: Particularly in Zone 1, in my own location. Because we had in groups and units in different places.

MR MALAN: Where was the policeman killed?

MR MHLONGO: In Zone 6.

MR MALAN: The people there, did they not know you? In Zone 6. The community of Zone 6, were you known to them? Or some of them?

MR MHLONGO: As it has already transpired in the other evidence that has been read, that it was already dark. So that people who were there could have been the people who were there to get into transport, because we were right next to the terminal bus rank.

MR MALAN: You see, I can't understand that you run away from the community if you perform community services with the support of the community. Why did the others not disarm him; take his gun? Why did you flee? After all, this was a policeman.

MR MHLONGO: Even myself, I ask the same question. To date I still have that question.

MR MALAN: Why did you run away?

MR MHLONGO: I fled because there was one that moved away, and I did not know what he was up to. So I was running away from that one who moved away, the other police. Not necessarily running away from the community or from the public. When I saw him, he was armed and I did not know his plans thereafter and I was now running away from him, because I did not know what he was up to and capable of. Not necessarily that I was running away from the community.

MR MALAN: Just a last question. The people who were supposed to follow him from behind who did not take his gun, did they indeed follow him? Or did you not see them?

MR MHLONGO: Well, when I left them to go to the front, I don't know what happened. Maybe they ran after the one who moved away. But at the end the gun was not taken. So I don't know what became of them after.

MR MALAN: Is it not possible that they were not involved in that operation at all? If you... (intervention)

MR MHLONGO: They would not have betrayed us or - well, that could have been a betrayal of trust and defy the order. They would not have done that.

MR MALAN: All right, thank you. I have no further questions.

CHAIRPERSON: One last issue here. It was suggested to you that had this policeman not made a motion towards taking out his fire-arm, he would not have been shot.

MR MHLONGO: Because the other one moved away, I was convinced and knew that I'm shooting. So the fact that the other one moved away, I knew very well that I should shoot, even if he did not act.

CHAIRPERSON: Maybe you don't understand my question. Listen nicely. Had it not been for the fact that this policeman made a motion - or you thought he was going to draw his gun - you were not have shot him.

MR MHLONGO: Maybe it could have happened like that.

CHAIRPERSON: What do you mean maybe? Were you in any event going to shoot him?

MR MHLONGO: Well, because in such a situation you think on your feet and on your toes. You don't sit and plan. I could have done anything.

CHAIRPERSON: Right. If he had given you the gun, why would you have shot him?

MR MHLONGO: I don't even guarantee that reason for myself. But it's a known thing to me that I have this deep-rooted anger towards the police. Well, I don't think I could have killed him but I don't know really what could have happened.

CHAIRPERSON: Look here, don't come and talk nonsense to us. You just - the whole bits of evidence you told us, that the plan was not to kill him; you didn't mean to kill him.

MR MHLONGO: Yes.

CHAIRPERSON: Now I'm trying to confirm that. Now you're telling us you're not sure whether you would have killed him or not.

MR MHLONGO: As I say that the instructions had been given out and I would not have defied them. But according to me, that is me. But the instructions I had to adhere to and follow. So I did everything in line with the instructions.

CHAIRPERSON: So you would not have shot him, had he given you the gun. Do I understand that correct?

MR MHLONGO: No, I wouldn't have shot at him.

CHAIRPERSON: You only shot him because you thought he was going to draw his gun.

MR MHLONGO: Yes. And also the fact that the other one fled.

CHAIRPERSON: And you thought when he was going to draw his gun, he was going to shoot you.

MR MHLONGO: Yes.

CHAIRPERSON: So did you shoot him because you want to defend yourself? That was the suggestion from Mr Malan.

MR MHLONGO: Yes, I did that because I had instructed him to raise up his hands and it was all in defence.

CHAIRPERSON: I want to be absolutely fair to you. You shot him in self-defence then?

MR MHLONGO: Yes.

CHAIRPERSON: Yes, thank you. You're excused.

MR MALAN: Sorry Chair, if I may just again for the sake of clarity for this witness and to come to his assistance: my reading of his application is - you can tell me if I'm wrong. Mkhwanazi, you planned to go there. You stop, you get instructions to go in and see if he's there and report back. But you decide instead when you see him, to shoot him. You defy the instruction by killing him straight there on the spot.

MR MHLONGO: No, it is not so. The instruction had already been out that he will be killed.

MR MALAN: No, no, no. I'm not arguing whether he would have been killed or not killed. When you went in the instruction was to do a reconnaissance and report back. But instead, you killed him.

MR MHLONGO: Yes.

MR MALAN: The policeman, the instructions were to go out and disarm the policeman. Not to kill the policeman. I asked you very specific questions on that.

MR MHLONGO: Yes.

MR MALAN: You did not follow the instruction; you killed him. Whether because of the anger or whether in self-defence, it's - but you're not following the instructions.

MR MHLONGO: The mission did not go according to plan. If they had raised their hands we would not have killed. We would have just disarmed them.

MR MALAN: When the other policeman ran away, why did you not shoot at him when he moved away? Because you were right at them when pointing the gun. Why did you not shoot him?

MR MHLONGO: As I said that I did a crash course and I'm not well conversant in the use of firearms and - as I said I'm not well conversed into the use of firearms. I think I could have killed if I was able to, but I couldn't.

MR MALAN: Ja.

CHAIRPERSON: Yes, you're excused.

WITNESS EXCUSED

CHAIRPERSON: Because of the logistic issues we're going to break for lunch until one o'clock.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Mokhanda, have you got any more witnesses?

MR MOKHANDA: No Chairperson, ...(indistinct) at this stage.

CHAIRPERSON: Is that your case?

MR MOKHANDA: It is mine although I wanted to make a closing argument.

CHAIRPERSON: I will give you that opportunity, I'm just talk...

MR MOKHANDA: Yes.

CHAIRPERSON: Okay. Ms Mtanga, have you got any witnesses?

MS MTANGA: Yes Chairperson. I will be calling Philip Mkhwanazi, the brother of Assan Mkhwanazi murdered in the first incident.

CHAIRPERSON: Mr Mkhwanazi, what language would you prefer to use?

MR MKHWANAZI: Zulu.

