CHAIRPERSON: What language does Mr Chidi wish to speak, Mr Moloto?
MR MOLOTO: Let me find out. I am informed he is speaking Sipedi, Mr Chairman.
INTERPRETER: I beg your pardon Honourable Chairperson, unfortunately we don't have a Sipedi interpreter with us here.
MR CHIDI: Sotho, it will be okay.
CHAIRPERSON: Do we have a Sotho interpreter?
INTERPRETER: Yes, we do Chairperson, thank you.
MR CHIDI: I will speak Sotho.
CHAIRPERSON: Can you give us your full names?
MR CHIDI: I am Maphuthi Joseph Chidi.
MAPHUTHI JOSEPH CHIDI: (sworn states)
CHAIRPERSON: Please be seated. You may proceed, Mr Moloto.
EXAMINATION BY MR MOLOTO: Thank you Honourable Chairperson. I have been instructed to read this statement before this Honourable Committee as a point of departure, that is Joseph Chidi's statement of admissions. I would like to read it Mr Chairperson. It reads like this ...
MS THABETHE: Sorry, Mr Chairperson, may I intervene please.
CHAIRPERSON: Okay, please do.
MS THABETHE: Can we make copies quickly, would it be better for the Committee if we do so, or if the Committee is comfortable with him reading the statement?
CHAIRPERSON: How long is it, Mr Moloto?
MR MOLOTO: Two pages, Mr Chairperson, two pages.
CHAIRPERSON: Would it suffice if we made copies, just adjourn shortly, make copies, and probably let him confirm what is written down there?
MR MOLOTO: That is correct Chairperson.
JUDGE DE JAGER: Does anybody else have statements from clients that they could make copies in the meantime, or from victims?
CHAIRPERSON: We will adjourn for two minutes just to enable our staff to make copies.
COMMITTEE ADJOURNS
MAPHUTHI JOSEPH CHIDI: (s.u.o.)
CHAIRPERSON: Has everyone been placed in possession of a copy of the summary of statements of admissions? I think Ms Vilakazi, when we started, you were not here, could you place your name on record?
MS VILAKAZI: I am Adv Lindiwele Vilakazi, appearing on behalf of the family of the deceased, Mr Moeng.
CHAIRPERSON: Thank you. You may proceed, Mr Moloto.
EXAMINATION BY MR MOLOTO: (Cont) Thank you Mr Chairperson.
CHAIRPERSON: We have had an opportunity to read the statement before us. I think you can proceed on the basis that we have read and understood it.
MR MOLOTO: Thank you Mr Chairman. Mr Chairman, I would like to lead Mr Chidi based on this statement which is before the Committee, can I proceed.
CHAIRPERSON: I would say clarifications of aspects which you feel should be highlighted, not the entire statement, as I have said, we have read it. You may just highlight portions of where you think it needs more meat.
MR MOLOTO: Thank you Mr Chairperson. Mr Chairman, the whole issue is based on the doctrine of common purpose. Mr Chidi admits that he was part of the mob which killed the deceased, and he had the common intention to unlawfully behave in that manner and he was politically motivated as a member of UDF and the Street Committee, and along those lines, I would like to lead him to explain how did it come that he was involved in this whole saga. Mr Chidi, are you the applicant in this matter?
MR CHIDI: That is correct.
MR MOLOTO: What do you want, what do you want the Committee to do for you?
MR CHIDI: I would request this Committee to give me amnesty.
MR MOLOTO: You still remember the incident in which Mr Moeng was killed in Tembisa at Viaynene Section on the 7th of May 1986?
MR CHIDI: Yes, I do remember.
MR MOLOTO: Can you briefly just state before this Honourable Committee as to what has taken place, which led you to be part of the mob which killed Mr Moeng.
MR CHIDI: I was on the 7th of May 1986, I was in my house, then I heard people screaming from the outside. When I went outside, I saw people running towards Mr Moeng's house, then I went there to have a look what was happening there. When I arrived there, there were many people who were dousing him with petrol, and they had already set him alight.
CHAIRPERSON: Could we just start here Mr Moloto, we give the statement a number, I would say Exhibit A. You cause Mr Chidi to confirm the contents of Exhibit A?
MR MOLOTO: That is correct Mr Chairman.
CHAIRPERSON: We want it on record that he has confirmed personally.
MR MOLOTO: Thank you.
JUDGE DE JAGER: Mr Chidi, have you read this statement or was it explained to you?
MR CHIDI: That is correct.
JUDGE DE JAGER: Do you confirm that this is the truth?
MR CHIDI: That is correct.
