Amnesty Hearings

ON RESUMPTION

JOSEPH MAPALILE MAKHANYE: (sworn states)

CHAIRPERSON: You may be seated. Mr Motloung.

MR MOTLOUNG: Thank you, Mr Chairman. Mr Chairman, once more I wish to refer to, is it Exhibit B?

CHAIRPERSON: Exhibit B, yes.

MR MOTLOUNG: The statement by Mr Makhanye, Joseph Makhanye, and I wish to read it into the record, then he can confirm.

CHAIRPERSON: Yes.

EXAMINATION BY MR MOTLOUNG: In the amnesty application held at JISS Centre, Johannesburg, the application by Joseph Makhanye and Jabulani Makhanye. The following is the affidavit by Joseph Makhanye

"I, the undersigned, Joseph B Makhanye, do hereby swear under oath and say the following

(1) The applicant in the matter above and the contents herein deposed to are within my personal knowledge, unless the context otherwise indicates, are to the best of my belief both true and correct.

(2) I hereby make an application for amnesty regarding the killing of one, Ernest Mfanayeto Manana, on the 4th day of May 1990, at the "Easy by Night Tavern" in the Sivukile township, Morgenzon.

(3) I have read the affidavit of my brother, Jabulani H Makhanye, regarding this amnesty application and I do hereby confirm the contents thereof insofar as they relate to me."

Mr Makhanye, do you confirm that the contents hereof are correct?

MR MAKHANYE: Yes, I do confirm that.

MR MOTLOUNG: Now of particular relevance to you, Mr Makhanye, is that your brother, Jabulani, states in his affidavit that you say you have read, that you were part of a group of people that attacked the deceased, Ernest Mfanayeto Manana, in the tavern and that you are one of the people who stabbed him. Is that correct?

MR MAKHANYE: That is correct.

MR MOTLOUNG: What did you stab the deceased with?

MR MAKHANYE: I stabbed him with a knife.

MR MOTLOUNG: And maybe to make more sense out of our evidence, can you tell this Honourable Committee as to why did you go to the tavern on that particular day.

MR MAKHANYE: I was a member of SACO and we had been requested by the owner of the tavern that because the policemen were no longer in the township, we would be responsible for taking care that there are no knives that are brought into the tavern. That was the reason why I went there.

MR MOTLOUNG: Did you see when the whole altercation started on that day, or as the events that led to the death of the deceased started, did you see it yourself or you only caught the thing while it was already on the go?

MR MAKHANYE: I did see it when it started.

MR MOTLOUNG: Okay. Can you then in your words, explain to this Honourable Committee as to what happened on that day.

MR MAKHANYE: As we were still sitting there I heard a gunshot going off. As I looked around as to what was happening I saw a person falling. We then all stood up and asked why did he shoot at this person. At that point we realised that it was the deceased who was shooting.

I then approached the deceased and as I got to him other people were already holding him and he was continuing to shoot. And as I got to him I drew out my knife, trying to make him a little weaker so that he could stop shooting, and I stabbed him once.

MR MOTLOUNG: Let's talk about the knife. Where did you get this knife from?

MR MAKHANYE: As I explained before, the tavern owner had requested us to take care of the place because the police had been driven out of the township. He requested us to guard the place and therefore I obtained the knife from one of the people we had searched as they entered the tavern.

MR MOTLOUNG: Apparently ...(intervention)

ADV DE JAGER: Sorry. While you're there, why did you then a minute ago tell us "I drew my knife and stabbed him"?

MR MAKHANYE: It was not mine per se, but I had obtained it from one of the people we had searched. It was not my knife originally.

CHAIRPERSON: Yes?

MR MOTLOUNG: Now Mr Makhanye, did you know that - in fact we have already heard evidence about a boycott of white business, that was taking place. Did you know anything about this?

MR MAKHANYE: Yes, I did know about it.

MR MOTLOUNG: Now do you know anything regarding the boycott and the late Mr Ernest Manana?

MR MAKHANYE: Yes, I do know something.

MR MOTLOUNG: What is it that you know?

MR MAKHANYE: There was a boycott which had commenced round about April. That boycott had been agreed upon by all the residents. As time went on we met the deceased at a certain cross-roads and he drew his gun upon us and we fled. And we later caught up with him at the tavern as he was then shooting at the people and we did not know why he was doing that.

MR MOTLOUNG: Now did you at any stage know if your brother, Jabulani, did approach the deceased or whether he was going to approach him at any stage? Can you tell this Committee.

MR MAKHANYE: Yes, I did know about that because he had mentioned to me that he would speak to him about the boycott, because the deceased had agreed that he would remain in the township and cooperate with the community, but it seemed as if he was no longer being co-operative because he was chasing us.

MR MOTLOUNG: Now did you know - when you were inside the tavern, did you know that your brother was now going to approach the deceased at some stage, inside the tavern?

MR MAKHANYE: Yes, I did know that he was going to approach him about the said boycott, as to why he had been chasing us off with a gun.

MR MOTLOUNG: Did you at any stage before your brother could approach the deceased, know or expect that there was going to be a fight?

MR MAKHANYE: I did not know that there was going to be a fight or an altercation.

MR MOTLOUNG: Now talking about you yourself, can you repeat, why do you say that you stabbed the deceased?

MR MAKHANYE: I saw him shooting and even earlier on during that day he had been chasing us and I thought that if I attack him he will cease this shooting, because at that time one comrade had already been shot.

MR MOTLOUNG: Mr Makhanye, indirectly we have already heard evidence that you people did go through a criminal trial in the High Court, former Supreme Court, is that correct?

MR MAKHANYE: I did not understand that question.

MR MOTLOUNG: Is it correct that you were charged for the killing of the late Ernest Manana and you were found guilty and sentenced to imprisonment?

MR MAKHANYE: That is correct.

MR MOTLOUNG: How many years were you sentenced to?

MR MAKHANYE: 12 years.

MR MOTLOUNG: When was this?

MR MAKHANYE: I was sentenced in 1992, on the 31st of January.

MR MOTLOUNG: Can I ask you this question, Mr Makhanye. Didn't you kill, stab the deceased simply because he was a police officer?

MR MAKHANYE: No. I did not stab him for that reason. That is because he had already expressed his intention to cooperate with us, but that did not happen.

MR MOTLOUNG: No further questions, Mr Chairman.

NO FURTHER QUESTIONS BY MR MOTLOUNG

CHAIRPERSON: Thank you, Mr Motloung. Mr Nyawuza, any questions?

CROSS-EXAMINATION BY MR NYAWUZA: Yes, Your Honour, I have.

Mr Makhanye, you're telling this Court that you didn't stab the deceased because he was a police officer, why did you stab him? Can you please take us through that again.

MR MAKHANYE: On that same day, earlier on, the deceased had chased us with a gun and he had chased us whilst we were in pursuit of the boycott that he knew about, but he chased us with his firearm at the Sivukile cross-road. And at the tavern I also witnessed him shooting at a person and on enquiring as to why he was doing that, a number of people, a group of people got hold of him and as I approached nearer I joined the crowd and stabbed him just once, just trying to make him weaker so that he is not able to shoot at other people who in the tavern.

MR NYAWUZA: Do you perhaps know as to who was holding the hand that had the firearm?

MR MAKHANYE: I saw my brother, Jabulani, holding the deceased's hand.

MR NYAWUZA: And your further testimony to this hearing is that there were other people who were holding the deceased, is that correct?

MR MAKHANYE: That is correct, there were a lot of people who were holding him. I would think there were more than 100 people there.

MR NYAWUZA: And you stated before this hearing that your stabbing of the deceased was to weaken him, for want of a better word, is that correct?

MR MAKHANYE: That is correct.

MR NYAWUZA: You weaken somebody who is held by a lot of people, is that correct?

MR MAKHANYE: Please repeat.

MR NYAWUZA: I am saying you are weakening somebody who according to your testimony, is held by a lot of people.

MR MAKHANYE: That's correct.

MR NYAWUZA: The stabbing part of it, when you stabbed him, had he already sustained any injuries or you were the first one to stab him?

MR MAKHANYE: When I arrived there others were already assaulting him and I also stabbed him just once.

MR NYAWUZA: My question is simple and straightforward, by the time you stabbed the deceased had he sustained any injuries, yes or no?

MR MAKHANYE: I did not see whether he had been injured or not, but I did witness people assaulting him.

MR NYAWUZA: What were these people assaulting him with?

MR MAKHANYE: Some were using their bare hands, others were using bottles.

MR NYAWUZA: And is it correct, Mr Makhanye, that if I hit you with a bottle, it breaks and upon breaking you sustain an open wound invariably?

MR MAKHANYE: It is possible that it does break and it is also possible that it does not break and therefore you do not sustain an injury.

MR NYAWUZA: So are you saying when you got into the picture, the stabbing part, the deceased was not bleeding from any wound sustained prior to your stabbing?

MR MAKHANYE: No, I did not witness any injury. When I stabbed him ...(intervention)

MR NYAWUZA: So you were the first person to stab him, is that correct?

MR MAKHANYE: When I approached, people were already assaulting him. I am not sure whether any of them were stabbing him as well.

MR NYAWUZA: Mr Makhanye, the unfortunate part about the Panel and myself is that we were not there, so can you kindly put us in the picture. You are saying this guy was being assaulted and he was assaulted by a lot of people, which would invariably mean that he was being attacked from all angles and you came from somewhere else yourself. Briefly tell us as to how many people, you know, just put us in the picture as to how many people were involved, 10 to 15, or three or one person.

MR MAKHANYE: I can make an estimation of about 10 people who were holding him. That is just an estimation.

MR NYAWUZA: Yes, that is what I requested from you, Mr Makhanye. Mr Makhanye, you said you stabbed him once, is that correct?

MR MAKHANYE: That is correct.

MR NYAWUZA: What happened after the stabbing? You stabbed him and walked away, is that correct?