SKOMBUZO PHILIP MKHWANAZI: (sworn states)

EXAMINATION BY MS MTANGA: Will you also place on record how are you related to the deceased Assan Mkhwanazi?

MR MKHWANAZI: My younger brother. He comes right after me.

MS MTANGA: Mr Mkhwanazi, you have heard the evidence of the applicant and he has testified that your brother was a criminal involved in raping students and looting shops and that he was a member of the Jack Rollers, a gangster group that was led by Jeffrey Brown. What is your response to that evidence?

MR MKHWANAZI: All what is mentioned does not exist.

MS MTANGA: Why do you say it does not exist? The applicant has testified that he grew up with your brother; he has known him since childhood and he knew for a fact that he was involved in criminal activities. Can you give more information about what your brother was doing?

MR MKHWANAZI: My brother used to work, and I'm so surprised about all the information he's furnished to this Commission.

MS MTANGA: Where was your brother working?

MR MKHWANAZI: He worked at Lone Hill Hardware.

MS MTANGA: You said he worked at Lone Hill. What was he doing at Lone Hill and in which year was he working at Lone Hill?

MR MKHWANAZI: He was a driver and I don't remember the year as to when he started to work there. I don't remember. But at the period of his death he was still working there.

MS MTANGA: The applicant has mentioned that your brother was friends with Jeff Brown of ...(indistinct) Eldorado Park. Do you know Jeff Brown who was the leader of the Jack Rollers gangsters?

MR MKHWANAZI: My brother never associated or been with Jeff Brown.

MS MTANGA: The applicant further mentioned Makeke who resided in Zone 5. Do you know this Makeke whom he says was also a friend of your brother's?

MR MKHWANAZI: He has never been associating with Makeke as well, my brother that is. He used to be an ordinary worker. As to the member of gangster; it's the first time I encountered this kind of information.

MS MTANGA: Mr Mkhwanazi, do you know Jeff Brown?

MR MKHWANAZI: I don't know about him, but I heard about him in Diepkloof that there is such a person.

MS MTANGA: And do you know Makeke?

MR MKHWANAZI: I heard about him as well. It's the same case as the previous name.

MS MTANGA: Do you know a person called DR of Zone 1?

MR MKHWANAZI: I don't know him.

CHAIRPERSON: Mr Mkhwanazi, is there a gang that operates in Diepkloof known as the Jack Roller gang?

MR MKHWANAZI: There were never SDU's in Diepkloof. It was a quiet place, Diepkloof that is.

CHAIRPERSON: I don't know what was interpreted to you. I asked you if you knew the Jack Roller gang.

MR MKHWANAZI: I heard about Jack Rollers. I heard that they were existing.

CHAIRPERSON: Are there gangsters in Diepkloof?

MR MKHWANAZI: (No audible answer)

CHAIRPERSON: I didn't hear.

INTERPRETER: I think we have a technical problem here. I can barely hear what the witness says.

MR MKHWANAZI: In Diepkloof there was never a gangster, especially in our area in Zone 5 there was never a gangster.

CHAIRPERSON: I'm talking about the whole of Diepkloof. Where does the Jack Roller gang concept come from then?

MR MKHWANAZI: I heard in Zone 1 about that, but in Zone 5 I don't recall any time when I heard about Jack Rollers.

MS MTANGA: Mr Mkhwanazi, do you know of the existence of SDU's in your zone, that is Zone 5 in Diepkloof?

MR MKHWANAZI: Please repeat your question?

MS MTANGA: My question is do you know of the existence of SDU's in 1991 in your zone, that is Zone 5 in Diepkloof?

MR MKHWANAZI: No, I don't know that.

MS MTANGA: You have heard the evidence of the applicant that he belonged to the SDU's. What do you say to that? He said he killed your brother because he was a member of the gangsters that was targeted by his unit as an SDU member. What do you say to that?

MR MKHWANAZI: I don't know anything about what he has said here.

MS MTANGA: Do you know the applicant?

MR MKHWANAZI: I don't know him either. It's my first time I see him. In fact I saw him at the Court of Law during the case of my brother.

MS MTANGA: Do you know anything about the applicant that you can tell this Committee?

MR MKHWANAZI: I knew that there were people that were disobedient in the community and harassing the people around.

MS MTANGA: When you say you knew that there were people, who are the other people that you are referring to?

MR MKHWANAZI: I refer to Velapi and Jomo, that he said something about and he has since died. They were very troublesome in Zone 1.

MS MTANGA: Did you know Velapi and Jomo?

MR MKHWANAZI: I heard about him. I didn't know him.

MS MTANGA: Can you for the benefit of the Committee describe what kind of person your brother was? Especially against the allegation that has been made by the applicant that he was a member of the Jack Rollers.

MR MKHWANAZI: Oh, my brother was a gentleman. That much I can say. He was a breadwinner at my house and he lived for his children and a fully-fledged family man. He was not troublesome; he was one of the law-abiding citizens.

MS MTANGA: Were you aware of all your brother's activities around Zone 5 or around the Diepkloof area?

MR MKHWANAZI: I knew him very well. We lived together. We would go to work together; I will go with him and spend week-ends with him. He was a very social person.

MS MTANGA: What kind of a - you said he was working at Lone Hill as a driver. Do you know how he was perceived at work by his colleagues?

MR MKHWANAZI: Upon his death they were very disappointed. They employed me in his place after his death. That's how disappointed they got after learning about his death.

MS MTANGA: Is there something special that you can tell this Committee about his relationship with his employers or his colleagues?

MR MKHWANAZI: They liked him very well, very much. And even now when I told them that I'm coming to the Truth Commission they felt they are with me in spirit and they will be very disappointed to learn about all the information that has been brought to the Commission by the applicant.

MS MTANGA: I have no further questions for the witness.

NO FURTHER QUESTIONS BY MS MTANGA

CROSS-EXAMINATION BY MR MOKHANDA: You said you used to associate with Jerry.

MR MKHWANAZI: He's my brother. I've always been in his company.

MR MOKHANDA: How close were you together?

MR MKHWANAZI: Very close.

MR MOKHANDA: But yet you cannot tell who his associates are when you were asked to name them.

MR MKHWANAZI: Please repeat your question Sir.