CHAIRPERSON: You may now proceed Mr Moloto, sorry about that.
MR MOLOTO: Thank you Mr Chairman. Mr Chidi, you said you proceeded to the section where the people were advancing towards the house of Mr Moeng?
MR CHIDI: Yes, that is correct.
MR MOLOTO: And what did you observe on your arrival where the people were gathering?
MR CHIDI: They had already doused Mr Moeng with petrol and they had already set him alight.
MR MOLOTO: What was your intention when you proceeded towards those people?
MR CHIDI: It was common knowledge in the township that people who were regarded as informers and Councillors, should be burnt.
MR MOLOTO: So you knew that they might be gathering to kill or burn Mr Moeng when you advanced towards the crowd?
MR CHIDI: Yes, I already knew that it could be possible that they were going to kill him.
MR MOLOTO: What did you intend doing if you could find that Mr Moeng was still alive?
MR CHIDI: I would also be part of that mob.
MR MOLOTO: The mob to kill Mr Moeng?
MR CHIDI: Yes, that is correct.
MR MOLOTO: So in other words you had the common purpose to participate in the killing of Mr Moeng since it was the general policy that all the informers and Councillors should be killed?
MR CHIDI: That is correct.
MR MOLOTO: Can you tell this Committee whether, did you belong to any political movement during that time?
CHAIRPERSON: Wasn't he UDF, I think he said, he confirmed the statement that he was a member of the UDF, we accept that.
MR MOLOTO: Mr Chairman, I wanted him to confirm the point. It is in the statement that you were the member of the UDF and as a Street Committee, is that correct?
MR CHIDI: That is correct.
MR MOLOTO: Who was your leader in the UDF and the Street Committee movement in Tembisa?
MR CHIDI: It was Gregory.
MR MOLOTO: Do you know his surname?
MR CHIDI: I have forgotten his surname, because this incident took place some years ago.
MR MOLOTO: So what you are saying basically is that you participated in killing Mr Moeng because he was a Councillor?
MR CHIDI: I did not participate because when I arrived, they had already set him alight.
MR MOLOTO: I mean to go there and also be with the mob in killing the Councillor, you participated in that fashion because it was a general trend that all Councillors and informers should be killed?
MR CHIDI: If I had that chance, I would have participated, but unfortunately I did not get that opportunity because there were many people there.
MR MOLOTO: I see. When I say participation, I mean even by advancing towards the place where the people were gathering, so now tell this Committee when you were tried at the trial of murder, you pleaded not guilty, can you explain to this Committee as to why did you not plead guilty whereas you were part of the mob which killed Mr Moeng?
MR CHIDI: I did not plead guilty because it was not allowed for us to tell the truth to the police, even in court.
MR MOLOTO: Why did you never tell the court the truth by then?
MR CHIDI: Because the court belonged to apartheid government, even the UDF did not allow us to do that.
MR MOLOTO: So now, are you telling this Committee the truth and if that is the case, why now are you telling this Committee the truth?
MR CHIDI: I am telling this Committee the truth because this is our government and we are all equal, this is why I decided that I must come here and tell the truth.
MR MOLOTO: And if you are given amnesty, will you respect law and order, peace and justice in the country?
MR CHIDI: That is correct.
MR MOLOTO: Are you happy with the running of the country under democracy as it is now?
MR CHIDI: Yes, I do.
MR MOLOTO: How many years have you already spent in jail?
MR CHIDI: I have spent 12 years and two months.
MR MOLOTO: What is the period which is remaining?
MR CHIDI: I am left with eight years, because I was sentenced to 20 years.
MR MOLOTO: So when do you want to be released in case you are granted amnesty?
MR CHIDI: As soon as possible.
MR MOLOTO: Mr Chairperson, I think that is all that I wanted to say.
NO FURTHER QUESTIONS BY MR MOLOTO
CHAIRPERSON: If we are amenable to granting amnesty, should we grant amnesty for murder and that would be the only thing for what he has been convicted of?
MR MOLOTO: I think so Mr Chairman.
JUDGE DE JAGER: There was no arson, there was no immovable property being burnt, so it cannot be arson? It could be, the burning of the deceased was the method in which the killing took place?
MR MOLOTO: That is correct. The only person, the only object which was burnt, was the deceased himself, unless his clothing is forming part of malicious damage to property.
JUDGE DE JAGER: And he was burnt while still being alive, he was set alight?
MR MOLOTO: I think that was how the necklacing was being done during those times. There was no question of killing you first and thereafter burn you, they poured petrol on your body and while you are still alive, they set you alight, and you are being killed by flames.
CHAIRPERSON: Was he burnt outside the house?
