CHAIRPERSON: For the record we will now be hearing the matter of August Mkulu Gumede, Amnesty Reference Number AM7007/97. Mr Koopedi will you just put yourself on record for the applicant?
MR KOOPEDI: My name is Brian Koopedi. I appear for the applicant in this matter.
CHAIRPERSON: Thank you, Mr Koopedi. And then the Leader of Evidence?
MS THABETHE: Thank you Mr Chair, I'm Miss Thabile Thabethe, the Evidence Leader for the TRC.
CHAIRPERSON: Thank you.
MS THABETHE: But I would like to put on record that I am representing the victims in this matter.
CHAIRPERSON: Yes, thank you. Yes, Mr Koopedi is there anything you want to put on record or do you want your client to be sworn in?
MR KOOPEDI: Yes, as the Chair pleases. Chairperson, may I briefly express my gratitude and indebtedness to my esteemed
colleagues and of course the Honourable Committee for letting us jump in and do this matter. Chairperson, the applicant is here and is ready to be sworn in.
CHAIRPERSON: That's fine.
AUGUSTUS MKULU GUMEDE: (sworn states)
CHAIRPERSON: Yes Mr Koopedi.
MR KOOPEDI: Thank you Chairperson. We will proceed with the leading of the evidence.
EXAMINATION BY MR KOOPEDI: Mr Gumede is it correct that you are an applicant in this matter and is it also correct that this is an application for the killing of Mr Msimango during 1993?
MR GUMEDE: That is correct.
MR KOOPEDI: Now we've had an indication that this killing occurred on the 26th of September 1993, when in your application you refer to early 1993, would it be correct to say that this incident occurred on the 26th of September 1993?
MR GUMEDE: I cannot specify the date certainly but I do not remember what date it was.
MR KOOPEDI: I will refer you to a statement on page 8 of the bundle, Chairperson. The statement you are currently looking at. Did you read the statement?
MR GUMEDE: Yes I did.
MR KOOPEDI: Can you confirm the contents thereof?
MR GUMEDE: Yes.
MR KOOPEDI: And finally, was this statement made by you?
MR GUMEDE: Yes, that is correct.
MR KOOPEDI: Now, there is a statement which you were shown earlier on by a victim, that the person who was killed was not a member of the IFP as you have alleged. Do you have any comment towards that?
MR GUMEDE: Please repeat that question.
MR KOOPEDI: There is a statement by the victim that the deceased Mr Msimango was not a member of the IFP as you have stated in your application. Now do you have any comment towards that statement?
MR GUMEDE: Yes, what I can state is I committed this act because I had received orders from someone who was certain that the deceased was an IFP member.
MR KOOPEDI: Okay. Now this deed that you did or participated in, was there any political objective that you sought to achieve?
MR GUMEDE: Yes, it happened during the beginning of the violence in Thokoza therefore my actions were committed in a time of war.
MR KOOPEDI: Were you, did you receive any personal gain? Were you paid or anything?
MR GUMEDE: No, I did not gain anything.
MR KOOPEDI: Now in terms of what you've just told this Honourable Committee and what you have disclosed both in your application form and your statement, do you think that you have fully disclosed all the relevant facts to this Honourable Committee?
MR GUMEDE: That is correct, I have disclosed everything that I know.
MR KOOPEDI: Chairperson, that will be the applicant's application.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Thank you Mr Koopedi. Mr Gumede, who is the person that gave you the orders?
MR GUMEDE: At that time, the Commander of our section was Sam Makoba, he was the person who issued the order.
CHAIRPERSON: What section were you part of?
MR GUMEDE: It was Mandela Section in Thokoza but it was commonly known as ...(indistinct)
CHAIRPERSON: And what unit were you part of?
MR GUMEDE: I was a member of the Self Defence Unit.
CHAIRPERSON: And were you affiliated to any political organisation and if so, which one?
MR GUMEDE: The ANC.
CHAIRPERSON: You say it was at the commencement of the violence. Was that the violence involving the residents of Thokoza and the occupants of the hostels in the area?
MR GUMEDE: Yes, it was at the beginning of the violence. That is when the hostel dwellers would chase the residents out of their homes so that their organisation is the permanent one in the area.
CHAIRPERSON: What was their organisation?
MR GUMEDE: It was the IFP.
CHAIRPERSON: Yes, Ms Thabethe, questions?
MS THABETHE: Thank you Mr Chair.
CROSS-EXAMINATION BY MS THABETHE: Mr Gumede at the time of the commission of the offence, were you staying at A49 in Thokoza?
MR GUMEDE: I was residing at home, but at the time I did not normally spend my evenings there because we used to patrol the area, but my home was situated there.
MS THABETHE: And the deceased and his family were staying at A52 at Mazimogo Street, is that correct?
MR GUMEDE: That is correct.
MS THABETHE: So would I be correct if I say you were separated by three houses in terms of the numbering that appears?