MR MOKHANDA: When you were asked as to who his associates were...

MS MTANGA: I object Chairperson. I didn't ask that question. I asked him if he knew the members of the Jack Rollers who were mentioned by the applicant.

MR MOKHANDA: I beg your pardon. In terms of his activities. You were asked of his activities, am I right? And you couldn't say what activities was he doing. As an ordinary person who you were close to and associated with.

MR MALAN: No, I think with all due respect he said that he was working; he said that they were very close together, that they spent week-ends together.

MR MOKHANDA: Yes. As someone who is very close I expect him to say I know he likes soccer, he used to play golf, his friends were 1, 2, 3, 4 and whatever. If he was as close as he is alleging to be.

MR MALAN: Well then I think in fairness ask him those questions if that's what you want to hear.

MR MOKHANDA: Thank you Sir. Looking at how close you were to your brother, what were his hobbies?

CHAIRPERSON: Mr Mokhanda, how relevant is the fact that he may be as close to his brother as any relative could get? How is that relevant to this matter?

MR MOKHANDA: It's because I'm moving from the point of view that though you may live with someone under the same roof and even sleep in the same bed you may not know things he's doing outside the area where you live with him.

CHAIRPERSON: Well, I think let's get to that point then, instead of asking all questions that belong on Supersport M-Net.

MR MOKHANDA: Thank you Chairperson. I apologise if I'm a big vague. Back to your association with Jerry. You said you were very close to him. In brief if you could tell us what his likes were outside his area, outside home; who he associated with.

MR MKHWANAZI: He had many friends, Baba. He will go to the stadiums to watch soccer and go back home. He had his girlfriend.

MR MOKHANDA: Of the friends you mentioned only one, but you said there were many. Is it the only one known to you? Baba, is it the only friend known to you?

MR MKHWANAZI: He had many friends. I will not be in a position to name them one by one, all of them.

CHAIRPERSON: Let me put it this way to you, to save time. You say you didn't know the members of the gang, this Jack Roller gang. You heard of Mr Brown and you heard of a person called Makeke.

MR MKHWANAZI: Yes.

CHAIRPERSON: Are you able to say that any of the deceased's friends were not members of that Jack Roller gang?

MR MKHWANAZI: Please repeat the last part of your question?

CHAIRPERSON: Are you able to say to us that the friends of your brother's were not members of the Jack Roller gang?

MR MKHWANAZI: Yes, I'm able to say that.

CHAIRPERSON: Why?

MR MKHWANAZI: The one person I mentioned his name is a teacher, for instance.

CHAIRPERSON: And? Maybe a teacher by day and maybe something else by night. That's the point I have to make.

MR MKHWANAZI: I don't think he will do such a thing. Because I don't even remember him mentioning such things or such a gang.

CHAIRPERSON: Well, his friends; do you know of any of his friends who used to wear a fire-arm, or use a fire-arm?

MR MKHWANAZI: No, I don't know.

CHAIRPERSON: Have you ever seen any of his friends brandishing a fire-arm, or possess one?

MR MKHWANAZI: Not one.

CHAIRPERSON: Or knives?

MR MKHWANAZI: Not one.

CHAIRPERSON: Any weapons?

MR MKHWANAZI: No, I have never seen that.

CHAIRPERSON: Carry on.

MR MOKHANDA: Thank you Chairperson. You said you heard of Jomo and Velapi. Am I correct?

MR MKHWANAZI: Yes, I heard about them, that they were Jack Rollers there in Zone 1. I had no interest in them, because I knew very well that I'm not at all party to them or I had no interest in them.

MR MOKHANDA: So basically you are saying you don't personally know them, like you can point them out.

MR MKHWANAZI: Yes. Yes, I am not in a position to point at them. In person I did not know them.

MR MOKHANDA: And you said the applicant was in their company. Am I correct?

MR MKHWANAZI: Yes, they were one group.

MR MOKHANDA: How do you marry these two? Not knowing other people but knowing he was keeping their company?

MR MKHWANAZI: They were talking about them in Diepkloof, that Peace, Jomo and the other one, Velapi.

MR MOKHANDA: My question is how do you come forth here under oath to say the applicant, the person in front here, used to keep the company of people you had never met ...(indistinct).

CHAIRPERSON: He just said he heard it.

MR MOKHANDA: No further questions.

NO FURTHER QUESTIONS BY MR MOKHANDA

MR MALAN: I have just one question for you Mr Mkhwanazi. Michael Selawi, do you know the name?

MR MKHWANAZI: Michael Selawi? Yes. You see, where my brother was shot, he's the one who got in and informed that there will be a fight.

MR MALAN: Did he say who could be causing the fight?

MR MKHWANAZI: He just said, just now there will be a fight. Just abrupt. Even before we were done, the gunshots were heard.

MR MALAN: Now was Selawi a friend of yours, or your brother's?

MR MKHWANAZI: Selawi was not my friend.

MR MALAN: Do you know if he was a friend of the applicant?

MR MKHWANAZI: I don't know.

MR MALAN: No-one asked him why that fight would be happening?

MR MKHWANAZI: No-one asked him. You see, we were in a relaxed mood and the atmosphere was jubilant. And suddenly he emerged with that kind of information.

MR MALAN: When you all had sobered up, didn't you ask him now how did you know that this fight is going to occur?

MR MKHWANAZI: No, because my brother had already been shot, and I was trying to enlist help to my brother; taking him to the hospital. I've never seen him thereafter.

MR MALAN: Oh. Didn't you go make an effort to find him?

MR MKHWANAZI: You see, the last time I saw him was on that day of this incident.

ADV SIGODI: You mentioned that your brother, the deceased, had children. How many children did he have?

MR MKHWANAZI: He has two children. Both girls.

ADV SIGODI: What are their names?

MR MKHWANAZI: Tuliseli Mkhwanazi as well as Vusesiwe Mkhwanazi.

ADV SIGODI: How old are they?

MR MKHWANAZI: Tuliseli is 14 years; Vusesiwe is 11 years.

ADV SIGODI: Was he married at the time?

MR MKHWANAZI: No, he was not married at the time.

CHAIRPERSON: And his mother? Is she alone?