MR MAKHANYE: After that he ceased shooting and thereafter I also left.

MR NYAWUZA: After you had stabbed him he ceased to shoot?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: I am saying, after you had stabbed the deceased he then stopped shooting.

MR MAKHANYE: Yes, I would put it that way.

MR NYAWUZA: Mr Makhanye, you stated before this hearing that you approached - if I get you correctly, you approached the tavern owner and made suggestions that since the police were out of the township, you as an organisation, SACO, would start now monitoring the carrying of weapons in the township, is that correct? Or was the monitoring of the weapons only at this particular tavern?

CHAIRPERSON: Ja, it seems it could also be that the initiative came from the other side.

MR MAKHANYE: He is the person who approached us, we did not approach him. But he approached us and requested us to be responsible and look after the place.

CHAIRPERSON: And it seems to me in respect of the tavern, that little understanding.

MR NYAWUZA: Okay.

Mr Makhanye, are you in essence telling this hearing that you were - let me rephrase my question, Mr Chairman.

Mr Makhanye, according to what I can get out, or what I can get from your statement is that the police had left the township, that is the first point, the tavern approached your organisation to come and search people who go in and out of this tavern and take whatever weapons they have, apparently for safekeeping, but testimony by your brother is that you burn them the following day, so are you in essence telling this hearing that this guy, the tavern owner approached you because the police had left? Is it because the police were given these duties, were there police at this tavern who used to search patrons who came in and out of this tavern?

MR MAKHANYE: Yes, prior to that there were policemen that were guarding the tavern, but after they had been chased out by the community for their lack of efficiency, their lack of efficiency they were chased out of the township.

MR NYAWUZA: Mr Makhanye, are you telling this hearing that it's part of police work to search patrons who go in and out of taverns?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: Yes, Mr Makhanye.

MR MAKHANYE: That is so.

MR NYAWUZA: So are you saying the police station posted police officers to a particular tavern to go and search patrons in and out? Do you expect us to believe that, Mr Makhanye?

MR MAKHANYE: I do not know whether they were posted from the police station, what I do know is that when we visited the tavern the police would search us.

MR NYAWUZA: Mr Makhanye, it's your testimony further that the deceased was a police officer, is that correct?

MR MAKHANYE: He was a policeman.

MR NYAWUZA: And the deceased was staying at Sivukile township, is that correct as well?

MR MAKHANYE: That's correct.

MR NYAWUZA: Why didn't the tavern owner approach him because he was a police officer, and approach you, why not him?

MR MAKHANYE: The community had chased the police out of the township and I do not know his reasons for doing that, because the deceased was in the township, he remained in the township because he expressed his intention to cooperate with the community. As to why the tavern owner did not approach him is beyond me, I do not know.

MR NYAWUZA: I take cognisance of that. Mr Makhanye, let's now come how the knife got to be in your possession. Your testimony here is that people were searched at the door or at the entrance or, where were you seated during the scuffle when the deceased was being attacked by approximately 10 people?

MR MAKHANYE: I would say I was a bit far, I was seated near a corner.

MR NYAWUZA: How far from the entrance?

INTERPRETER: From where I'm seated the door would be where the applicant is pointing.

MR NYAWUZA: And where was this scuffle taking place, was it taking place along the side or behind where you were seated?

MR MAKHANYE: It was in front.

MR NYAWUZA: And you stood up from where you were seated, is that correct, when you saw the scuffle?

MR MAKHANYE: Yes, I stood up and I asked why is he shooting at this person.

MR NYAWUZA: And you approached the deceased.

MR MAKHANYE: That's correct.

MR NYAWUZA: And you took out a knife and stabbed him, is that correct as well?

MR MAKHANYE: That's correct.

MR NYAWUZA: And the purpose of you people being at this place on this particular day was to search people from coming in with knives at this tavern and you yourself had a knife in your possession. How did you come into the tavern with the knife?

MR MAKHANYE: I was one of the people who had been searching people before and if a knife was found we would take this and burn them ...(intervention)

MR NYAWUZA: Mr Makhanye, I agree wholeheartedly with you, that you'd burn these knives, it's your brother's testimony, my question is very, very simple. Mr Makhanye, the scuffle was happening in front of you, you stood up from where you were seated inside the tavern, approached the deceased, took out a knife and stabbed him, how did you come into the tavern with a knife when your purpose for being at this tavern was to talk about searching people that come into the tavern with knives? How did you come to be in possession of that knife, Mr Makhanye?

MR MAKHANYE: It was one of those knives that we confiscated from the people we searched. We would hold onto these knives and thereafter, later or the following day, burn them.

MR NYAWUZA: Mr Makhanye, your testimony is you take turns in searching people who got into this tavern, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: And if I'm to make sense out of your testimony, if there were to be about 10 people who came to this tavern with knives and you took turns in searching these people, about 10 of you would have weapons with you. Mr Makhanye, your brother's testimony is that upon getting a knife from anybody who entered into the tavern, you'd put the knives into a bag. How far true is that, Mr Makhanye?

MR MAKHANYE: Yes, we would put it in a bag.

MR NYAWUZA: Why was your knife not put in the bag, Mr Makhanye?

MR MAKHANYE: It was in the bag.

MR NYAWUZA: Mr Makhanye, are you saying "eskwamene" as in a bag or in your pocket?

MR MAKHANYE: Yes, there was a large bag which we used for storing these knives ...(intervention)

ADV DE JAGER: But the word "eskwamene" ...(intervention)

MR MAKHANYE: After the tavern closes we would take out the knives that were in our possession and put them in that large bag.

ADV DE JAGER: The word "eskwamene", isn't that your pocket, your own pocket, not a bag?

MR MAKHANYE: There was a large bag, but you would not deposit a knife that you found at the same time at that bag. You could keep it with you or drop it at that bag.

ADV DE JAGER: But that bag, the big bag, separate bag, would you call it in your language "eskwamene"?

MR MAKHANYE: Correct.

ADV DE JAGER: Alright ...(indistinct - no microphone)

INTERPRETER: The word is "isikwama" does refer to a bag or a pocket.

MR NYAWUZA: If I am ...(intervention)

CHAIRPERSON: I'm even worse off, what language is it?

INTERPRETER: isiZulu.

CHAIRPERSON: Thank you. Now at least I know something too.

MR NYAWUZA: So Mr Makhanye, are you telling this hearing that you'd searched the patrons who got into this tavern and keep whatever you got from them to yourselves, is that correct, until the tavern is closed?

MR MAKHANYE: It used to happen that sometimes yes, we kept those in our possession or sometimes we would drop them at the bag, but that big bag was not with us, it was the tavern owner who kept it.

MR NYAWUZA: Do you know anything about the refusal by the deceased to be searched when he entered into the tavern?

MR MAKHANYE: Yes, it's something I heard about. It is not something that I witnessed, but it is something that I hear from other people, that the deceased had entered into the tavern with a firearm.

MR NYAWUZA: Mr Makhanye, I'm going to request that you respond to my questions and don't give us a paragraph. My question was very simple ...(intervention)

MR MOTLOUNG: Mr Chairman, with all due respect, I'm deliberately going the full mile to make sure that I interfere as little as possible with the cross-examination by my learned friend, but in all fairness to my client, I don't understand what his problem is, he seems to be getting answers.

CHAIRPERSON: Yes. Well, let's carry on Mr Nyawuza.

MR NYAWUZA: Mr Makhanye, do you anything about the deceased's refusal to be searched when he entered into the tavern?

CHAIRPERSON: Let me explain to you what answer I got here, so perhaps you understand directly what the witness says, I ...(indistinct - intervention)

MR MAKHANYE: I heard that from other comrades, that he had refused. I heard that from the comrades who were at the door.

CHAIRPERSON: That is what I thought I heard too, but perhaps you have heard something different when you listened directly to him.

ADV DE JAGER: Was he already in the tavern when you turned up?

INTERPRETER: Please repeat that.

ADV DE JAGER: Was the deceased in the tavern before you arrived at the tavern? Who arrived first, you or the deceased?

MR MAKHANYE: I arrived first.

ADV DE JAGER: So he came afterwards?

MR MAKHANYE: Yes, he did come afterwards.

ADV DE JAGER: And weren't you searching people at the door when he turned up?

MR MAKHANYE: No, I was not. I had searched some and I had left and it was the other comrades who continued searching the people.

ADV BOSMAN: What did you generally do when a person refused to be searched?

MR MAKHANYE: We would discuss the matter with that person and if he still doesn't want to be searched, we will inform the tavern owner.

ADV BOSMAN: But would he be let into the tavern?

MR MAKHANYE: Ekskuus?

ADV BOSMAN: Would he be let into the tavern?

MR MAKHANYE: No, he would not be permitted to enter the tavern.

ADV BOSMAN: Do you know why the deceased was permitted to go in when he refused, do you know at all?

MR MAKHANYE: No, I do not know.

ADV BOSMAN: Thank you. You may proceed.

MR NYAWUZA: Thank you.

Sir, the questions that have been put to you by the Panel, regarding why was the deceased allowed to get into the tavern with a firearm, what would normally happen, would you - you stated that you'd approach the tavern owner and tell him that Mr X refuses to be searched and we don't allow him, wasn't the same procedure followed in this instance, Mr Makhanye?

MR MAKHANYE: I heard about that when the deceased was already inside. I do not know whether the people who were searching at the door did approach the owner of the tavern, but I heard about it when the deceased was already in the tavern.

MR NYAWUZA: For how long had the deceased been in the tavern until the incident that led to his death, Mr Makhanye? Approximately, I don't expect you to say an hour or ... just approximately.

CHAIRPERSON: Well let's hear. Did you see him arriving at the tavern?

MR MAKHANYE: I saw him when he was already inside.

MR NYAWUZA: Mr Makhanye, is it correct - you made an affidavit that I would wish to refer you to, it's on page 15 of the record. You stated before this hearing that you saw everything that happened, am I misquoting you or not?