MR GUMEDE: If I'm not mistaken there are two houses that separate us.
MS THABETHE: And where did you Commander Sam Makoba stay?
MR GUMEDE: He resided in our section but I do not remember the street names, but it is one of those houses at the very periphery of our section.
MS THABETHE: So would I be correct if I say, you were much more closer to the deceased's house than Sam Makoba was?
MR GUMEDE: That is correct.
MS THABETHE: My instructions are that the Msimango house, or the Msimango home was a house that sold beers, is that correct?
MR GUMEDE: Yes, that is so.
MS THABETHE: Would I also be correct to say that there were people coming in and out as a result of buying, purchasing the beer?
MR GUMEDE: I would not comment on that because I was away at work for most of the time during the day.
MS THABETHE: But you would agree with me that it's common cause if they were selling liquor, there would be people coming in and out to buy the liquor, that would be common cause, wouldn't you say?
MR GUMEDE: Yes, I would agree with you.
MS THABETHE: As a person who stayed two houses away from the Msimango family, did you know Mr Msimango very well, the deceased?
MR GUMEDE: What do you mean when you say very well? Are you referring to knowing him as a neighbour or knowing him on a personal level.
MS THABETHE: Whichever you knew him. Did you know him as a neighbour, did you know him very well?
MR GUMEDE: I knew him as one of the elders in the area.
MS THABETHE: My instructions are that he was a very friendly and sociable man and as a result people used to come in and out of his house and some people used to gather at his yard to play cards. Have you ever witnessed this?
MR GUMEDE: As you mentioned before that they used to sell liquor, people would go to his home to drink, but when the violence commenced most of the people did not frequent his place.
MS THABETHE: Your section in Thokoza, is it correct that it was an ANC dominated area?
MR GUMEDE: That is correct, but there were boundaries, for instance there will be a place that it is commonly known that it is a place that is dominated by IFP. Our section was quite large and it was divided into two.
MS THABETHE: My instructions are that the section that you lived in and that Mr Msimango stayed in was an ANC dominated section. Would you dispute this or what is your response to that?
MR GUMEDE: As I mentioned earlier on our section ...(indistinct) was huge. It started from around the hostel upwards but it was commonly known that there areas within the section that were dominated by the ANC and another one that was dominated by the IFP.
MS THABETHE: To bring the point much more closer home, if you check in your application on page 4, you say it's paragraph B, 10(b) page 4 of the bundle, it's the fifth line, you say
"In our area and in brackets ANC stronghold ...(blank) IFP wanted to win"
So in essence what you are saying here is that your area was an ANC stronghold, that's what I wanted to confirm.
MR GUMEDE: Yes, as I mentioned earlier on, the area was divided and our side was called Mandela Section, in an attempt to divide the area so that there demarcations that form, this point to that point is Mandela Section, but it was all under one huge section, but there was a demarcation within this section that we as the ANC resided in one section and the IFP resided on the other.
MS THABETHE: Mr Gumede, let's move on. When you were asked by my colleague, your legal representative, as to the issue of the political affiliation of the deceased, you indicated that you were merely following orders, do you remember that?
MR GUMEDE: Yes, I do remember.
MS THABETHE: In your application, you indicated that Mr Msimango was an IFP member and an IFP supporter and he used to gather, oh, that's also on page 4, paragraph (b), he used to gather and hold meetings at his house. After you go and you're inferring that he was an IFP member. My question is, what evidence did you have that the deceased was an IFP member?
MR GUMEDE: Personally I do not have firm evidence but what I do know is that the matter with regards to Mr Msimango had already been pre-discussed, that he was an IFP member.
MS THABETHE: You said, I just want to quote you in Zulu. ...(not interpreted) By whom?
MR GUMEDE: It was something that had been discussed by the Commander because during the day he is one of the people who would go around our section and they would investigate and inquire as to what was happening so during that week he called me, because I was also an operator within our section. He summoned me and informed me that Mr Msimango was an IFP member and that he had witnessed other IFP members at his home and he had suspicions that there were IFP meetings being held at that home. Even with regards to our meetings, the first meeting that we held had to be abandoned because we were attacked by IFP member, therefore it was clear that there were some moles within our section.
MS THABETHE: Can I cut you, Mr Gumede? My question was simply, what evidence did you have and from your response, would I be correct to say you personally did not have evidence, but you relied on what Mr Sam Makoba told you, is that your evidence?
MR GUMEDE: That is correct.
MS THABETHE: What I don't understand, Mr Gumede, and I would like you to clarify this form me, you stayed two houses away from the deceased and yet you say you personally had no evidence as to whether he was IFP or not and you alleged that a person who stayed far away from you, that is Sam Makoba, is the one who had evidence about your neighbour. How is that possible?
MR GUMEDE: I have already mentioned that I did not spend a lot of time in the township. I went to work in the mornings and at that time we did not normally frequent Mr Msimango's side of the section. When the violence started, we were based at Sam Makoba's side of the section.