MR MKHWANAZI: The kids are at home and the mother subsequently got married.

ADV SIGODI: And at the time of your brother's death was he staying at your home or did he have his own place?

MR MKHWANAZI: You mean the mother?

ADV SIGODI: Your brother. Was he staying with...?

MR MKHWANAZI: Yes, he was staying at home.

CHAIRPERSON: Who would be the guardian of these children now?

MR MKHWANAZI: My mother is and my sister.

CHAIRPERSON: No, I'm only looking who is the main guardian? Who is in charge of them? Who will make decisions about them?

MR MKHWANAZI: My mother is. Jabile Rose Mkhwanazi.

CHAIRPERSON: Have you got an address that we could contact her?

MR MKHWANAZI: Who?

CHAIRPERSON: Your mother.

MR MKHWANAZI: Yes, she's here.

CHAIRPERSON: The children's grandmother.

MR MKHWANAZI: 6042 Zone 5, Diepkloof.

CHAIRPERSON: 6042, Zone 5, Diepkloof. Johannesburg. Ja. Any more questions?

ADV SIGODI: At the time of your brother's death, where were you staying?

MR MKHWANAZI: I had rented a garage in Zone 2, in a certain house.

CHAIRPERSON: Ms Mtanga, have you got any questions?

MS MTANGA: No Chairperson.

NO FURTHER QUESTIONS BY MS MTANGA

CHAIRPERSON: Mr Mkhwanazi, you inadvertently answered a question I put to you just now incorrectly. But nonetheless the answer you gave is pertinent. Did I hear you correctly? You say there were no SDU's in Diepkloof at that time when your brother was shot?

MR MKHWANAZI: The area where I resided in, I've never heard about SDU's, that they were existing in Zone 5.

CHAIRPERSON: No, I'm talking about generally in Diepkloof.

MR MKHWANAZI: I never even for once heard about the existence of SDU's in Diepkloof at large.

CHAIRPERSON: Do you know the concept of Street Committee?

MR MKHWANAZI: I know the one that was in my street where I resided. You see, the one that belonged to my home in Diepkloof. In the area where I stayed.

CHAIRPERSON: You see, why I ask about it is because the applicant has testified that he was a member of the SDU's in Diepkloof. Can you comment about it?

MR MKHWANAZI: Well, I don't know any SDU's in Diepkloof.

CHAIRPERSON: Did you know the applicant?

MR MKHWANAZI: I saw him at the High Court.

CHAIRPERSON: Is that the first time you saw him?

MR MKHWANAZI: Yes, that was my first time I saw him.

CHAIRPERSON: You never knew him before?

MR MKHWANAZI: Not at all.

CHAIRPERSON: He stays in Zone 1. Stayed in Zone 1.

MR MKHWANAZI: No, I did not stay in Zone 1. I had been renting a room in Zone 2, but my home was in Zone 5.

CHAIRPERSON: You see, I find it not strange; I find a difficulty with it is that you never heard or never saw gangsters. Neither did you see the SDU's. Both groups of people seem to be playing a very prominent role in this application. The differences are so stark, it gives rise to difficulty.

MR MKHWANAZI: Well, those are things I did not take note of, or notice of because I was working. I had no time for such things around.

CHAIRPERSON: And even a month after your brother died or even after the funeral - it's been a number of years since -have you not made enquiries as to why your brother was killed? Because it seems that it was totally unexpected; it didn't make sense to you. Did you or any of your family members make any enquiries in the vicinity where you stayed as to why your brother was killed?

MR MKHWANAZI: We had hoped that the law would take its course and investigate further into this matter and inform us. And we hoped that such information we will be able to gather at the Court during the trial.

CHAIRPERSON: And even after the trial - did you attend the trial?

MR MKHWANAZI: I went there once.

CHAIRPERSON: And even after the trial, did you find out then why your brother was killed?

MR MKHWANAZI: No.

CHAIRPERSON: Then why didn't you after the trial - you're in no better position - why didn't you then ask around; people in the Diepkloof area? Does anybody know why my brother was killed?

MR MKHWANAZI: No, I did not do that. And because now he was in prison I believed in the power of the law, that they would deal with him accordingly.

CHAIRPERSON: Yes thank you, you're excused.

WITNESS EXCUSED

CHAIRPERSON: Any more...

MS MTANGA: No Chairperson, I won't be calling any further witnesses, thank you.

CHAIRPERSON: That seems to be the end of the evidence.

MS MTANGA: Yes.

CHAIRPERSON: Yes Mr Mokhanda, have you got any submissions?

MR MOKHANDA IN ARGUMENT: Yes Chairperson, I have submissions and I'll try to be brief.

My first submission relates to the circumstances of the townships, particularly Diepkloof, at the time when these occurrences happened.

CHAIRPERSON: I think we accept that there were disputes and unrest and third forces and whatever. We've had enough of that. Continue.

MR MOKHANDA: Thank you Chair. That being the case, then I will concentrate on the applicant as an individual within that circumstances as it stands and believed to be understood by the Commission.

In terms of his age, Chairperson at that time we are talking about a group of youngsters in that volatile situation. The applicant is only 18, in Std. 9, totally disturbed by the circumstances as they stood, that is well-known.

This can be seen by the answers that were elicited when he was asked about the ...(indistinct). A lot of naiveté is clearly seen. These youngsters - all of them very young; little insight, little knowledge, with a clear political motif and objective - they are being used by people who at least are not even known to them, but they know the objective is to get these people to either destabilise in terms of the struggle or to come and get their community in a particular direction.

Therefore I will ask the Committee to look at the applicant as an individual who had good motives; who had truly believed of what he was doing, that is to the benefit of the community where he was a member.

Also the situation is that most members of the SDU's as it has been seen, were recruited from a group of people, Cosas, who were quite eruptive. Therefore there were these people who were able to pick up individuals within the Cosas group and recruit them into this ...(indistinct) SDU. Known to many people who are activists, and maybe are known to some as it was said by the witness.

It is therefore very crucial that the Commission should try and understand, or at least put itself in the position of the applicant at that time. It was clear that though there were commanders, the planning was never thoroughly done. Basically the unit as it is said in the affidavit, their tasks were to get firearms, get transportation, and fund-raise.