MR MAKHANYE: Are you referring to everything that happened at the tavern or what happened to the deceased?

MR NYAWUZA: Ja, everything that happened to the deceased at the tavern.

MR MAKHANYE: Yes, that's what I said.

MR NYAWUZA: In your affidavit on page 16, you talk about the deceased having a squabble with somebody, a quarrel with somebody from Newcastle, where he took out his firearm and shot at this gentleman who he missed and unfortunately shot Nlangamandla, a member of the ANC Youth League. When did this happen?

MR MAKHANYE: When a gunshot went off I saw this person from Newcastle rushing off and I thought that the deceased was shooting at this person from Newcastle, but unfortunately he missed and Nlangamandla was shot.

MR NYAWUZA: You thought he was having a squabble with this guy from Newcastle, is that what you're telling us?

MR MAKHANYE: That is what I thought. That is when I saw this person rushing off, fleeing.

MR NYAWUZA: And you attested thereto, but not in the exact words that you are telling us today here. If I can take the matter further. Mr Makhanye, my question is, you made an affidavit under oath, where you stated -I'll read it in Afrikaans and interpret it to yourself.

"He bought four bottles of beer and sat and drank with other people at the other table. The deceased moved towards the direction of the toilet. On the way to the toilet the deceased quarrelled with a man from Newcastle."

If I take you back to this, Mr Makhanye, the deceased bought four beers and he sat with these other guys and drank. Is that your testimony, is that what you're saying in this affidavit?

MR MAKHANYE: Yes, I did see the deceased sitting with some people and they were drinking.

MR NYAWUZA: The Honourable Panel, if I were to lay the basis for my line of questions.

Mr Makhanye, you made an affidavit on the 30th of June 1999, and you attested thereto. Was the said - the said affidavit is written in Afrikaans and my question to you is, was it read to you and interpreted to yourself?

ADV BOSMAN: Can you perhaps refer us to the page number you're referring to.

ADV DE JAGER: I think it's page 16 and the ...(indistinct) was on page - well the original affidavit is hand-written ...(intervention)

MR NYAWUZA: Page 18 to page 21.

ADV DE JAGER: But I think you could simply ask him whether he agrees with what is stage here.

Did the deceased stand up and go to the toilet and did he quarrel with a man from Newcastle on his way to the toilet?

MR MAKHANYE: I saw that person rushing off and I thought that maybe they had been quarrelling, because this person was from the counter and the counter is close to the toilet.

ADV DE JAGER: According to what is stated here, you told the person who took down the statement

"The deceased then - after the quarrel, the deceased then took out his weapon, his firearm and fired a shot at the man from Newcastle, but he missed him."

Did you see this happening?

MR MAKHANYE: I did see the firearm being pointed at that person, but the bullet hit another person.

ADV DE JAGER: Yes. And after that, what happened?

MR MAKHANYE: The people who were inside the tavern stood up.

ADV DE JAGER: And they converged on the deceased?

MR MAKHANYE: Yes, some did approach the deceased and they questioned him on why he was shooting at that person.

ADV DE JAGER: So am I correct that according to what you saw and what you're telling us now, the reason for the quarrel was because there was a altercation between the deceased and the man from Newcastle, he shot at the man, missed him and he shot Nlangamandla?

MR MAKHANYE: I saw the gun pointing at that person ...(indistinct) person, and I thought that they were fighting or they were having an altercation.

ADV DE JAGER: Yes. And then the people asked the deceased "Why do you shoot that man?".

MR MAKHANYE: That's true.

ADV DE JAGER: And that started the whole, the quarrel that resulted in the killing of the deceased.

MR MAKHANYE: That's correct.

ADV DE JAGER: So this had nothing to do with politics.

MR MAKHANYE: This entire incident started at the cross-road when he was chasing us with his firearm.

ADV DE JAGER: But if he didn't shoot at that man from Newcastle, would you have killed him that night?

MR MAKHANYE: No.

MR NYAWUZA: Mr Makhanye, to take what the Panel has asked you, further. You've stated in your evidence-in-chief that your reason for standing up, going to the deceased and stabbing him was to weaken him, do you still agree with that?

MR MAKHANYE: That is correct.

MR NYAWUZA: If I were to refer the Honourable Panel to page 173, I think line 25.

CHAIRPERSON: Yes.

MR NYAWUZA: If I were to read it, apparently there is an Afrikaans interpreter, so I can just go ahead and do it in Afrikaans.

CHAIRPERSON: You can't summarise it?

MR LAX: Ja.

CHAIRPERSON: I mean it's already part of the record. What is it that you want to put to the applicant?

MR NYAWUZA: I put it to the applicant that this is what he said even in the trial, that

"His intention with the stab wound was to prevent the deceased to shoot and not to kill him."

So do you agree with what you said in the High Court in your trial?

MR MAKHANYE: Yes, I did state so in Court and I did this because I was trying to protect myself, because at the time ANC activists were sentenced to death.

MR NYAWUZA: That is what your brother said in this Court, that you changed part of your testimony in the High Court, so that you shouldn't be hanged. And so are you saying the lines that I've read to you, you said it to avoid being hanged? - being sentenced to hang, sorry.

MR MAKHANYE: That's correct.

MR NYAWUZA: So then - and your testimony today is that you stabbed the deceased to weaken him, you didn't

MR MAKHANYE: That's correct.

MR NYAWUZA: Hello? I've got a problem with my headphones.

CHAIRPERSON: Have you got a problem with your headset.

MR NYAWUZA: Yes, I do.

CHAIRPERSON: Have you still got some distance to cover or are you, how far has your questioning progressed?

MR NYAWUZA: I'm going to ask him as regards his political alliance.

CHAIRPERSON: Yes, but will it still take a while, because if so, then I'm going to - if there is no prospect that you will be concluding your questioning in the next few minutes, then I will consider taking the luncheon adjournment at this stage.

MR NYAWUZA: I would agree with the Panel, that we adjourn and come back afterwards.

ADV DE JAGER: Could I enquire. Do you dispute that he was a member of SACO, and that he was a supporter of ANSIL?

MR NYAWUZA: This hearing - the Committee will realise that I dispute his affiliation to SACO, because what they said during their trial is not what they are saying here and there are ...(indistinct) statements from the trial that defeat what they're here for today. Those who not defeat what they're here for today, they dispute and say they did it because they ...(intervention)

CHAIRPERSON: Yes, no, it's fine, you put it in dispute, you don't need to argue it now.

ADV DE JAGER: The only thing, could I point out to you that it's almost common cause that at trials people wouldn't at that time admit that they were members of the ANC or of ANSIL, for different reasons. Maybe they thought they would have a less sympathetic hearing if they would admit that, and different sorts of reasons, that's round about 1990, the time when this happened. Afterwards things changed, but we often find it and there's really nothing - we haven't heard any evidence to counter that sort of reasoning. I don't know whether you accept it or whether you would counter it.

MR NYAWUZA: It's my intention to counter that.

ADV DE JAGER: Okay.

CHAIRPERSON: Yes. We'll adjourn and reconvene at 2 o'clock.

MS LOCKHAT: Please stand.

COMMITTEE ADJOURNS

ON RESUMPTION

JOSEPH MAPALILE MAKHANYE: (s.u.o.)

CHAIRPERSON: Which is the next matter on the roll, Ms Lockhat?

MS LOCKHAT: Chairperson, it's the "Armed Robbery, Transvaal Galvanised Company. That's with Daniel Moele. That's the next matter on the roll. We have a victim, Mr van der Walt, in that specific incident and he needs to leave today.

CHAIRPERSON: Yes, we'll more than likely not going to be able to go much beyond that particular matter now. Are there no other of the legal representatives who are still waiting for their matters, who could be excused at this time, whose matters we won't hear in any event? So that it's only those legal representatives who are involved in the Moele matter.

MS LOCKHAT: Yes, it's Adv Daniels that is here, so we won't be dealing with his matter, which is the killing -Mr Ntuli, that's the applicant.

CHAIRPERSON: Alright. Okay, so in that event we can then excuse Mr Daniel at least. We won't get to your matter before the end of the day. Thank you.

Yes, Mr Nyawuza.

MR NYAWUZA: Thank you, Mr Chairman.

Mr Makhanye, you are still under oath, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: Mr Makhanye, where did you stab the deceased, in what part of the body?

MR MAKHANYE: I stabbed him on the back.

INTERPRETER: As the applicant is indicating.

MR NYAWUZA: Mr Makhanye, tell me, had the deceased not shot at Nlangamandla, would this matter have ended up as it did on this particular day? Would he have been killed in any way?

MR MAKHANYE: Nothing would have happened.

MR NYAWUZA: Mr Makhanye, you've on numerous occasions referred this hearing to the issue that you told lies at the trial, at your trial, to avoid being sentenced to death, is that correct?

MR MAKHANYE: That is correct.

MR NYAWUZA: And would you agree with me when I say in our application to this Committee you stated all the facts that you thought were relevant for this hearing?

MR MAKHANYE: Please repeat that.

MR NYAWUZA: Mr Makhanye, you stated that when you appeared in your trial in the High Court, you had to change the correct version of actually what happened on the particular day because if you had told the Court about your alliance to the ANC Youth League and SACO, you would have received a more severe punishment, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: And that is why we're here today before this Committee, this is one Committee that you believe is going to listen to your pleas without taking any sides, is that correct? And you came here knowing that whatever you're going to tell the Committee will be the truth and nothing else but the truth, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: And is it correct that there's a form that you completed when you applied for this amnesty whilst in prison?

MR MAKHANYE: Yes, I did fill in a form.

MR NYAWUZA: And during your testimony you have indicated tot his hearing that you stabbed the deceased to weaken him, was it not to revenge against the shooting of your fellow comrade, in your words, Mr Nlangamandla?