MS THABETHE: I don't understand your explanation Mr Gumede and I put it to you that if the deceased Mr Msimango was an IFP member, you would have known about it because you stayed two houses from him. You would have had more information than Sam Makoba did. What is your response to that?
MR KOOPEDI: Chairperson, with respect, may I be allowed to object to this line of questioning? I believed the applicant has explained clearly that at a certain stage, although his home was still two houses from the deceased's home, but he was no more staying at home because of the troubled times. They hid themselves elsewhere and this Commander is the person who would, during the day and this is what he said in evidence, during the day go to the area and clearly he would be the one knowledgeable.
MS THABETHE: Can I respond Mr Chair?
CHAIRPERSON: I don't know, I mean it's a proposition that you put to the applicant.
MS THABETHE: So Mr Chair?
CHAIRPERSON: I say, it's a proposition that you put to the applicant, I don't know, perhaps he wants just to respond to it.
MS THABETHE: Mr Chair, I just want to respond to what my learned colleague has just put on record.
CHAIRPERSON: Yes.
MS THABETHE: Actually, I asked the applicant where he stayed and he said he stayed at his home but they would go out and patrol sometimes, but he emphasised the fact that he stayed at home. He never, it's not in the evidence that they used to go and hide or sleep elsewhere.
CHAIRPERSON: Yes.
MS THABETHE: Yes, I just want to correct that for the record.
CHAIRPERSON: Yes, it's neither here nor there. You put the proposition that he should have known the deceased better. I don't know, he can respond to that, I mean it's a proposition that you put to him. Did you follow, Mr Gumede? Ms Thabethe says that because you lived close by there, you should have known the deceased, Mr Msimango better, you should have known whether he was IFP or not.
MR GUMEDE: I will repeat. Firstly, even though Mr Msimango stayed near my home, I had never been to his house to inquire as to his political affiliation, because those were the matter that were not discussed. We did not trust one another as neighbours.
ADV SANDI: Sorry. Before these troubles of political violence started in this area, had you ever been to his house?
MR GUMEDE: Yes, maybe I would go there to buy a beer. I would go there and buy the liquor and return home.
ADV SANDI: Did you ever observe any indication that he was a member of the IFP?
MR GUMEDE: The IFP hostel dwellers or those who resided near the hostel, used to drink there.
ADV SANDI: Yes, but it would seem from what you've just said, everyone who wants to buy liquor would go there, even yourself, you would go there if you want to buy liquor, but you were not IFP.
MR GUMEDE: Yes, that is correct. Before the violence, there is nothing that I can put here to suggest or to confirm that he was an IFP member.
ADV SANDI: Miss Thabethe.
MS THABETHE: I want to put it to you further Mr Gumede, that it's very improbable that a person who is an IFP member, as you suggest, staying in an ANC stronghold section, would hold an IFP meeting during the day, as you alleged that your Commander advised you. What is your response to that?
MR GUMEDE: I would not be able to respond to that, but I only did what I was ordered to do and I also did it for a specific reason.
ADV BOSMAN: Mr Gumede, you did not do what you were ordered to do, you were ordered to attack the whole family.
MR GUMEDE: Please repeat that.
ADV BOSMAN: You were ordered to attack the whole family, all of the Msimango family, were you not?
MR GUMEDE: Yes, we were given an order to attack the Msimango home.
ADV BOSMAN: Did you know the other Msimango family members?
MR GUMEDE: The person who resided there at the time was Mr Msimango and his wife.
ADV BOSMAN: So is that the family you were referring to, just Mrs Msimango?
MR GUMEDE: Yes, I will say so.
ADV BOSMAN: How well did you know her?
MR GUMEDE: As an elder, I would not claim to have known her well, but I would greet her when we meet in the street and that was the extent of our relationship. We'd never held any discussions.
ADV BOSMAN: So why did you not follow the order and attack her as well? This is what I would like you to just clarify.
MR GUMEDE: The Commander, Mr Makoba, informed me that Mr Msimango is an IFP member and when I inquired about his wife, he said no, she is not a member, but because they share a house, the house should be attacked in its entirety, everyone inside the house should be attacked.
ADV BOSMAN: Did you argue with him about it?
MR GUMEDE: Yes, I did.
ADV BOSMAN: And what was his response to that?
MR GUMEDE: I argued with him on the basis that Mrs Msimango was a quiet person and we respected her, so I argued with him on the basis that she not a danger to us.
ADV BOSMAN: Did you ask him why he thought Mr Msimango was an IFP, because you didn't know?
MR GUMEDE: Yes, I did ask him as to what reason he had and he informed me that they would go out during the day to the ...(indistinct) home which we used and he said from that house, he observed IFP people going in and out of Mr Msimango's home. At that time it was difficult for IFP people to come to our section and I think that is why he became certain that he must be one of them because at that time it was not easy for them to come to our section.
ADV BOSMAN: Thank you.