MR MOLOTO: I understand some three houses from his house, about three houses.
JUDGE DE JAGER: Could I just ask a question to the applicant, do you know Mr Shabedi?
MR CHIDI: Yes, I do.
JUDGE DE JAGER: Was he a friend of yours?
MR CHIDI: No, he was just an adult, he was older than myself, he was never my friend.
JUDGE DE JAGER: Was he an enemy of yourself?
MR CHIDI: No.
JUDGE DE JAGER: Mr Shabedi testified at your hearing, do you remember that?
MR CHIDI: Yes, I do remember him.
JUDGE DE JAGER: He testified that you pulled the deceased from his yard by holding into his belt, that you thereafter tripped him and that you placed your foot on the neck of the deceased. Is that how it happened?
MR CHIDI: That is not the truth.
JUDGE DE JAGER: Why would he be telling lies to the court?
MR CHIDI: Well, I don't know why he told the court lies. Mr Shabedi started that from the Magistrate's court and there he said he was told by the police to say that I did that.
CHAIRPERSON: Thank you. Ms Vilakazi, any cross-examination?
CROSS-EXAMINATION BY MS VILAKAZI: Thank you Honourable Chairperson. I would first like to make a follow up on the last question that was posed to the applicant. Mr Chidi, you have just testified that Shabedi at the trial said that he was assaulted by the police and forced to make the statement that he did, but Mr Shabedi also later on said that he was not telling the truth when he said that the police had assaulted him and that he fabricated that story of assault because you had intimidated him on the morning of the trial, what is your comment on that?
MR CHIDI: He said that, but after he was asked by the Judge and told that he will be sent to jail if he is telling the truth, and he changed.
MS VILAKAZI: Are you saying he was still lying that he saw you, even after being warned to tell the truth?
MR CHIDI: Yes, he was still telling lies.
MS VILAKAZI: I want to take you back to your evidence, in your evidence today you said that at the time when, after you heard people screaming and you went out, you found that Mr Moeng had already been doused with petrol and set alight, did I hear you correctly?
MR CHIDI: I said when I went outside, I saw a group of people, then when I went nearer that group, I realised that they had already doused him with petrol and set him alight.
MS VILAKAZI: I want to refer you to paragraph 5 of your statement which was handed in as part of your evidence. In that statement, I will read, it says
"... on the 7th of May 1986, I was amongst the people who chased the deceased, Mr Moeng, from his house and poured petrol on him and set him alight, although I could not get a chance to assault and burn him personally due to many people who were in front of me."
So you said in this statement, you are saying that you were part of the group that chased him, in the statement it is not mentioned that you found that he was already doused with petrol at the time when you arrived there, why is there this controversy?
MR CHIDI: In my statement I never said that I chased him. What I said is that I heard people screaming and then when I went outside, I saw this group of people and then I went there.
MS VILAKAZI: Maybe I should help you to recall, what you have just said is what you said when you were led by your legal representative, and I am saying in your statement, in paragraph 5 of the written statement that was submitted, you do not indicate that you arrived at the spot when the deceased was already doused with petrol. In this written statement in paragraph 5 you are saying that you were amongst the people who chased the deceased from his house and poured him with petrol? This is not in line with what you are saying, so which is the correct version?
MR CHIDI: What is the truth is that I heard people screaming and then I went outside and followed those people, and others were already dousing him with petrol. It is not the truth that I was chasing him together with this group.
MS VILAKAZI: In other words, you are saying the written statement is not correct?
MR CHIDI: Well, I don't know.
MR MALAN: Sorry for interrupting you, Mr Chidi, Mr Moloto handed in a statement, a hand-written statement which you signed yesterday and this was put to you by Mr de Jager and he asked you whether you confirmed the contents and I think you said yes, Judge de Jager. Do you have a copy of the statement before you? Do you recognise that statement? I don't want you to deal with the contents now, you can see this document, on page 2, there is a signature and it was signed before Mr Moloto, is that signature in the right hand corner on the second page, is that your signature?
MR CHIDI: Yes, that is my signature.
MR MALAN: Did you sign it yesterday?
MR CHIDI: Yes. No, I signed it today.
MR MALAN: You signed it today only, it seems to have been dated the 22nd, but let's accept it is today.
MR MOLOTO: It is the 23rd.
MR MALAN: Is it the 23rd?
MR MOLOTO: Yes.
MR MALAN: So you signed it today?
MR CHIDI: That is correct.
MR MALAN: Did you give this information to Mr Moloto?
MR CHIDI: Yes.
MR MALAN: Did he read the statement out to you again?