It is clear that whenever an activity was planned, or when it happened it was not spontaneous. People had to be given orders. It was more orders, very little discussion; we're going forth, we're going to do this and that and whenever we get there, you do this and this and that. However the motive of the group, the objective is clear. There were directions given to these people; all of them very young. There was no-one who at least had it in their minds to ask of the whys and the why nots. They were never questioning the directives. Once you questioned the directives, you were seen as a traitor.

Therefore, when you find yourself as a member, you were stuck with the situation that if directives come from ...(indistinct) you just have to execute them.

The issue of age also comes when it is seen that in both occurrences a straight-thinking person could perhaps have thought otherwise. However, because of this young person who obviously has very little knowledge of how to use a gun. They have been given a crash course; you bridge it, you switch on the safety pin, you release the safety pin. That's all they were taught.

In the actions at the time this person does exactly just that. They were directed and there was this training so within that moment, at the spate of a moment you have to react. It is human what is at the subconscious. You will automatically react as you have been programmed.

And obviously all members of this clandestine small unit were indoctrinated. It is clear as we have seen what the applicant said when he was asked about the trial that after having been arrested this young person who is obviously very scared, who has to react, not even think; has to formulate a story to protect the unit and there and then basically the person has to sit in a trial hoping and praying that he doesn't get a death sentence. Nothing else. It is not surprising that the applicant can hardly remember who the witness was. It is not surprising that the applicant cannot remember if such an issue was raised in the trial or not. There he was, this young person, scared for his life; told that if you can expose this clandestine unit you must know you are gone. And the situation expands, it is true. Death sentence was there.

CHAIRPERSON: What political objective was achieved? What political objective was achieved or intended to be achieved by killing Mr Mkhwanazi? Assuming that he was a gangster?

MR MOKHANDA: Chairperson, that leads me to the next issue that I want to address. The SDU as a unit or as an institution formed within the community. Its task was to protect the community. As the applicant has said, once a target was primarily identified as attacking the community per se it was the task of the SDU to act on that target.

CHAIRPERSON: I don't think he got it right. Wasn't it within a political context?

MR MOKHANDA: Chair, the community...

CHAIRPERSON: SDU system was established according to Ronnie Kasrils in another matter, to protect the community against political attack.

MR MOKHANDA: Thank you. If I could be given a chance, I'm coming to that now.

The community was protected, the basis was political. Members of the SDU who obviously had no link with the leadership who had insight; their tasks they were told to protect the community. Therefore any primary group that can be seen as perpetrating violence against the community, the SDU took it upon itself to act on that as a target.

The actions, the public presentations of the acts of the Jack Rollers were viewed by the SDU at Diepkloof as part of the group which was perpetrating violence against the community within them locally. It was this place, there was this publicity, there was this clear display according to what has been said in the affidavit of their acts. Therefore there was a clear enemy who was violently attacking the community and doing it so publicly and openly.

Therefore the task of SDU on the face of it was to protect the community. And these young members, these people with very little insight, with clear political objectives, with a clear motive saw it necessary - they viewed anyone else who was reacting, who was acting in that way, as attacking the community; they took it as their task to act on that.

ADV SIGODI: I'm sorry, but can you really see that type of attack is covered by the Act?

MR MOKHANDA: The grey line between an institution or a group that was clearly political and the one that was not clearly political given the circumstances to these young persons, it was very grey. They couldn't differentiate between the two.

CHAIRPERSON: That may be subjective objective. The question is, does that aspect fall within the ambit of the Act?

MR MOKHANDA: Chair, the Act looks at the motive and the bona fide belief of acting within the scope of the institution that the member belongs to. And it's from that angle that I'm addressing you. That the objective of the SDU, their motive was to protect the community. Hence I'm coming from that angle.

CHAIRPERSON: You seem to forget. The issue here is that the SDU was established for the purpose of protecting the community in any political act, psychical or physical. Assuming at best for the applicant that the deceased was a gangster operating within the gangster group and committing the most horrendous crimes, not political; hence the question by my colleague. Is what you're saying something that is catered for by the Act?

MR MOKHANDA: Chair, as I said the basics of their action is covered by the Act.

CHAIRPERSON: ...(indistinct)

MR MOKHANDA: I didn't hear the question, sorry. I didn't hear the question.

CHAIRPERSON: Can you refer us to a section or how you say that it's covered by the Act?

MR MOKHANDA: May I refer you to Section 20 of the Act, subsection 3? Where it states that

"Whether a particular act, omission or offence contemplated in subsection 2 is an act associated with political objectives, shall be decided with reference to the following criteria

a) the motive of the person who committed the act, the omission or the offence;

b) the context in which the act, omission or offence took place. In particular whether the act, omission or offence was committed in the course or as part of the political uprising, disturbance or event or a reaction thereof."

MR MALAN: Don't read all of it. Just tell us where does it fit. Because certainly these that you've quoted, isn't relevant.

MR MOKHANDA: As I said, the action of the applicant must be viewed - I submit that it be viewed from the totality of the SDU as a unit, as an institution that was established with its objectives that have been stated. Working from that angle then it will be seen that the applicant was merely an instrument of the SDU executing its tasks, as it was put to them.

MR MALAN: And if the SDU was wrong in assuming killing a gangster was a political act, where does that put the applicant?

MR MOKHANDA: If the SDU was wrong and the applicant was acting according to their instructions with this motive as stated by the Act, the applicant therefore cannot take blame for the wrongful decision or the wrong identifying of the target by the whole unit. He was just an instrument within that context. Therefore he cannot take - he is not supposed to take the blame as an individual for the wrong of the whole unit as it stood at the time.

CHAIRPERSON: But you see Mr Mokhanda, the interest of the applicant is not the only set of interests that we've got to consider. This Act is victim based; is victim driven. So their rights, the victims' rights is just as important as the applicant's. It's not like a criminal matter. Do you follow what I'm saying? And therefore the question: to what extent does the activities of the applicant and his intentions fall within the ambit of the Act. You've quoted us Section 20, subsection 3. I still have difficulty picturing what he did for whatever reason, that that falls within the ambit of Section 20. I can't see it. And I'm open to persuasion, and I'm going to ask you to deal with that.