MS THABETHE: Thank you. Mr Gumede, I want to refer you to your application again and I want clarity on this. You say, it's on page 4 again of the bundle, 10 (b), it's the 7th line, or the 6th line, you say, I'll paraphrase it, or let me read it as it is. You say
"Mr Msimango's house is in our area. The IFP wanted to be in our area by forcing people to join the IFP or kill them."
Who are you referring to here? Who were forcing people to join the IFP?
MR GUMEDE: I am referring to the IFP people.
MS THABETHE: Would this exclude or include Mr Msimango?
MR GUMEDE: I cannot say that once came to my home and forced us to join the IFP or that I witnessed him doing so to other people.
MS THABETHE: Thank you Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe. Has the Panel got any other questions?
ADV SANDI: No questions.
CHAIRPERSON: Mr Koopedi, re-examination?
MR KOOPEDI: Nothing in re-examination thank you Chair.
NO RE-EXAMINATION BY MR KOOPEDI
CHAIRPERSON: Yes, Mr Gumede thank you, you're excused.
WITNESS EXCUSED
MR KOOPEDI: Chairperson, there is no other witness which we wish to call and this means that this will be the entire application by this witness before you.
CHAIRPERSON: Yes, thank you. Ms Thabethe, have you got any evidence?
MS THABETHE: Mr Chair, I would call two witnesses. I'll be short. The first witness is the wife to the deceased, Mrs Didi Molefe.
CHAIRPERSON: Say again.
MS THABETHE: Mrs Didi Molefe.
CHAIRPERSON: Yes. Will Mrs Molefe come forward please?
MS THABETHE: Mr Chair, when she's sworn in, can I have an indulgence of one second, or two seconds please?
CHAIRPERSON: Yes.
MW THABETHE: Thank you.
DIDI GEORGINAH MOLEFE: (sworn states)
CHAIRPERSON: Yes, Ms Thabethe.
MS THABETHE: I'm indebted to you Mr Chair.
EXAMINATION BY MS THABETHE: Mrs Molefe, is it correct that you are the wife to the deceased, Mr Msimango?
MRS MOLEFE: That is correct.
MS THABETHE: Is it also correct that your house used to sell liquor?
MRS MOLEFE: That is correct.
MS THABETHE: Can you briefly describe to the Committee whether there was any particular group that used to come and buy liquor from your house, or anybody was welcome to come and buy liquor from your house?
MRS MOLEFE: Everyone used to be welcome in my home, it was not a specific group.
MS THABETHE: Is it also correct, Mr Molefe, that there used to be people who would gather outside your yard with the deceased?
MRS MOLEFE: Yes, they would play cards with my husband.
MS THABETHE: You have heard the applicant and I've also advised you from his application that he alleges that there were IFP meetings that used to be held in your house. Do you have any knowledge of this?
MRS MOLEFE: That is not true. There was never an IFP meeting at my home.
MS THABETHE: If there was an IFP meeting at your home, would you have known this fact?
MRS MOLEFE: Yes, I would have known because I was the woman of that house.
MS THABETHE: You have also heard the applicant saying that the deceased, your husband, was an IFP member. What is your response to that?
MRS MOLEFE: That is not true.
MS THABETHE: Why do you say so?
MRS MOLEFE: There is nothing that I know as far as I'm concerned, that indicated that he was an IFP member and he had never joined the IFP.
MS THABETHE: Do you know Sam Makoba, who the applicant has alleged to be his Commander?
MRS MOLEFE: I knew him briefly.
MS THABETHE: Did he stay near or far from your house?
MS MOLEFE: He stayed far from my home.
MS THABETHE: You've also heard the applicant saying that during, Sam Makoba says, during the day there were meetings that used to be held in your house and these meetings were IFP meetings, do you have any knowledge of this?
MRS MOLEFE: I do not know about that. I used to go to work, but my husband never explained that he held such meetings.
MS THABETHE: At the time of his death, was the deceased working?
MRS MOLEFE: No, he was unemployed.
MS THABETHE: Thank you Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you. Mr Koopedi any questions?
CROSS-EXAMINATION BY MR KOOPEDI: Just one question, Chairperson. I thought we don't have questions. I'm not sure if I heard you correctly when you said you were working. Does this mean that during the day you were not at home?
MRS MOLEFE: Yes, I was employed.
MR KOOPEDI: So the answer is, during the day you would not be at home?
MRS MOLEFE: Yes, I was at work.
MR KOOPEDI: Thank you, no further questions, Chairperson.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Thank you, Mr Koopedi. Is there anything from the Panel?
ADV SANDI: Yes, just one question. Did you have to go to work everyday? Which days of the week did you go to work?
MRS MOLEFE: I would be working on weekdays and I would normally be home on weekends.
ADV SANDI: Did you husband every express any desire to join, or to support any political organisation?
MR MOLEFE: No, he never mentioned it to me.
ADV SANDI: Thank you. Thank you Chair.