MR MAKHANYE: No.

MR NYAWUZA: Are you saying you stabbed to weaken him, is that correct?

MR MAKHANYE: Yes, to stop him from firing any further shots.

MR NYAWUZA: I would wish to refer this Committee to page 4 of the record. At the bottom it's

"(a) State political objective sought to be achieved."

Mr Makhanye, I don't know how wrote this, whoever wrote here said:

"We wanted to revenge the shooting of Nlangamandla, one of our brothers. Nlangamandla was not killed."

Are you still saying you didn't stab the deceased to revenge Nlangamandla?

MR MAKHANYE: No.

MR NYAWUZA: "No" what, Mr Makhanye?

MR MAKHANYE: No, it was not a revenge attack and that is not what I said when the form was filled in.

MR NYAWUZA: Mr Makhanye, it's funny, every time something that puts you on the spotlight is said, you disagree with it and say it's not what you said. But your signature appears at the bottom as on page 7 of the record. You attested thereto, Mr Makhanye. Are you saying this was not read and interpreted to you in the language that you understand best?

MR MAKHANYE: There was an interpreter, but it was not read back to me.

MR NYAWUZA: So Mr Makhanye, what was he interpreting if you say there was an interpreter but he did not read this back to you? What is it that he was interpreting?

MR MAKHANYE: That person was interpreting what I was saying to the person writing or filling in the form, but that person did not read it back to me, as to whether he had written what I told them.

ADV DE JAGER: Did you attend school?

MR MAKHANYE: I went up to standard four.

ADV DE JAGER: Can you read English?

MR MAKHANYE: No.

ADV DE JAGER: Can you understand English?

MR MAKHANYE: I can understand a little bit.

ADV DE JAGER: Afrikaans?

MR MAKHANYE: I can understand a bit of Afrikaans as well.

MR NYAWUZA: So Mr Makhanye, are you - I want to put more emphasis on this thing, are you saying this was not a revenge killing, but a political motivated killing?

MR MAKHANYE: That's correct.

MR NYAWUZA: Who ordered you to kill the deceased?

MR MAKHANYE: No-one ordered me.

MR NYAWUZA: Was it within the policies of SACO that people should be killed when they did not adhere to a simple, simple search?

MR MAKHANYE: No.

MR NYAWUZA: Do you agree with me, Mr Makhanye, when I say you exceeded the boundaries, for want of a better word, of the people that you at the time regarded as your leaders, by killing the deceased instead of reprimanding him in a proper way, which was not clearly explained to this hearing today by the first applicant?

Mr Makhanye, my question is, would you agree with me that you exceeded the bounds of, you went beyond the bounds of your policies by killing the deceased?

MR MAKHANYE: That is true, it was not my intention to kill him, but I was just trying to weaken him so that he does not shoot other people as well.

MR NYAWUZA: Mr Makhanye, can you tell this hearing what the death of the deceased here brought to your struggle to have this one door, one shop thing. Did it bring up any fruit, did his killing bring up any fruit?

MR MAKHANYE: No, it did not assist us in any way.

MR NYAWUZA: So this was just a killing in vain?

MR MAKHANYE: No, it did not assist me in any way.

MR NYAWUZA: This was a mistake, Mr Makhanye, the killing of the deceased was a mistake. Are you trying to tell this hearing that?

MR MAKHANYE: It was a mistake, I was just trying to frighten him or weaken him so that he does not shoot anymore people.

MR NYAWUZA: Mr Makhanye, by the time you stood up to stab the deceased, you stated before this hearing that there were about 10 people surrounding him, don't you think these people could have done that, they could have weakened him?

MR MAKHANYE: No, that did not occur to me because I stood up and proceeded to him. I can just say that it did not occur to me.

MR NYAWUZA: Mr Makhanye, I put it to you that you wanted to be seen to be doing something to this police officer, what's your comment on that?

MR MAKHANYE: It was not my intention to attack him, but I just wanted to weaken him. He was shooting at someone and he had done this before, earlier on during the day.

MR NYAWUZA: Mr Makhanye, what's your definition of attacking? If you go to somebody with a knife in your hand and you stab that person, you attack him, so what's your definition of attacking?

MR MAKHANYE: An attack is something that is pre-planned, what happened was not planned.

MR NYAWUZA: Mr Makhanye, did the deceased attack anybody on this day?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: Yes.

MR MAKHANYE: No, I did not hear of anyone, I just saw him shooting Mr Nlangamandla.

MR NYAWUZA: Was his shooting not an attack on - was the shooting of Nlangamandla not as a result of an attack on somebody?

MR MAKHANYE: No.

MR NYAWUZA: No further questions, thank you.

NO FURTHER QUESTIONS BY MR NYAWUZA

CHAIRPERSON: Thank you, Mr Nyawuza. Ms Lockhat?

MS LOCKHAT: No questions, thank you, Chairperson.

NO QUESTIONS BY MR LOCKHAT

CHAIRPERSON: Thank you. The Panel got any questions?

ADV BOSMAN: No questions, thank you.

CHAIRPERSON: Re-examination?

MR MOTLOUNG: I've got none, thank you, Mr Chairman.

NO RE-EXAMINATION BY MR MOTLOUNG

CHAIRPERSON: Mr Makhanye, you're excused, thank you.

WITNESS EXCUSED

CHAIRPERSON: Is there any further evidence that you intend leading, Mr Motloung?

MR MOTLOUNG: No, Mr Chairman, thank you.

CHAIRPERSON: Is that the case for the two applicants?

MR MOTLOUNG: That is the case for the two applicants, Mr Chairman.

CHAIRPERSON: Yes, thank you. Mr Nyawuza, have you got any evidence that you intend leading?

MR NYAWUZA: Yes, Mr Chairperson, the father of the deceased would wish to give testimony as to why he's opposing this amnesty today.

CHAIRPERSON: Yes, is he present?

MR NYAWUZA: He is present today.

CHAIRPERSON: Yes, won't he come forward.

SIMON MANANA: (sworn states)

CHAIRPERSON: You may be seated. Mr Motloung, won't you just switch off your microphone please. And the other one too. Thank you. Yes, Mr Nyawuza.

EXAMINATION BY MR NYAWUZA: Mr Manana, you are quite aware of what you're here for today, is that correct?

MR MANANA: Yes.

MR NYAWUZA: We're opposing an amnesty application for the two guys who have just given testimony, and my understanding is you've been through this hearing all along and you know what they've said. Can you briefly tell this Committee your reasons as regards your opposition to the granting of the amnesty to the two applicants.

MR MANANA: Well yes, I am opposing the application of the two applicants, because what they have advanced to this Commission is not true, rather the evidence that they have advanced to this Commission is not true. And again, they are my children as well. They were growing in front of me and they were part of my soccer team, we are somewhat related with them. And one surprising thing was what they did, killing my son that is. I really don't know what the problem was as such, and I don't even know why they didn't come to me with regards to the problem they had with my child, then tell me the reasons as to ...(intervention)

ADV DE JAGER: Mr Manana, a bit slower, the interpreters should tell us what your telling.

MR MANANA: Well I reiterate the fact that I oppose the application because of the reasons that firstly, they knew me as the father of the deceased, as well as the fact that they were the residents of the area and they grew in front of me and were also members of the soccer team that I had or the club, Red Rovers.

And it surprised me when I heard that they had killed my son. And also, that organisation was not an official organisation, instead it was a gangster. Why do I say this? It is because they were coercing people coercing citizens or the residents of the area to because part of them. They would raid houses and get the children out of their houses, kick the doors and harass people in their respective homes.

I remember this particular house, it was on stand number 14, Johannes Zwane's house that is. They got into this home, broke the windows, assaulted the grandmother in there and looking for a boy called Thabo. They were gangsters by the way, and the community, there was a councillor who was appointed there, working with the community, from the community ...(intervention)

MR NYAWUZA: Mr Manana, what was this councillor's name?

MR MANANA: Johannes Zwane.

MR NYAWUZA: Oh, the guy whose windows were broken, is that so?

MR MANANA: Yes.

MR NYAWUZA: What happened subsequent to the breaking of the windows? Did they give any reasons as to why they were breaking the windows to Mr Johannes Zwane's residence?

MR MANANA: Because he did not want his sons or his children to become part of this SACO organisation, because it was apparent to the community that they were a gangster.

MR NYAWUZA: So when the windows to Mr Zwane's house were broken, they were broken for the reason that Mr Zwane's sons did not want to join SACO, is that so?

MR MANANA: Yes.

MR NYAWUZA: Mr Manana, testimony has been given before this hearing that a certain Vusi Ghama, who gave testimony in the trial, was an IFP member. Can you briefly take this hearing through his involvement in politics, if there is any.

MR MANANA: No, I don't know him. I just know him as an ordinary man, I did not know his political affiliation thereof.

MR NYAWUZA: Did he at any stage - did you ever hear of him addressing a meeting of some political organisation? Or ever since you knew him, at no stage did he belong to any organisation?

MR MANANA: No, I did not.

MR NYAWUZA: So are you in essence disputing what the applicants have said before this hearing today?

MR MANANA: Yes, I dispute every fact because they have not yet told any truth. Whatever they've said is so much evasive, they say this and the other will say this, somehow contradicting each other. You know they have not said anything, they just killed my son just for the sake of killing.

MR NYAWUZA: Mr Manana, when I consulted with you yesterday at Millpark Holiday Inn, you told me something about Gantana ...(intervention)

INTERPRETER: Told me about who?

MR NYAWUZA: Gantana. Can you briefly tell this hearing who Gantana is and how you got to know him.

MR MANANA: This Gantana is Gantana Mishak Mabuza. I know him very well, he is a civilian there or a citizen of Morgenzon. He was also a councillor and people did not want him, they did not want him and then they forced him to resign, but he did not, he was resisting to resign because he had no reason why he should resign.