MR MOKHANDA: Chairperson, perhaps that's where I should start.

MR MALAN: Just before you start there - because you've made the argument that if the SDU took the decision, even if it was wrong, the applicant was obliged to follow and it cannot harm him in his application. Now let's assume for the moment that we accept the existence of the SDU; indeed that there were such instructions as the applicant gave evidence of. Is the applicant not saddled with the problem that he did not execute the instructions, but in both instances he carried out executions other than instructed? In the Mkhwanazi case the instructions were - according to the applicant - to investigate and report back about the presence. And the second instance to disarm a policeman. Not to kill a policeman. Can you really bank on that argument?

MR MOKHANDA: Correctly so, I can. As I said the SDU as a unit took these decisions and the members, the applicant... (intervention)

MR MALAN: But Mr Mokhanda, the decision they took was not what the applicant implemented. They took a different decision on his evidence.

CHAIRPERSON: What was the instruction in the case of Mr Mkhwanazi, the deceased?

MR MOKHANDA: Chairperson, may I answer that in broader form? When people lead... (intervention)

CHAIRPERSON: Please, please, don't answer in broader form. Answer it directly.

MR MOKHANDA: The instructions when he left them outside, when he went into the house was to go and locate him.

CHAIRPERSON: And?

MR MOKHANDA: And when he came face to face... (intervention)

CHAIRPERSON: No, I'm talking about instructions. Go locate him and...?

MR MOKHANDA: And come and report back. But what I'm saying Chair is that these people when - after getting the information, when they left from where they were, they armed themselves. The implied intention is clearly to go and fight this person who they know... (intervention)

MR MALAN: Mr Mokhanda, really for my sake you don't have to pursue that argument. You made an argument that he was a foot soldier under orders and he had to carry out orders. But you've conceded now he did not carry out orders; he applied his own discretion on this instance. Did he not do the same as far as the policeman is concerned?

MR MOKHANDA: I... (intervention)

MR MALAN: You may have a second argument about the implied, but that would go against your first argument of standing under the direct orders of the SDU, to perform a very specific task which it couldn't challenge and had to execute. This was what you told us. Even if the SDU was wrong, to quote you. But it turns out that that's not relevant; that's not applicable to the facts before us.

MR MOKHANDA: Chair, the Commission looks at the whole event as it is - there is a chain of events. The whole... (intervention)

MR MALAN: No, please Mr Mokhanda. I simply asked you on your argument - if you want to continue with your argument, do so. But your argument - I'm putting it to you that your argument that he was a foot soldier that had to carry out very specific instructions that he had to comply with in specifics, is not a valid argument. Or is it?

MR MOKHANDA: It is.

MR MALAN: Then leave it there; it's your view but I apply the facts as put before us by the applicant really very differently. But I leave it there. You can continue with your argument.

MR MOKHANDA: Thank you Sir. I'm saying the chain of events need not be seen as one event after the other, not linked. These people left, after getting the information in terms of Mr Mkhwanazi particularly... (intervention)

CHAIRPERSON: Why did he shoot Mr Mkhwanazi when he got clear instructions: go locate him and come and report back?

MR MOKHANDA: Chair I'm saying, these people when they left arming themselves, they were not going to negotiate with Mr Mkhwanazi. They were going to eliminate him as a target.

CHAIRPERSON: Against an instruction? When they left?

MR MOKHANDA: When they left they armed themselves to go in. It's in the affidavit.

CHAIRPERSON: Well, that's not what he said. He said - this is what he said as I understood him. They got the instructions to survey this gentleman and to come report back. That's what he intended to do. But while he was there, he just thought well, the whole plan is to kill him; I might as well kill him now. And as a foot soldier, that flies in the face of discipline. It was not the wish of the SDU at that time that Mr Mkhwanazi should be killed. As far as the foot soldier is concerned. Do you follow what I'm saying?

MR MOKHANDA: I follow Chair, I just don't agree with that.

Chairperson, as I said the chain of events; you cannot cut one from the other as if this one happened today, the other one happened tomorrow. When they took a decision, when they left from where they were after getting the information, instantly they were issued a gun to go and get this target who they're after; who they know if he sees them first, he'll shoot them.

CHAIRPERSON: But isn't that the reason that they were armed? That if we encounter any resistance or we're shot at; we're going to defend ourselves. But not for the purposes of going there and killing Mr Mkhwanazi?

MR MOKHANDA: Chair, from what the applicant said I got the impression that that was the idea. To go there and kill him.

CHAIRPERSON: That was undoubtedly a decision made by the applicant himself when he found Mr Mkhwanazi. He said so himself.

MR MOKHANDA: What he said Chair is when he was sent in to check him, he came face to face with him. However, I find it difficult that if the commander issued them with guns, when they are going after Mr Mkhwanazi, who is known of his hideous crimes, that they would go there to do anything else either than to kill him.

CHAIRPERSON: Mr Mokhanda, I don't think either of us are here to guess what was intended. The applicant has given us his evidence. Both of us are stick with it, isn't it? We can try as much as we want to interpret what he said; the fact of the matter is he said that he decided when he found Mr Mkhwanazi that in any event we're going to kill him. I might as well do the job now.

MR MALAN: And I hated him so much.

CHAIRPERSON: And I hate him, or whatever. Isn't it? That's what he said. Unfortunately both of us are stuck with that. We've got to decide and argue the matter on that basis.

MR MOKHANDA: I agree Chair. The only point that I wish to drive home from maybe my unfounded fear, is that the Commission singles out the applicant as if he was reacting on his own, disregarding the circumstances which he was surrounded with at that time. If I'm wrong I apologise and I...

MR MALAN: No, we accept the circumstances. For the sake of this argument we accept on face value what he gave us. But the applicant tells us that he had a very specific instruction. In fact the person who put out the order was part of the party in the car with him. Slovo was there. And he told us he had to follow Slovo's decision to the tee. He couldn't question it. He must do what Slovo tells him. Now they stop outside. He is instructed by Slovo to go in and survey and report back. On his evidence he must follow that down to the last tee; he may not disobey, he may not disregard. It's very specific. He goes in; sees the man, he hates him so much, he shoots him. That does not tally with the discipline and his responsibility to follow orders and his fear of not following orders because would be called a traitor. He was simply undisciplined if we have to accept his own version. Isn't that so? And this is the only question. We're not saying that it had no link in terms of a history. Of course it had some history.