ADV BOSMAN: Mrs Molefe, do you know of any reason why the applicant would have killed your husband?
MRS MOLEFE: Please repeat that.
ADV BOSMAN: Do you know of any reason why the applicant killed your husband?
MRS MOLEFE: No, I do not.
ADV BOSMAN: Thank you Chairperson.
CHAIRPERSON: Thank you. Ms Thabethe, any re-examination?
MS THABETHE: No re-examination Mr Chair, thank you.
NO RE-EXAMINATION BY MS THABETHE
CHAIRPERSON: Mrs Molefe, thank you very much, you are excused.
WITNESS EXCUSED
MS THABETHE: I will call another last witness Mr Chair, Mrs Elizabeth Ngcobo, please.
CHAIRPERSON: Yes. Will Mrs Ngcobo come forward?
ELIZABETH SIMANGELE NGCOBO: (sworn states)
CHAIRPERSON: Ms Thabethe.
MS THABETHE: Thank you Mr Chair.
EXAMINATION BY MS THABETHE: Mrs Ngcobo, can you explain to the Committee what your relationship was to the Msimango family or what it is?
MRS NGCOBO: I was the neighbour, they were my next-door neighbours.
MS THABETHE: Maybe before I ask this question, did you know Mr Msimango very well?
MR NGCOBO: Yes, I knew him very well from my childhood and we were both employed by the same firm.
MS THABETHE: What kind of a person was Mr Msimango and what kind of a house was Msimango's home?
MRS NGCOBO: The Msimango household was well-liked. For instance, if you had a problem, you would approach him and he would assist you.
MS THABETHE: Is it correct that they used to sell liquor there?
MRS NGCOBO: That is correct.
MS THABETHE: What other activities did you observe happening there as a neighbour, if there are any?
MRS NGCOBO: People will go in and out, buying liquor or they will sit around, drink and play cards and if they were soccer matches on TV they would also gather to watch those matches.
MS THABETHE: Did you ever know the deceased to belong to any political organisation?
MRS NGCOBO: No, I did not.
MS THABETHE: Thank you Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe. Any questions Mr Koopedi?
MR KOOPEDI: No questions for this witness, thank you Chair.
NO CROSS-EXAMINATION BY MR KOOPEDI
CHAIRPERSON: Thank you. Panel?
ADV SANDI: Yes, during this conflict between the ANC and the IFP in that area, do you know about this conflict?
MRS NGCOBO: Yes, there was violence between the hostel dwellers and the ANC.
ADV SANDI: And the people, do you know if there were people coming from hostels amongst those who would visit the house of Mr Msimango, do you know if they included hostel dwellers?
MRS NGCOBO: I will just see people going in and out, I did not know whether they were hostel dwellers or not. I do not know.
ADV SANDI: When there was violence in this area, did people stop coming to the house of Mr Msimango?
MRS NGCOBO: They continued. They would go to his house because even on the day that he was killed, there were people in his home, the Zulu's occupied most of our houses.
ADV SANDI: Thank you. Thank you Chair.
ADV BOSMAN: Did you know Mr Sam Makoba?
MRS NGCOBO: Yes.
ADV BOSMAN: Did you know him to be involved with the ANC politics and structures?
MRS NGCOBO: Yes, he was a Commander of the ANC.
ADV BOSMAN: Thank you, Chairperson.
CHAIRPERSON: Thank you. Re-examination, Ms Thabethe?
MS THABETHE: No re-examination Mr Chair.
NO RE-EXAMINATION BY MS THABETHE
CHAIRPERSON: Thank you.
ADV SANDI: The applicant, Mr Gumede, was he known to you?
MRS NGCOBO: Yes, he grew in the area, I know him.
ADV SANDI: Did you know if he belonged to any political organisation?
MRS NGCOBO: I do not know, but I knew that they used to patrol the area. I think he was part of the ANC.
ADV SANDI: Are you saying he was one of the people, are you saying the applicant, Mr Gumede, the gentleman who is here today, was one of the people who used to patrol the area?
MR NGCOBO: That is so. Young men in our area used to patrol the area.
ADV SANDI: Thank you. Thank you Mr Chairman.
CHAIRPERSON: Thank you. Have you got re-examination Ms Thabethe?
MS THABETHE: No re-examination Mr Chair.
NO RE-EXAMINATION BY MS THABETHE
CHAIRPERSON: Mrs Ngcobo, thank you very much. You are excused.
WITNESS EXCUSED
CHAIRPERSON: Anything else, Ms Thabethe?
MS THABETHE: This concludes my evidence, Mr Chair.
CHAIRPERSON: Thank you. Mr Koopedi have you got any submissions on the merits of the application?
MR KOOPEDI IN ARGUMENT: A very brief one, Chairperson and Honourable Committee Members.