MR NYAWUZA: And what happened when he refused to resign, Mr Manana?

MR MANANA: They went for him in some place, I don't know whether it was in a tavern or what. They took him back to his home or house. He got inside the house and the wanted to still go with him to the office where he will tender his resignation. He refused and they broke the windows of the house and terrorised his home and he shot back to them as well until such time as the police came. It was - this happened during the day.

MR NYAWUZA: Mr Manana, is it correct that you attended their trial right throughout, when it was at Evander High Court?

MR MANANA: Yes, that is true.

MR NYAWUZA: Did they at any stage during the trial state to the Presiding Officer there that they were members of a political organisation?

MR MANANA: The judge yes, did ask that question to them, if they were affiliated to some political organisation.

MR NYAWUZA: And what did they ...(indistinct) as their response?

MR MANANA: The response was no, they were not. Joseph Makhanye even said he is so sorry for what he has done because he did not know what he was doing. This is why they were gangsters, because they did not know what they were doing. He said that in full hearing of the judge.

MR NYAWUZA: What is it, Mr Manana, that would give you satisfaction to can say to this Committee that in view of what was happening during the period and in view of what these people have said, I would agree to amnesty being granted to them? What is it that you would have wished the applicants to have said before this Committee?

MR MANANA: There's nothing I can expect from them because they were troublesome. There is just nothing I will ever expect to be said from them, or from their side. I think they should just stay there in prison, that's where they belong. And they cannot even raise my son and bring him back to life and put him right in front me.

MR NYAWUZA: Mr Manana, when I consulted with you yesterday you told me about a kid that the deceased fathered before he passed away. Can you tell this hearing about that kid.

MR MANANA: Yes, there is a child who was born in 1987, 16 December, and I am the guardian of the child now. This pains me so much, each time I take a look at this child, poor child, because of their deeds. Why they kill him?

MR NYAWUZA: Mr Manana, if we were for some reason to say okay, the applicants before this Committee were acting in line with what transpired there and they were members of SACO, for example if we say they were members of SACO, they were acting within the ambit of the policies of SACO, what is it that you as a resident of Morgenzon then, during that period, would say wouldn't have been in line with not buying in town but buying in the township? What is it that would have made you as an individual, to buy in town and not in the location?

MR MANANA: Well the community was coerced to do that. This particular place is so small. I think the man, this other man knows the place because that's where he was born. For us not to buy from town we would have suffered starvation, so we had to buy from town as well. While these ones carried their mission of being thugs, they were harassing the community, they were never reasonable in dealing with the community, instead they harassed. And I'm a civilian of that place and I have worked for the municipality department. I worked there at first as a policeman then, municipality police ...(intervention)

MR NYAWUZA: Mr Manana, testimony has been given during the hearing that your son, the deceased on a particular day, on the day that he died, he was from this place, he was from town and he refused to be searched and he subsequently went to the tavern where he was killed. I believe you know the events of that day still, not that fresh you know, but they still haunt you. Do you know as to whether he brought anything home that he bought from town that would have necessitated him not wanting to be searched?

MR MANANA: Well I won't respond to that, I won't even finish to respond to that because that's just a story. Because they themselves used to go and buy from town, but refused others to buy from town, or buy in town. There was nothing that you could purchase in the township, there was not even a butchery and there isn't even to date. There's simply nothing. It is only just recently that we've had some such developments. And some people had accounts in town, various shops or stores, and would go and do their business in town. There was nothing to do in the township. They were just in their own agenda and they want to further their mission of gangsterism.

MR NYAWUZA: Mr Manana, in not more than two lines, three lines, how would you address this Committee regarding this amnesty application?

MR MANANA: I will request this Committee not to grant amnesty to these because there's no truth. What they were up to was a game of killing people for nothing. This is my plea to you and I have difficulties now in raising the child, the deceased's child that is, to take him to school and further his education. There is nothing I would say, I would just request that they go back to prison where they belong. Everybody heard, we all heard what they have said.

MR NYAWUZA: Thank you, Chairperson, that is the case for the victim.

NO FURTHER QUESTIONS BY MR NYAWUZA

CHAIRPERSON: Thank you, Mr Nyawuza. Mr Motloung, questions?

CROSS-EXAMINATION BY MR MOTLOUNG: Thank you, Mr Chairman.

Mr Manana, first and foremost, my sympathies to you about this unfortunate incident. Getting down to the matter itself, please correct me if I'm wrong. Listening to you the way you give your testimony, the history you're sketching, I get the impression that you were totally opposed to problems like the consumer boycott that was sort to be imposed there. Is that impression correct?

MR MANANA: I wasn't opposing that, but it didn't bother me, I was not part of it. I was not even entertaining it, it was none of my business. They were just carrying that themselves, but I wasn't bothered about that.

MR MOTLOUNG: But all said and done, the truth or the fact of the matter is that there was this boycott, correct?

MR MANANA: Well there would be such and sometimes they would initiate it themselves because they were up to this gang.

MR MOTLOUNG: And you started off by saying that they shouldn't, the two applicants, get amnesty because what they are saying is not true. Am I under the correct impression that you in fact do not know what happened because you were not there?

MR MANANA: Well yes, I don't know, but the truth they have not yet told to this Commission. One thing they have not done is to disclose the truth to this Commission, that is convincing enough.

MR MOTLOUNG: And there seems to be this deep-seated feeling that I seem to be picking up consistently from you, that it simply baffles you, you cannot understand how this whole thing happened because the type of relationship that you yourself, your son and they in particular had, such that this was something out of the blue, isn't it?

MR MANANA: Yes, it did baffle me because as I said, those two were my children as well, they belonged to the soccer club, my soccer club and they looked at me as their father, now that really did surprise me, what transpired thereafter.

MR MOTLOUNG: Did you know SACO?

MR MANANA: I would see it singing in the streets and they will say they are SACO, and sometimes I would go to their meetings.

MR MOTLOUNG: Yes, and I'm sure you are the first to admit that SACO had a political problem, or was it a criminal problem that they had in your genuine views?

MR MANANA: I would say they were criminals because they would go and raid the houses and do whatever they want to do and harass the occupants of various houses each time they want support from the children. And they would just about anything that came to them or that crossed their minds and harassed extensively.

MR MOTLOUNG: Maybe in some sense I understand why you would call such people criminals, but is it correct that they would do everything in the name of politics, they would be singing and doing all these things all in the name of politics, is that correct?

MR MANANA: But they were not able to explain before the Commission their political views and their political deeds.

MR MOTLOUNG: Mr Manana, these people that went about troubling the councillors and so on, were they saying that they're doing all these things in the name of politics?

MR MANANA: I don't remember the name of politics, I only heard SACO, and I knew that SACO it was their thing, SACO was their thing rather. I never heard them say even once that they're IFP or ANC or whatever, I never heard anything to that extent.

MR MOTLOUNG: Okay. And in conclusion, are you repeating what you said when you were asked about why do you think your son was killed by these applicants, that they have killed him for the sake of killing? Is that your genuine view about the matter?

MR MANANA: Well I don't know the reason and I haven't seen one. And they failed to explain the reason to me, they don't even know what they were doing themselves.

MR MOTLOUNG: But you seem to know, and please correct me if I'm wrong, you seem to know that your son was not killed because he was a policeman, that you seem to know.

MR MANANA: Yes, that I know.

MR MOTLOUNG: I have no further questions.

NO FURTHER QUESTIONS BY MR MOTLOUNG

CHAIRPERSON: Thank you, Mr Motloung. Ms Lockhat, questions?

MS LOCKHAT: No thank you, Chairperson.

NO QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Mr Manana, did they chase the police out of the township?

MR MANANA: Yes, that I heard, that the police were being chased from the township to town.

CHAIRPERSON: And it seems as if the councillors were also targets.

MR MANANA: Yes.

CHAIRPERSON: You say that now and then you went to one of these, or some of these meetings, these SACO meetings, is that right?

MR MANANA: Yes.

CHAIRPERSON: And what kind of meetings were they, what was being discussed at those meetings, was it politics, political questions or what?

MR MANANA: No, it wasn't politics, they were talking about payments, that I don't even know why because it was such a little money or a very small amount of money that we had to pay for the services. And the councillors ...(indistinct) that and we agreed for that for the improvement of the township, because the township had nothing, the infrastructure was a bit poor. So that happened with the consent of the councillors and the community as well.

CHAIRPERSON: So at those meetings that you went to, the people who attended the meetings, did they complain about the money that they had to pay, the state of the township, things like that, lack of development, that sort of thing?

MR MANANA: Yes.

CHAIRPERSON: Yes. Thank you, Mr Manana.

ADV BOSMAN: I have just one question. The two applicants, were they active in these meetings of SACO where you attended them? Did they participate actively?

MR MANANA: Well yes, they were there. And there's another brother of theirs and he was a councillor, he is a councillor now, and they would be attending such meetings. They are a very big family, I mean the applicants, so they will be in attendance as well.

ADV BOSMAN: Thank you.

MR MANANA: Thank you, thank you.

CHAIRPERSON: Thanks. Have you got any re-examination, Mr Nyawuza?

MR NYAWUZA: Yes, Chairperson, I have a few questions.

CHAIRPERSON: Do you.

RE-EXAMINATION BY MR NYAWUZA: Mr Manana, you were asked by the Committee as regards the participation by applicant 1 and 2 at these meetings and you said they would be there and there's one of their brothers who is now a councillor, who is he?

MR MANANA: George.

MR NYAWUZA: What was he to SACO, as it was known then, was he a chairperson or was he anything there?

MR MANANA: Well I would not be able to say that, but I remember when he insulted the parents that did not want to comply and be co-operative and he would just insult us and say "Voertsek to all of you who don't want to support this idea". These is why I say these are not telling the truth, they are lying.

MR NYAWUZA: As regards the death of your son, Mr Manana, did SACO offer any condolences to yourself during the bereavement, or did they say to you "Mr Manana, we distance ourselves from the incident that happened at this tavern", what was their demeanour?