MR MOKHANDA: Chair, I would like to leave this issue on that level, and agree that even the circumstances surrounding it goes up to that thing.

Then I advance my other point of argument. Thank you. I'd like to bring this as a final point to the Commission that under ordinary circumstances it is expected that a person has to react, or naturally you react to something when it happens.

Therefore I submit that the Committee should try and understand the situation at which the applicant was both at the times when he executed these actions. If someone goes for their gun, you don't think that they will do anything else either than to shoot you. If you meet someone whom you strongly believe is heavily armed; who you believe the fact that you knew that if he can react first, it's your life that is at stake. No-one has to be a hero with your life.

The applicant was stuck where he was a member of a well-known SDU, though it was clandestine ...(indistinct) some people who at any time...

CHAIRPERSON: That's a contradiction in terms.

MR MALAN: Ja.

CHAIRPERSON: Clandestine, well-known.

MR MOKHANDA: I correct myself. The existence of the group, the unity I want to say. My wording might be wrong.

MR MALAN: You've used this word clandestine now on several occasions. There was no evidence that the SDU was a clandestine SDU.

MR MOKHANDA: Correct. The unit, the existence of the unit is what I wanted to say.

CHAIRPERSON: But that must have been the identity of the unit.

MR MOKHANDA: Of the - correct.

CHAIRPERSON: Of the members.

MR MOKHANDA: Of ...(indistinct) their members.

CHAIRPERSON: But....

MR MOKHANDA: ...(indistinct)

MR MALAN: Sorry, did I not put it to the applicant that as a member of the SDU he was known by the community? And he conceded that, that he agreed. So on the basis of the evidence of the applicant this was a normal SDU, set up by the community and the members of the SDU were known. Because the community gave the instruction for the establishment of that SDU. So why do you use this concept, clandestine every time?

MR MOKHANDA: As I said clandestine, I referred to the particular unit. The SDU were known as a group, but the unit... (intervention)

MR MALAN: No, no, no, no. No. I'm talking about this specific SDU. It was put that the SDU of which he was a member was established at the instance of the community. Or is that denied? Did I understand him incorrectly?

MR MOKHANDA: Correctly. But within the SDU there were units. But the units were not make public, that's why I used the word clandestine and as I said clandestine, it's with reference to the units per se, within the SDU. As ...(indistinct) there were three units.

MR MALAN: There were three different SDU's as I understood.

MR MOKHANDA: No, there were one SDU with units within.

MR MALAN: Well, there was one SDU to which he belonged which had three tasks of transport, of fund-raising and of general getting of firearms. And he said he was not involved in fund-raising. But it was one SDU.

MR MOKHANDA: The SDU was one as a general body. But within there were units who had different tasks to do. In their units they had those three things to do.

MR MALAN: Yes. But is the argument now that the clandestine that you are arguing, that it wasn't known that he was a member of that SDU?

MR MOKHANDA: SDU yes. But the unit within the SDU, they were not made public. It was not stated that as 10 members of the SDU, one is involved in doing this; one is that and that. That was clandestine. That was within as is stated here.

CHAIRPERSON: What was not clandestine?

MR MOKHANDA: The existence of the SDU as a general institution.

CHAIRPERSON: And the identity of their membership in general?

MR MOKHANDA: In general yes, it was known.

CHAIRPERSON: It was not?

MR MOKHANDA: It was known.

MR MALAN: It was known.

CHAIRPERSON: It had to be known, hey?

MR MOKHANDA: It had to known.

CHAIRPERSON: ...(indistinct)

MR MOKHANDA: I didn't hear that Chair.

CHAIRPERSON: I say there's something else that worries me. The Act says 20 subsection 2. Well, let me deal with Section 20, subsection 1(b).

"That amnesty shall be granted if the Committee is satisfied that the Act, omission or offence to which the application relates is an act associated with a political objective, committed in the course of the conflicts of the past in accordance with the provisions of subsections 2 and 3."

Now can you refer us to a section in this Act which covers an act performed in self-defence?

MR MOKHANDA: ...(indistinct).

CHAIRPERSON: How does self-defence advance a political position?

MR MOKHANDA: Chair, I have a problem with the approach of failing - maybe it's personal, maybe I need clarity - of looking at the acts of the applicant as if he's singled out as acting alone with his own ideas, own motives, own objectives. If that's not the case... (intervention)

CHAIRPERSON: I don't know why you continually get that impression ...

...(end of tape)

CHAIRPERSON: ...in other words he shot the policeman in self-defence. Or so we though. That act of shooting, of killing the policeman in self-defence, I'm asking you to point out a section in this Act which allows for us to bring that act of self-defence within the political ambit which is considered in this Act. In other words, in order to gain amnesty he must have performed an act which is at least intended for political advancement. How does self-defence do that?

MR MOKHANDA: In the context of the circumstances of the applicant. When anyone who is applying so. When one acts, and you find that at that moment, that person who's acting at that moment realises that his life is in danger, though in executing the duties that one is charged with, when one reacts, he was reacting in the scope of his duties. He was carrying out a cause.

The self-defence element will only come particularly to that person, but the person was carrying the duties of the SDU or the institution which he belonged to.

ADV SIGODI: Sorry. But then shouldn't the applicant be applying for amnesty in respect of the robbery? Attempted robbery of the fire-arm instead of replying for amnesty in respect of the murder? Seeing that the murder occurred as a result of self-defence. Shouldn't he just apply for what he himself wanted to do to the policeman; that is to disarm him and get his fire-arm?

MR MOKHANDA: In retrospect I can say that's what it should be. But when he made an application, he was making an application for the conviction.

CHAIRPERSON: But that doesn't help the Commission. If I may just inform you of something. There's a former policeman who applied for the amnesty in respect of the death of Mr Bantu Biko. That application was refused, because the policeman said he died as a result of an accident in the course of defending the policeman's body. The act of killing Mr Biko was too remote to fall within the ambit of political advancement. That's what was held in that application. Is there any difference here in respect of shooting that policeman?