It is my submission Chairperson, Honourable Committee members that the applicant, who has come before you, has in the first instance complied with one of the pillars of amnesty, being a full disclosure. It is my submission that this applicant here was never arrested and therefore he was not compelled by imprisonment or any other reason to come before this Committee. My instructions are that he was compelled by the need to further reconciliation in our land and basically that is why he came forward with his application and he has therefore not hidden any fact.
The second issue, which I would briefly go into Chairperson, is the fact whether the deceased was an IFP member or not. Chairperson, the applicant has stated that his information that the deceased was IFP was gained from someone else. However, even that fact may not be material to this application. What I want to stress, Chairperson, is that there is this undisputed evidence that he was acting on an order from his Commander and perhaps to clear something on what came on earlier in this hearing, the initial order apparently was to attack the whole house, but as it can be gleaned from the application form and the statement, the applicant subsequently engaged his Commander in dialogue and to say to him why eliminate the whole house and Chairperson, I would refer you to the application form, together with the statement, where it was finally agreed that not the whole house should be attacked and someone who is an implicated person, was requested to accompany the applicant Chairperson, to go and fulfil this mission.
So what I'm stressing here, Chairperson, is that the applicant acted on orders from his Commander. And Chairperson, lastly I would want to stress also that the applicant has testified that there was no personal gain on his side and it is therefore my submission Chairperson, that this applicant before you should be granted amnesty. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Koopedi. Ms Thabethe, submissions?
MS THABETHE: Yes, Mr Chair.
MS THABETHE IN ARGUMENT: Mr Chair, it's my submission that the applicant stayed or lived two houses from the deceased. He knew him well but he has given evidence that he didn't know which organisation he belonged to. My argument on that, Mr Chair, is that it's very improbable that Sam Makoba, who stayed far away, would know the political affiliation of the deceased and the applicant, who stayed two houses away from the deceased's house would not know what political affiliation Mr Msimango belonged to. With due respect, Mr Chair, it's my argument that this is very improbable. On the question ...(intervention)
ADV BOSMAN: Ms Thabethe, given the fact that this was an ANC area, Mr Makoba was known to be an ANC Commander, would he not have been privy to information from the area about the activities going on at houses?
MS THABETHE: Yes, Madam Chair. He would have been privy to that, more especially because it has become evident that they used to patrol the area. He would have been in a position to know whether Mr Msimango belonged to IFP or ANC if at all he did belong to any political organisation.
On the question of having followed orders, my argument is that the family would still oppose the application on the basis that there was no political objective in that the basis for which the orders were given is unfounded. It is our submission the deceased was not an IFP member and you've heard two witnesses who have testified to that effect.
On the question of what the reasons might be, or the motivation for having killed Mr Msimango, we might never know the reasons and the reasons may not be clear or apparent to us or to the members of the Committee because we don't know the social interactions between neighbours in that area and I don't want to delve into that, but it is my humble submission that on the basis that the deceased was not an IFP member, the act by the applicant was not political. Thank you Mr Chair.
CHAIRPERSON: Thank you Ms Thabethe. Mr Koopedi, any reply?
MR KOOPEDI: Chairperson, I am tempted not to reply.
CHAIRPERSON: Thank you.
ADV SANDI: Sorry, if I can just ask one question. Perhaps I should have asked this question to the applicant. What was the political objective of this crime anyway?
MR KOOPEDI: If the question is directed to me, I will try and answer it by making reference to the application form. In the
application form that same question is asked in terms of the political objective. It is stated there that since Mr Msimango was perceived or was taken to be an IFP member and that the IFP was bent on taking over the area, I believe that the reason behind the operation would be to stop the IFP from taking over the area.
ADV SANDI: Yes, but there was, there's no evidence about the deceased personally, that he took part in those activities of forcing residents in that area to join the IFP.
MR KOOPEDI: That is indeed so. I seem to have followed the evidence given here today that it appears that the deceased was not a member of the IFP, but during the day he would be at home and unfortunately the victim was employed and does not know what happened during the day. The applicant says he was told by his Commander that people from the IFP would go to the area. He has explained that he wasn't there during the day, so he wouldn't know. The person who would be most knowledgeable and perhaps the best person to answer that question would have been the Commander who gave this command to this applicant.
ADV SANDI: He was being given instruction to kill his very immediate neighbour. He did not bother to find out, to try and verify these allegations.
MR KOOPEDI: If I may point out and revert to something that has been mentioned earlier, the order was to attack the entire house. If one looks at the application and the statement, apparently about 60 people had already gathered to go and attack this house. When this applicant arrived at the place where people were and was told that we're going to attack the house of the deceased, it had already been decided. When he came he sort of queried what his Commander said, not that that would matter, but his Commander listened to him and ultimately the agreement was that only the deceased should be attacked and not the entire house and I believe that is why then only two people were sent to go to this house and no more the whole group.
ADV SANDI: Thank you. Thank you Chair.
CHAIRPERSON: Are there any other submissions?
MR KOOPEDI: No other submissions Chairperson.