MR MANANA: Not even one of the Makhanye family came to my house with regards to this. Over and above that, their father is not in talking terms with me. I don't even know why he's doing that, maybe he is the one who sent his sons to go kill my son. Anyway that's my presupposition, but I don't know why he's not in talking terms, why he's not talking to me.

MR NYAWUZA: No further questions, thank you, Mr Chairman.

NO FURTHER QUESTIONS BY MR NYAWUZA

CHAIRPERSON: Thank you, Mr Nyawuza. Mr Manana, thank you very much, you're excused.

ADV DE JAGER: Mr Manana, is there peace in the township now?

MR MANANA: Yes, there is, too much peace.

ADV DE JAGER: And are you still chief of the soccer?

MR MANANA: Oh yes, I'm still the chief of the soccer.

ADV DE JAGER: Did you win this season?

MR MANANA: Oh yes, I've got a lot of cups and chiefs and everything. My team is winning too much.

ADV DE JAGER: Thank you.

MR MANANA: Thank you.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

CHAIRPERSON: Yes, Mr Nyawuza, is that it?

MR NYAWUZA: Yes, that's the case for the victim, thank you.

CHAIRPERSON: Yes, thank you very much. Ms Lockhat, any evidence?

MS LOCKHAT: No, thank you, Chairperson.

NO QUESTIONS BY MR LOCKHAT

CHAIRPERSON: Thank you. Mr Motloung, have you got any submissions?

MR MOTLOUNG IN ARGUMENT: Yes I do, Mr Chairman.

Mr Chairman, without sounding like a politician I cannot do more than ask the Honourable Committee to view this matter in its proper perspective, and the perspective for me is basically simple, it's part of that unfortunate past. And if one looks at the particular circumstances of this case, I must admit that this is not the first matter that I've done regarding amnesty, but I have found this matter to be particularly tricky and I would submit that I will really try and impress upon this Committee to view or approach it with the caution that this matter deserves.

For starters, there's mention of a tavern and this thing about the fact that the whole incident took place within a tavern, has the potential, a real potential to cloud the real issues here. But as we have heard ourselves on the evidence of Mr Simon Manana, this Morgenzon, Sivukile township, is a small place, I could well imagine that there's little to do in Morgenzon, especially for leisure, except go to this tavern. It seems that was the in-thing.

CHAIRPERSON: Was it on a Saturday?

MR MOTLOUNG: Apparently it was on a Friday, it was on a Friday.

CHAIRPERSON: Was it on a Friday evening that this thing happened?

MR MOTLOUNG: That is correct, Mr Chairman.

CHAIRPERSON: Okay.

MR MOTLOUNG: Now Mr Chairman, I'm sure most of the cases that this Committee has had to deal with were relatively of a more simple nature, where you have people belonging say to the African National Congress or the PAC and people carrying firearms or carrying bombs or limpet mines, things of that nature. But if one looks at what happened here, this was a clearly unsophisticated type of struggle in an unsophisticated area, very small area.

On the face of it, it appears that people didn't fight their battles the way some people did, like carrying AKs and so on but the truth that stares all of us in the face seems to be that there was this political problem of a boycott. Even Mr Manana can admit that much.

And may I pause here to refer just in passing to Mr Simon Manana. With all due respect to him, I find myself constrained to submit, with all due respect to this Honourable Committee, that his testimony doesn't really take this matter far. He was a clearly biased witness and understandably so, perhaps even legitimately so, but one didn't have to look far for that bias, the exaggeration was simple. The simplest example would be the fact that he knows there was SACO, he seems to admit without saying so, that they were talking political issues, but he calls them a gangster. With all due respect, I cannot belabour that the matter any further, but submit with all due respect, even to himself, that he was clearly a biased witness.

Now when it comes to the motive for this killing, that is one of the most central questions that this Committee has to answer. Why was this poor policeman killed? I want to suggest that the simplest thing that could have been proven, even in the High Court during the criminal trial, would have been that the poor policeman was killed for simply being a policeman. That seems not to have been the evidence that came through, there was simply a suggestion that this is possibly one of the motives. Mr Manana himself, it is clear from his evidence that he cannot say that this was in fact the motive ...(intervention)

ADV DE JAGER: But the applicants deny that.

MR MOTLOUNG: The applicants? I don't understand ...

ADV DE JAGER: The applicants deny that they killed him because he was a policeman. On their own evidence.

MR MOTLOUNG: Mr de Jager, that's precisely the point I'm making. I'm saying I agree with that statement, that he was not killed because he's a policeman.

ADV DE JAGER: Right, let's accept that. Why was he killed in fact?

MR MOTLOUNG: Mr de Jager, with all due respect, can I gravitate towards that?

ADV DE JAGER: Ja, okay.

MR MOTLOUNG: Yes.

And it seems also that everybody else except the applicants themselves, cannot give the motive for this killing.

CHAIRPERSON: We didn't ask - I'm sorry, Mr Motloung, we didn't ask Jabulani Makhanye about his educational background, we know what Joseph said, but it is fair to assume that he was likewise not highly scholastically educated? Academically educated?

MR MOTLOUNG: Mr Chairman, unfortunately I didn't canvass the point. Can I simply ask him now?

CHAIRPERSON: Yes, why don't you do that, it might be relevant.

MR MOTLOUNG: Thank you, Mr Chairman. He says he went up to standard seven.

CHAIRPERSON: Yes, very well. Yes, you can carry on.

MR MOTLOUNG: Thank you.

Now the applicants themselves submit that the motive was political. And I submit with all due respect, that in fact there's nothing else that the evidence would suggest, except a political motive. And I propose to hold forward here an example of a matter that one has recently dealt with, where some PAC cadres involving even a Sectional Commander, went about in a hospital trying to rescue one of their colleagues. It was not their programme that when they get to the hospital they intend to the policeman that they find there. As a matter of fact, the evidence that was presented showed that in the process they warned some of them that they must keep still, which happened, but in the process as they were cutting him, or unshackling him from the bed where he was some policeman walked in unexpectedly and at the spur of the moment, in the panic of the moment, he was shot and shot dead. Now the question is, what was the political motive of killing him, was it political in the sense that there is a political programme which has as its core the killing of that policeman. That is not the case. The fact of the matter is that if that example or analogy is to be applied to the circumstances of this case, the deceased was approached, not for any reason, but for a political reason. There was this political problem which found expression in two forms. Firstly, by way of a consumer boycott of the white businesses in town and secondly, where the comrades themselves were enforcing some measure of security at the tavern. And it remains unchallenged and uncontradicted that before the policemen could be made to walk out of the township they used to do this security check at the tavern. There's no evidence to countenance that.

Now they were doing these two political programmes and it is abundantly clear, I would submit with respect, that the only reason why the deceased was approached was his lack of co-operation with these political programmes. And it was in that spur of the moment when he was confronted by his lack of co-operation, that he decided to shoot.

ADV DE JAGER: What about the argument with the man from Newcastle? Should we reject that?

MR MOTLOUNG: Thank you learned Commissioner. As far as that particular aspect is concerned, I would submit that if one looks at the bundle before us and one has a look at the affidavits, if anything they seem to demonstrate to me that there could not have been a conspiracy to draw these affidavits in such a manner that the two applicants would concoct a perfect puzzle that fits handsomely together. In fact, when Joseph was asked about that argument he consistently stated that he formed the opinion when he saw this man, the deceased I'm sorry, pointing the firearm in the direction of this man from Newcastle, he formed the opinion there was an argument.

And by argument, Mr de Jager, I would ask you to look at some of the words used like a Court would look them, that sometimes you have to go behind the words to look at the exact meaning and not take their face value or grammatical meaning. I would suggest that within the context in which that word "argument" has been used - and let's remember an interpreter was being used here, it clearly shows some form of disagreement, it does not necessarily mean that he heard people arguing before.

And if one listens to his evidence, it becomes more clear that he saw - in fact one thing that he so clearly stated all along, is that he heard a gunshot going off and the next thing he saw this, he formed his own opinion. And as it would happen in a perfect Court situation, I would suggest that that is merely a question of people observing the same incident from different perspectives, different angles.

ADV DE JAGER: Ja, but then it went on, and they asked him "But why did you shoot this man?". And then he answered them, I won't repeat what he said, it's written down there, and he threatened to shoot all of them.

MR MOTLOUNG: In fact with all due respect, on that particular it seems before this Committee, the only evidence before this Committee is that he in fact did not respond. I think ...(intervention)

ADV DE JAGER: No, but that's his own affidavit, one of the applicants' affidavit.

CHAIRPERSON: Is the testimony of Jabulani, who was directly involved with the deceased from the very word go, is his evidence not more reliable about what happened prior to the shooting taking place? Because it seems as if Joseph's attention was attracted by the gunshot, that's what seemed to have attracted his attention. But at that stage, we know on the version of Jabulani, there had already been an interaction between himself and the deceased. Now in respect of that period, prior to the gunshot, is Jabulani's version not more reliable, because he's the one who is directly involved there, Joseph seemed to have been focusing only after he heard the gunshot?

MR MOTLOUNG: Mr Chairman, in fact that would be my submission, that the evidence of Jabulani should be more reliable regarding the initial steps of what happened in this whole altercation.

And one other thing, Mr de Jager, just to step off the question that you, I think ...(indistinct) really posed to me. If one looks for example - is it page 4 that Joseph was referred to? Yes right at the bottom it's stated:

"We wanted to revenge the shooting of Nlangamandla (one of our brothers)"

It would be my submission that is one reads even some of those words like "revenge" and "one of our brothers", they can only assume their proper meaning if they are read within the context of the whole application by the applicants, because we know for starters that for example he was not one of their brothers, that "brother" had a different meaning. And if one talks about the revenge, the truth of the matter is here ...(intervention)

ADV DE JAGER: He was one of the comrades.