MR MOKHANDA: I don't know the context from which the applicant was saying; I don't know the facts thereof.

CHAIRPERSON: I just gave you the relevant facts.

MR MOKHANDA: Also what my response would be that the action of the applicant, is closely linked in terms of the robbery of the fire-arm. His pulling of the gun was to stop this person. And the events, the circumstances pushed him into doing what was done.

However, it's not like he pulled a gun, he took the fire-arm and later he shot the policeman. It's not like after they have achieved their main aim of getting there, that he acted furthermore. That was what ...(indistinct) is for.

So it happened instantly, it linked itself - it's sort of more of a reaction, an automatic reaction to what he was doing. So the linking is not close that I would submit that strongly that it should be viewed from that level.

MR MALAN: May I just...

CHAIRPERSON: If he told us - if he told us that he shot this policeman to facilitate a robbery - another matter. If he told us that he shot the policeman in order to facilitate or in order to succeed in the robbery or the taking of the fire-arm, I would have no problem with that. He himself told us that he was busy robbing, did not intend to shoot or kill the police. He discharged the fire-arm as a result of thinking that he was going to be shot at. And acted in self-defence. It is quite different.

Now your argument that there is such a close link between the shooting of the policeman and the attempted robbery, would be quite correct if his version was that in order to facilitate the robbery I shot him.

That's not his evidence. Do you follow what I'm saying?

MR MOKHANDA: I do Chairperson, though I have a bit of a problem with the cutting of the events. I'm not sure why should the chain reaction not taken in its totality to the end.

CHAIRPERSON: We're talking about his mental status at the time; why he killed the policeman. That's the issue. Not how. Why. His own reason.

MR MOKHANDA: Perhaps Chairperson I fail to understand that, because I am under the impression that as I said his reaction, looking at the chain of events, it's a reaction. It's not like one has enough time to stop and think. It's more of a natural, human action. Someone just runs away; this one goes for the gun and then bang, it pulls off. It's a quick reaction in split of second.

CHAIRPERSON: Can I ask you something then? Maybe it will help you. You answer it. Was the policeman shot by the applicant to facilitate the robbery of the fire-arm? Or was he shot in order to protect the applicant's life?

MR MOKHANDA: Chairperson, I find it very difficult to answer that question, given that there are two incidents something. To me they are saying a chain of events which happened so quick...

CHAIRPERSON: Mr Mokhanda, maybe you misunderstand. I'm not talking about the chain of events. I'm not talking about what occurred there. I'm talking about the mental state of the applicant at that time. Why he did what he did. There seems to be two contentions here; yours and the applicant's.

The applicant says I did it to save my own life. I acted in self-defence. You have difficulty with that. You seem to think that it was done as part of the ...(indistinct)ation of the robbery.

A few moments ago I said well, as noble as you may want to be as a legal representative, both of us are stuck with what the applicant has said. And he has said that he shot in order to protect himself. I just conceded to you I would have had no quarrel if he had said I shot him to facilitate the robbery; I expected resistance.

But that wasn't his mental state when he did discharge the fire-arm. Is that not so?

MR MOKHANDA: Partly it is so.

CHAIRPERSON: ...(indistinct)

MR MOKHANDA: Perhaps Chairperson my view of everything else is as I said before, that I look at the whole event from where it started. I mean if the idea was to go and rob firearms, then why did they arm themselves? Why did the commander give them guns? Why did they arm themselves? It's so implied in their actions, both actions, that once they have a fire-arm they know the target; they know their target is likely to react therefore carry firearms automatically that it may be used.

Therefore if it is used as it was found in one judgment that the dolus eventualis thereof cannot be erased from the whole situation. That's where I'm moving from.

CHAIRPERSON: Mr Mokhanda, which version would you want us to accept? Your version or the applicant's version?

MR MOKHANDA: Chairperson, the applicant's version should be saying. I'm just saying... (intervention)

CHAIRPERSON: But that's why I'm asking the question. Which version must we accept? Yours or your client's?

MR MOKHANDA: The client's version should be taken. It's just that I'm saying all this because I think the Commission has restrictively looked and listened to what he has said. I think they narrowed it to events at that time when it happened. That's why I'm saying this. I'm not trying to come with a different version, and I apologise for that.

CHAIRPERSON: Is there anything else you want to submit?

MR MOKHANDA: Finally Chair yes, I'd like to talk about - submit that the applicant generally is an individual who, as it is seen from his background, caught in a Catch 22 of the situations and circumstances.

He himself is a victim and he's a person who's got the potential who can wrong his rights in ways that are possible, like as it stands now; though he was disturbed in terms of his schooling, since he has been in custody he has furthered his studies.

Presently he has three diplomas, one in Life Skills, the other in Small Business Development and he is presently doing a Diploma in Public Relations, Sales and Management. Therefore he demonstrates that he is a kind of a person who will be useful to the community.

CHAIRPERSON: Mr Mokhanda, however useful he may be, we're restricted to the terms of the Act; whether he qualifies for amnesty or not. Those could be put before a Judge of Law or magistrate. Maybe that would help him.

The fact of the matter is that we've got to decide as a matter of course as to whether he must be granted amnesty or not. Our considerations doesn't concern the issue of whether he's improved his position or whether he's a good member of society or not.

I daresay probably we've allowed scoundrels out because they complied with the Act. It's got nothing to do with their place in society.

I'll be very happy if all the people are allowed out of jail and take their rightful place in society and behave in the society like all people should. But that's not the consideration that we have to take into account.

MR MOKHANDA: Thank you Chair. That being the case I'll submit that given all the circumstances that were given forth, then the Commission should look at the application of the applicant with - I run out of the exact way to look, but...

CHAIRPERSON: We should look ...(indistinct) broader look.

MR MOKHANDA: I didn't hear that Chair.

CHAIRPERSON: We must look at it in its broad sense and very favourably.

MR MOKHANDA: That's my submission.

CHAIRPERSON: Are there any other submissions?

MR MOKHANDA: No Chair.

CHAIRPERSON: Thank you. We are not going to be in a position to give a decision now. We will have to make a written decision and submit it to the President's office, President of the country who will make the final decision. That will take a bit of time as you can well understand. You're excused.

MR MOKHANDA: Thank you.