CHAIRPERSON: Yes, thank you. Yes that concludes the evidence in this matter. We will consider the matter and we will notify the parties as soon as the decision in the matter is available, so at this stage the decision is reserved.
MR KOOPEDI: As it pleases Chairperson.
CHAIRPERSON: Thank you Mr Koopedi for your assistance.
MS THABETHE: Sorry Mr Chair, I was hoping that I would be given an opportunity to reply. I don't know whether I'm jumping the gun.
CHAIRPERSON: Sorry?
MS THABETHE: To reply.
CHAIRPERSON: Yes, have you got anything to say?
MS THABETHE: Yes, yes Mr Chair I do, arising from the discussion that took place.
CHAIRPERSON: Yes?
MS THABETHE IN REPLY: I just wanted to outline, Mr Chair, that my learned colleague talks about the fact that the victim, Mrs Molefe, was working during the day. This was a house which was selling liquor to ...(indistinct - static interference)
people used to come in an out all the time and that wouldn't justify the fact that there would be a meeting that would be held during the day, more especially considering the fact that this was an ANC stronghold and it would be very much improbable to hold an IFP meeting during the day in an ANC stronghold.
CHAIRPERSON: Yes, this was at the commencement of the violence, remember. The violence had just commenced at this stage.
MS THABETHE: Yes, Mr Chair.
CHAIRPERSON: So it was not after the battle lines had been clearly drawn, the violence had just commenced.
MS THABETHE: My argument still remains, Mr Chair, that it would make sense for Mr, the deceased, if he was an IFP to go to an IFP stronghold to have such meetings.
CHAIRPERSON: Yes, but it just, the point that I'm making is, it had just started, this was not at the stage when the battle lines were clearly drawn in Thokoza, in the township, it had just started, so people were very much still manoeuvring, that's what I understood. This was at the commencement of the violence.
MS THABETHE: I thought that the applicant had clearly stated that there were demarcations.
CHAIRPERSON: Yes, well they were obviously in the course of trying to demarcate the areas, but this battle had just started off. Your areas would only have been established once the balance of power was clearly established in a particular area, they were still fighting very much at that time, so you know, at a later stage, assume late into that conflict which we've heard a lot about, later in that conflict when the battle lines were really very clearly drawn, there were circumscribed sections of the township that were IFP together with the hostel and the rest of the residential area was a clear ANC stronghold, then of course the battle lines are very clearly drawn, the balance of power is established, the areas have been taken over by the respective contending parties and there you have it, but at that time people were just moving, they were still moving around. There was no clear situation of balance of power in any particular area.
ADV BOSMAN: And Mrs Molefe clearly indicated that people from any, any person would be welcome in their house.
MS THABETHE: But I was referring specifically to an IFP meeting. A meeting where IFP members would hold a meeting in the deceased's house, not just playing cards, not just buying liquor, but an IFP meeting and my argument is that this would be very improbable in an ANC stronghold because even though the violence was not rife then, but there were clearly sections that, this section was ANC stronghold, this one was IFP.
CHAIRPERSON: No but I mean, if it was at the commencement of the conflict, why would the IFP pull back and not try to rather conquer the area themselves? It was just commencing. I mean you know that was a deep seated conflict, why would they give up that easily? The violence had just commenced and now they give us, well that's an ANC area, why wouldn't they try to recruit people in the area, as the applicant says here and try and establish their own presence there. I mean they were fighting for turf, they were not going to just give turf away to the ANC, they were going to try and establish the balance of power in their favour, they would have tried to establish as much of the are in their favour as possible, so why would they now chicken out at that point?
MS THABETHE: Mr Chair, they would have tried to win people over, but I'm talking specifically about the deceased. The chances are it would have been very improbable for him to risk, you know, his image. He was serving liquor, different types of people came into his house, it would have been very unlikely for him to risk that image and hold an IFP meeting.
ADV SANDI: Yes, it can be improbable but that does not mean that it is not possible.
MS THABETHE: Yes, yes for sure.
ADV SANDI: It is possible.
MS THABETHE: Yes.
ADV SANDI: And none of the two witnesses you called can testify as to what had happened inside the house whilst the deceased was there and these people who were visiting. None of them can say what was happening there.
MS THABETHE: Except to say that Mrs Molefe did indicate that there were no meetings held at her house except for people who came to visit and they would sit outside the yard and play cards.
CHAIRPERSON: No but she couldn't say what was going on during the day, she was working, she was asked specifically and I think that's the point that my colleague is making. It hasn't excluded the possibility.
MS THABETHE: Yes, I would say it's very much unlikely that.
CHAIRPERSON: Yes, no we've got that submission of yours, yes, we understand.
MS THABETHE: Given the issues that I've highlighted.
CHAIRPERSON: Yes.
ADV SANDI: So you've noticed that the second witness that you called Mrs Ngcobo confirmed that the applicant was in fact one of those people who patrolled the streets, he was involved in trying to combat this violence.