MR MOTLOUNG: Yes.

ADV DE JAGER: He was one of the political brothers.

MR MOTLOUNG: It is true. I'm merely demonstrating the point that some of the words that we find there have to be interpreted cautiously, they do not ...(indistinct) their ordinary every day meaning.

CHAIRPERSON: And then also it seems as if there is a further, Joseph Makhanye has submitted two applications, There's a later one as well, which seems to be dated just shortly after this one that you're referred to, and it deals with the matter in a slightly different kind of a light really. There's no reference to revenge or anything like that, it gives the more broad sort of background and so on.

MR MOTLOUNG: Mr Chairman, I must confess that I'm not aware of the further application that is being referred to.

MS LOCKHAT: Page 9.

CHAIRPERSON: Ja, I think it starts on page 9 and then it carries on. But in any case, it doesn't look as if he's completed any of these things himself, it must have been somebody who has been completing this on his behalf.

MR MOTLOUNG: That is correct, Mr Chairman.

Mr Chairman, I cannot help but really submit with respect, that at the bottom of this whole thing it has shocked everybody, including Mr Manana himself, the father of the deceased, it is clear that no matter how we colour it his some was being confronted about his lack of co-operation regarding a certain political problem that was on the go. And I would therefore submit with respect, that as far as the political motive is concerned that has been proven by the applicants. And as far as another related matter is concerned, or question, Jabulani in particular has been asked, I remember by the learned Committee Member, Mr de Jager, as to what in particular, what wrong is it that he says he did for him to ask for amnesty because according to his evidence he merely held the hand. I can only submit with respect, that the question of Jabulani's criminal liability is a matter of law, based on a factual situation, it is not for him to decide whether he's was criminally liable or not. I'm sure as lawyers we are aware of the principle of dolus eventualis, where in the particular circumstances of this case it is clear that during the attack, at least at its initial stages, my client was involved in the altercation, he held onto the hand of the deceased, he realised at some point that there were people who were busy attacking the deceased from behind and he never let go and he realised that the way he was holding onto the deceased he was disabling him to turn on the people who were attacking from the back an he answered clearly that he realised that those people were posing more of a danger to the deceased than himself. In that sense I'm sure there would have been no hesitation in our law to find that he was criminally liable for the killing that took place on that particular day.

CHAIRPERSON: Possibly on common purpose.

MR MOTLOUNG: As it pleases, Mr Chairman.

I would therefore submit with respect, that my client, Jabulani has clearly committed an act, it was propelled by a political motive and if one was to bring in the question of proportionality the question is, under the circumstances would we say that there is an element of proportionality. I would submit with respect, there was. The deceased, there seems to be no doubt that he did fire, that he did pose danger to other people's lives and we cannot close our eyes for a single moment from the situation that should have prevailed at the time. I'm sure emotions were running high in that little dorpie or township, and here is a person whose background is that he was a police officer, others have been chased out but he has been co-operating with the township, he has asked to be allowed to stay in and that did happen.

Now what has happened just on that one single day, during the day he goes against a political programme, or at least he's perceived to be going against it, takes out a firearm, chases people around and whilst some emotion should have been running high, he commits another wrong in the views of these people. Again when they are in the tavern a simple thing of having to be searched, he is refusing. But perhaps more importantly he's not being confronted to be fought or to be killed, on the evidence before us he's being confronted to be asked about these things and perhaps bring him back, he takes out a firearm and he shoots. And unless we were to become armchair critics who are always wiser after he event, they will always be wise after the event, the question is, what should those people of Morgenzon do when this policeman has already taken out a firearm, he has already shot at a person? And it's against the background that I've tried to paint. I'm saying without condoning once single thing that happened on that day, that no matter how we put it the bottom line of it is that he was being confronted about a political problem, why are you refusing to cooperate with the township when in fact - with the community, when in fact you have made an undertaking that you will do that? That's the bottom line of this whole thing. That's why it's so difficult for anybody, including Mr Manana, to understand why his son would have been killed, particularly by these two people who were not his son's sworn enemies.

And just in conclusion, Mr Chairman, if one is to go through the whole bundle there is one common golden thread that seems not to escape one's attention, some truths have been told, some lies have been told throughout the trial, but all said and done, clearly the evidence during the High Court trial and the evidence that you have heard here, when one looks at it clearly the truth comes out shining. One cannot help but come to the conclusion that it was never the intention of Jabulani, for starters, to kill or even fight with the deceased.

And even when one talks about Joseph, why would he admit that he stabbed him, even during the trial, but only say that "I stabbed him once". It doesn't help whether he was stabbed once or four times, the fact of the matter is that it's his brother, he has just been missed, he's in the fight, he's holding the hand of this person who is trying to shoot at them, there's this background of what happened during the day and has just happened here in the tavern. It was an unfortunate, an extremely unfortunate event.

And then I would ask this Committee that to the extent that this Committee may find that there are certain unsatisfactory features, or even inconsistencies in the evidence of the two applicants, they are clearly unsophisticated persons, not only do they come from an unsophisticated type of community, they themselves are shining examples of somebody who is not sophisticated. Mr Chairman and the learned Commissioners, I cannot take my matter any further, unless there is a particular matter that you wish to hear me on.

CHAIRPERSON: Yes, thank you, Mr Motloung. Mr Nyawuza?

MR NYAWUZA IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, my reasons for opposing this application are based on the premise that one of the corner stones of the Act that we hear about is that -

"the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of conflicts of the past during the said period"

The main question that we as people who are here to talk about this is to ask ourselves as to whether the two applicants have made full disclosure.

I would humbly wish to take the Honourable Chairperson and the learned Commissioners just briefly through Jabulani's testimony. His testimony is that the deceased bought alcohol, put it on the table, left for the toilet and he approached him, he stood there, asked him about that, he drew a firearm without any provocation and fired a shot that incidentally hit a certain Nlangamandla.

We are here faced with a situation where the guy who speaks to my deceased client, was standing right in front of a trained police officer, who was trained in the handling of a firearm under any circumstances, who could have made a simple shot as he stated that there were no people there. The firearm - he could have shot him had he intended to shoot him.

The version that was presented during the trial was more-or-less that of Jabulani, but it went a step further, that Jabulani held my client from behind, he held his arms like this so that the other guys can shoot him. If that testimony was brought ...(intervention)

ADV DE JAGER: The other guys could stab him.

MR NYAWUZA: Yes, Chairperson.

... if that testimony had been brought before this Court, I wouldn't have had any problem with that, I would have said that is realistic. But what we are told here is not. He drew a firearm, about four shots were fired and the only one that injured somebody was the one that hit Nlangamandla. And from the trial record we have an injury that was sustained by the deceased to the foot, which I believe emanated from the scuffle that Jabulani and the deceased had. That we were not referred to, we were just told that firearms went - shots went out. We, myself and the victims would have appreciated had Jabulani come before this Court and said yes, I held him from behind for the other guys to shoot him. That is full disclosure. But up until this present day he's still denying that he took part in his killing, he held his arm.

Mr Chairman and the Honourable learned Commissioners, you will realise that we're here talking about somebody, if we take the version of applicant 1 and 2 into consideration, who had an altercation with these people during the day, if that is to be believed, and above all he comes to a place where he knows they'll be in full force, there will be more of them than they were during the day, walks into a tavern and he does what he did. Now he should have known that if I got there, those people are going to kill me.

My learned friend has referred to leisure, that you know the fact that we're here being referred, the whole incident happened at a tavern, might have emanated from the fact that Morgenzon is a small area and these people went there to have leisure. That is not what they told this Commission, they told this Commission that they went there to search people who entered that place.

We all know that when Joseph approached the deceased he had a knife in his possession and at all material times he had the knife because his version is he had searched somebody and had found the knife in that person's possession. The knife, according to the trial document, was found in his trousers at home when he was arrested. So are we still saying this was not his knife?

ADV DE JAGER: And at the trial at the end, it was common cause that it was his knife.

MR NYAWUZA: Exactly, he made a statement to that effect.

The applicants deny any - they deny that they killed the deceased because he was a police officer, what they're saying is they killed him because he did not adhere to their policies.

This Committee knows fully well that this thing happened during the day, when my client the deceased, threatened to shoot them. That cannot be disputed in this hearing today because you don't have any person who can come before this hearing and say that did not happen, my client is deceased, he cannot come here and dispute that. And like I'm saying, he wouldn't have gone there had he threatened to shoot them during the day, he would have known that they would attack him.

As regards the unsophistication of the whole thing, my learned Chairperson and the learned Commissioners know fully well that we deal on a daily basis with statements that are made to police officers in our Courts, where most of the people that we represent as lawyers, haven't gone that far with education and the contents of the said affidavits are always taken into cognisance, if there's inconsistencies in the statement that you made to the police and the statement that you make in Court, that is taken into cognisance.

For the applicants before this hearing to pick on the statements that favour them, that they had made to the police and say no, this one we take out and say that one I know of, my humble submission is, because they know it favours their case. It's common cause that there was this SACO and it's common cause as we've gone through the affidavit of one their leaders who said at no stage did they give any order that people should be killed. They went beyond that, they killed a person and the person was not killed during the day when he is alleged to have shot at, to have wielded a firearm at them and they ran away, during the cause of the struggle. These guys are seated in a tavern, they are drinking, all of a sudden without any provocation from anybody the deceased draws a firearm and fires a shot. How possible is that?

Jabulani came before this hearing and said "I held his arm until the firearm fell to the ground" and when the firearm fell to the ground he ran away. That is also unrealistic. If I fight with somebody for a firearm my life is in danger and that is what he said and we fully know that adrenaline rushes to the head, I'll get agitated and as soon as the firearm falls the ground I'll kick that person, I'll do whatever I can to get even with that person.