CHAIRPERSON: There doesn't appear to be any bad blood between them, there seems to be no other reason that was suggested for the applicant to be involved in an attack upon Mr Msimango.
MS THABETHE: Socially we don't know what took place Mr Chair. Unfortunately we are confined to the facts in front of us yes. And another issue, Mr Chair, that I wanted to highlight is the fact that the applicant indicated that he made an opinion with regard to Mrs Molefe's political affiliation, hence he did not attack the whole family and my submission is that, or my argument is that he could have done the same as far as the deceased is concerned, investigate or make an opinion as to whether he really was an IFP member or not.
CHAIRPERSON: Yes, he says that when they debated this matter, the Commander himself confirmed that Mrs Molefe was not affiliated. The husband was, but she was not, she was not affiliated and on that basis the applicant argued the case with them and said "But why must you wipe out the whole family, if it's only the one person that seems to be on the other camp".
MS THABETHE: Thank you Mr Chair, I have no further questions, I have no further submissions.
CHAIRPERSON: Thank you Ms Thabethe. Yes, we will reserve the decision in this matter and we will notify you as soon as that is available. Once again thank you Mr Koopedi and Ms Thabethe. Thank you for your assistance.
MR KOOPEDI: We thank you too, Chairperson.
MS THABETHE: As the Committee pleases.
CHAIRPERSON: Yes, we excuse you. Can we get back to the matter of Thanjekwayo and others?
MR KOOPEDI: May we be excused formally, Chairperson?
CHAIRPERSON: Yes, of course.
MR KOOPEDI: Thank you.
CHAIRPERSON: Yes, thank you.
DISCUSSION BETWEEN CHAIRPERSON AND ANOTHER RE APPLICANTS IN NEXT MATTER
MR KOOPEDI: Chairperson I seem to know where they are and seem to know where the problem is. If I can enlighten? Apparently there are about 10 would be applicants in that hall, when we have four applications and apparently all of them say they have made applications and those applications were forwarded to the TRC and apparently Miss Patience Molekane, from our office, the ANC office, recognises them and also believes that these applications were made and she thinks that she has copies at the office. So I think the delay is being caused solely by that fact.
CHAIRPERSON: By this problem?
MR KOOPEDI: Yes.
CHAIRPERSON: Alright. Thank you Mr Koopedi, but I see that it's taking shape at this stage.
MS VILAKAZI: Honourable Chair, may I put this to the Committee that I have received a message that I have a pressing matter to attend to, not later than, I have to be in Pretoria not later than half past four. That being the case and taking cognisance of the fact that the victim's family or the next of kin have withheld the right to cross-examination, I could listen to the recordings tomorrow.
CHAIRPERSON: Sorry, if you are happy with that arrangement, then there's no problem with that.
MS VILAKAZI: Thank you.
CHAIRPERSON: Yes. Would you want to be excused at this stage, or what?
MS VILAKAZI: That is my request, Honourable Chair, looking at the time.
CHAIRPERSON: Yes. Well if you are satisfied that you are able to deal with the matter on the basis that you suggested, then of course we don't have any difficulty. Then you can be excused.
MS VILAKAZI: I'm indebted to you.
CHAIRPERSON: Thank you very much. Mr Honnorat you said that the first applicant would be Mr Zondo?
MR HONNORAT: We've got a problem, perhaps I must take a second to perhaps elaborate on that, in the sense that the whole thing really started with Mr Tshabalala, who's status as applicant in this matter is in dispute at the present moment. There are efforts being made now to obtain the copies of the application made by Mr Tshabalala as well as Mr Fakude who was accused number 4 in court, who apparently hasn't made an application for amnesty and the whole problem is a problem of the sequence of, the logical sequence, I wouldn't like the house to get totally out of step with the chronological sequence of events. Mr Tshabalala is really the one who comes first and the kind of evidential edifice would be built on the wrong foundations if we put him later, at the end, so that is the problem that the applicants are experiencing at the moment, that the proper situation would be for Mr Tshabalala to put his evidence first, followed by Mr Zondo and perhaps my attorney can elaborate on that further and in this sense the applicants would require the matter of Tshabalala, his status as applicant, to be resolved as the first thing.
CHAIRPERSON: No, well if we don't have his application before us then there's no way that we're going to be able to resolve his matter and therefore we want to start with the application. If it has to be resolved, we must resolve it at some stage, but in the meantime you know, we have to get going because we're also told by the Correctional Services that they have to get your clients back to prison by half past four, or in any case legally at half past four, so we'll attempt to do as much as we can with that time which is now available. We'll have to live with the sequence out of order at this stage, we'll have to just compensate for that at some later stage, but until Mr Tshabalala's position is clearer in terms of the documentation and so on, which hasn't arrived yet, I think we'll have to proceed with the others who are actually before us.
MR HONNORAT: Yes, then Mr Chairman, can we then start with applicant number 4, Mr Peter Shabangu?