Jabulani still denies up to this present day, that he did anything to the deceased. There was testimony in the trial Court that he was jumping on the face of the deceased, he was kicking the deceased on the head. He doesn't bring that before this hearing. Are we still saying he has fully disclosed before this hearing, of what he has done? Things have been picked. They are saying - we don't deny the fact that there was a boycott, and they favour my client's version as regards his co-operation with them. Only one incident on that particular day led to the death of my deceased client, that of being searched. How far true that is, nobody is here to give testimony regarding that.

It is my humble submission that I say, my client was a trained police officer to handle a firearm, he could have shot Jabulani.

Further, if we hypothetically say look, he refused to give them his firearm, he is a police officer, that firearm is not his, it belongs to the Force. The rules of handling a firearm are that you only give your firearm to somebody who has - you can't even give your firearm to somebody who has a firearm licence because it's your firearm, it's registered in your name. It forms part of one of the negligences when it comes to you giving somebody else a firearm. He might have refused and said why do I have to give you my firearm, when you, Joseph, have a knife in your pocket. Because they said they searched people and sat with the weapons which they had confiscated from people until the tavern is closed. When was the tavern closed? Was the tavern closed at 2 o'clock in the morning, so that they should be in a better position to attack people than other people? Is there a political objective here?

I asked them as to what the killing of my client did for their organisation as SACO, and both said "nothing". Do we still have an objective? Because if it had done good, if it had done good for their political organisation I would say yes, I would agree that their actions fell within the ambit of the policies of SACO then.

The other factor that we're faced herewith is that ...(intervention)

ADV DE JAGER: On this point. It may be that they didn't actually achieve something, but is there any evidence that they wanted to achieve something?

MR NYAWUZA: Yes. The applicants before this hearing said they wanted to achieve a one door for all in the white businesses.

ADV DE JAGER: Yes, but by the killing.

MR NYAWUZA: No, by the killing it happened on the spur of the moment, as my learned friend said. Because both deny that they intended to kill him but the mere fact that 10 people are attacking somebody and the Joseph stands up from where he was seated, draws out a knife - he's testified that he saw people hitting him with bottles, he goes straight up to him and stabs him. Who knows that he didn't stab him once, he stabbed him more times, more than once, who knows that? Nobody can come here and say he stabbed him more than one time.

CHAIRPERSON: But is there any other reason why this happened, why the deceased was attacked? I mean there's no suggestion of any bad blood, there's no suggestion of any other ...(intervention)

MR NYAWUZA: I'm getting a bad feedback.

CHAIRPERSON: ... any other possible motive that had nothing to do with this political situation, where the deceased is now perceived to be challenging and even undermining the authority and the political struggle which was clearly taking place in the township for political agemony. We know what the political situation was in those years and this fits almost to a tee, into what was happening in many townships across the country where some or other community organisation that is affiliated to the ANC, would expel any structures that are perceived to be supporting the status quo at that point, the police, the community councillors, out of the township. It goes with a consumer boycott, which was the trend in virtually most of these uprisings. The deceased lives in the township when his colleagues had already been expelled there, and then suddenly this thing happened. Is there any conceivable reason why this eventually happened, except that it is associated with this political situation there?

MR NYAWUZA: I would wish to respond thereto. The deceased went to a tavern, if I were to take leisure as told before this hearing by my learned friend, he went to have leisure there, he sat with his friends to afar, he was not approached there, he was only approached when he went to the toilet, when at no stage any altercation happened between the two. So whatever was spoken between the deceased and Jabulani is not known to this hearing and we can't dispute what Jabulani is saying to use because we were not there. But for the deceased to walk into a tavern, sit down and drink, a few minutes thereafter on being approached by Jabulani, draw out his firearm and fire at Jabulani, is inconceivable without any provocation. Why didn't he shoot at Jabulani when he walked into the tavern?

We don't deny the fact that there was a boycott, but let us not use the political scenario then ...(intervention)

CHAIRPERSON: But you see, that's the difficulty, Mr Nyawuza. Why did all these comrades attack this one person? I mean it was easy to have disarmed him under the circumstances, they could have just taken off his firearm or whatever if he was still part of their in-group, part of their political circle, but it smacks of that, it smacks of a situation where he had now clearly distanced himself from the struggle that these comrades were involved in and that is the reason why all of them attacked him. It doesn't seem to have - he could have had an argument with Jabulani, I hear what you say, they could have had a disagreement and he could have swore at him or this one could have said something about his girlfriend or whatever, you know it could have been a fight in a tavern, they had a few beers, but it doesn't look on the whole, and we must take a holistic view of this matter, it doesn't look like it's one of those flare-ups after people had some beers and they fight in a bar.

MR NYAWUZA: Ja, my learned judge, do you know what would happen is the testimony that was given by both applicants was that they went to this place to discuss the searching and the keeping of safety at this tavern specifically. What beats me is how can about 60 people - he's referred to 100 people in his affidavit, about 100 people can go to a tavern and discuss the searching? How about 100 people can work at a tavern that, according to the testimony of one of the applicants, is about a metre, that is what he said, from there up to here, a 100 people working to search people there. So we see it has some political connotations, I don't deny the fact that it's got political connotations, but they go as far as during the day. Had they wanted to speak to him, according to the testimony here, to the trial record, he was drunk at some stage, this they could have done the following day if they said they had the relationship that they're this hearing about.

If they had a good relationship, they could have approached him the following day and said man we - like Jabulani was giving directions to his alleged comrades, he would have decided look I'm going to approach him when he's sober, ask him about the whole thing, not ask him at a tavern. Had he not pitched up at the tavern, would he have been killed? No, he wouldn't. There's no testimony that says we would have attacked him the following day. This guy is attacked because a shot went off, and how the shot went off beats me.

I humbly submit before this hearing that why my client fired a shot that hit Nlangamandla, he was being attacked, he was trying to get hold of his firearm, his hands were held from behind and when he ultimately got to reach the firearm, he had stab wounds and he was just shooting indiscriminately to ...(intervention)

CHAIRPERSON: No, I hear all of that, Mr Nyawuza. You see on the nitty gritty, on the facts and on the circumstances you can argue, there are many, many arguments that you can raise and you can raise many question marks, but the big question that we have to grapple with is, is there anything before us that divorces this incident so clearly, it severs the tie so clearly between this incident and the political situation there, that we can conclude that the applicants have not made out a case that this was associated with a political objective. And that is the big question really. The nitty gritty, the facts, whether they stabbed once or twice or whatever happened, those are things that can be argued, but the big question is the one that we must really look at. And that is why I'm asking you, is there anything before us that severs the tie completely between the political situation and this incident, so that we can conclude that this is not at all associated with a political objective?

MR NYAWUZA: Yes, I would wish to respond to that, Chairperson. The situation that we're faced herewith is the death of this chap. Where did he die? At a tavern. The same question that I asked to the applicants comes to the fore, was it part of police officers' duties to guard the taverns? The answer is no. Were they as the comrades, there to guard the taverns or was guarding of the taverns, did it fall within the political objective of Morgenzon? No, it's not, not everybody goes to the tavern. Who does it benefit? Who does the search into the tavern benefit? Does it benefit the community? No, it doesn't, it benefits the owner of the tavern and not the community. So I would vehemently disagree that it is something that was politically motivated. The searching into a tavern does not have anything to do with the community.

ADV DE JAGER: But sometimes in a tavern or in a bar people would argue with each other about politics.

MR NYAWUZA: I agree with that.

ADV DE JAGER: And suppose there was an argument about politics and they got cross with each other and started a fight, whoever stated it wouldn't matter, but they started grabbing at each other and in the end he was stabbed and somebody shot, wouldn't it then be associated with politics?

MR NYAWUZA: Then in the scenario that we're faced with, it would have favoured the applicants because they searched the people and held the arms to themselves.

ADV DE JAGER: Yes.

MR NYAWUZA: If an argument ensued regarding politics they would be in a better position to attack people than anybody else.

ADV DE JAGER: Ja, but okay, now it's also a fact that he still had his gun, that's not denied. So one party had a gun and the other one had 20 knives. So it's not a matter of whether you've got weapons or not, it's a question of whether on the evidence, wasn't there an argument about politics?

MR NYAWUZA: The testimony given before this hearing is that there was no ...

ADV DE JAGER: Well there are two stories actually. The one - I went up and I confronted him with a political matter. The other is - he was in an argument with a bloke from Newcastle, a different town and they had an argument and he took out his weapon and he wanted to shoot that man, missed him and accidentally struck one of the comrades. That in - all the others became angry about it and they retaliated and they in the end killed him. So we've got two possible stories.

MR NYAWUZA: I agree with that. We're faced with a situation like I've said initially that there's some parts of the political objectives that are being drawn into the whole thing just to help the applicants' case. The fact that a certain guy from Newcastle was missed and Nlangamandla was shot in the shoulder, the guy Joseph states clearly in his application, to which I referred him, that they stood up to revenge. Were they revenging for political reasons or were they revenging for personal gain or ill will? That is the question that we unfortunately cannot come to. They might have been revenging because he is their friend and not on a political objective matter.

CHAIRPERSON: Have you got any further submissions, Mr Nyawuza?

MR NYAWUZA: No, thank you, that's my submissions.

CHAIRPERSON: Thank you. Ms Lockhat, any submissions?

MS LOCKHAT: No, thank you Chairperson. I think my learned colleagues have addressed the issue, thank you.

CHAIRPERSON: Thank you. Mr Motloung, is there anything else that you wanted to add?

MR MOTLOUNG: I have nothing else to add, Mr Chairman, thank you.

CHAIRPERSON: Thank you. Yes, that brings us to the end of the formal part of these applications. The Panel will consider the matter and will formulate a decision and we will notify the parties as soon as the decision is available. So under those circumstances we will reserve the decision in the matter.

We thank you both of you, Mr Motloung and Mr Nyawuza, for your assistance. Thank you very much, you're excused if you want to be excused. Thank you.