MR CHIDI: Yes, he did.
MR MALAN: Were you happy, did you tell him that anything in the statement is not correct?
MR CHIDI: I was happy the way it was written.
MR MALAN: Now the question that was put to you now, if you look at paragraph 5, that is the last paragraph on the first page. You say that
"... on the 7th of May (I am reading it out to you if you can follow), I was amongst the people who chased the deceased, Mr Moeng, from his house."
You were amongst the people who chased him from his house and poured petrol on him and set him alight? You continue to say -
"... although I could not get a chance to assault and burn him personally, due to the many people who were in front of me."
But there you say you were amongst the people who chased him from his house, is this correct or is it not correct?
MR CHIDI: I think it is wrong there where it says I chased him, because when I went outside, the people were already there.
MR MALAN: And they had already been burning him? That is what you told us now in your oral evidence?
MR CHIDI: They were running towards his house, that is the time when I went outside from my house, after hearing the screaming.
MR MALAN: And your house is very close to his house?
MR CHIDI: Yes, that is correct, we are on the same line.
MR MALAN: They run passed your house, you hear them screaming, you run out?
MR CHIDI: That is correct.
MR MALAN: And when you get there, he has already been pulled out of his house and burnt?
MR CHIDI: They were dragging him outside and pouring petrol on him, next to his gate.
MR MALAN: Mr Chidi, the idea is not to catch you out, the idea is to get to the truth. Let me make it clear to you, we want to facilitate the granting of amnesty for which we must get a full disclosure and a truthful disclosure of what happened, so you must tell us everything exactly as it happened. I have now three versions. The one is the statement here that you chased him out of his house, paragraph 5, the second one was your oral evidence saying when you got out and ran there, they had already set him alight, and when I asked you now, you gave a third version saying when you got there, they were pouring petrol over him.
CHAIRPERSON: Dragging him and pouring petrol.
MR MALAN: Yes, dragging him and pouring petrol over him. Now, really sit back for a moment, gather yourself and give us the true story. I am sorry for the interruption there, but we need to find out what was the exact truth, what happened, and the family wants to know what happened and exactly what your involvement is. Please, can you now again tell us exactly how did you get involved?
MR CHIDI: I was in my house when I heard the shouting outside, when I went outside, I saw a group of people running towards the deceased's house. I also went there because I wanted to know whether they were going to his place, then I realised they were going to his house and other people were already dragging him outside, pouring petrol on him and setting him alight. That is what I saw.
MR MALAN: You may continue Ms Vilakazi.
MS VILAKAZI: I want to make a follow up on what you have just said for the sake of clarity. You said you heard the noise and then you saw a group running towards the house and realised that they were going to his house. Is that what you said?
MR CHIDI: That is correct.
MS VILAKAZI: I just want clarity, at the time when you arrived at the mob, what was happening?
MR CHIDI: They were dousing him with petrol and setting him alight. That is when I arrived.
MS VILAKAZI: What was your role, what did you actually do?
MR CHIDI: There were many people around him, and I did not get a chance to participate.
MS VILAKAZI: So you did not do any positive act towards the killing of Mr Moeng?
MR CHIDI: Yes, but I was part of that group and my intention was to do what they did, to him.
MS VILAKAZI: Now let's go back to another aspect. When your legal representative asked you did you know that Mr Moeng was going to be killed by the mob, you said yes, do you recall that?
MR CHIDI: Yes, I do remember.
MS VILAKAZI: When did you know that Mr Moeng was going to be killed?
MR CHIDI: He was discussed in meetings because he was a Councillor, but I did not know the exact date that he was going to be attacked.
MS VILAKAZI: Was there a decision taken that he is going to be killed?
MR CHIDI: No, there was no decision taken that he was going to be killed, it was only said that he was a Councillor, but the date was never discussed on which he would be killed.
MS VILAKAZI: I don't get you clearly. You say, you earlier said there was no decision that he was going to be killed, and then now you are saying there was no date set as to when he was going to be killed. Was there a decision that he was going to be killed?
MR CHIDI: It was only discussed that he was an informer and he must be eliminated. It was never said specifically that he was going to be killed.
MS VILAKAZI: Were you an active member of the UDF?
MR CHIDI: I did not have a membership card, I was only a supporter of the UDF.
MS VILAKAZI: Did you take part in any of its activities?
MR CHIDI: Yes, I did.
MS VILAKAZI: I have no further questions, thank you.
NO FURTHER QUESTIONS BY MS VILAKAZI
CHAIRPERSON: Before you come in, Ms Thabethe, what did you understand when they said he should be eliminated?
MR CHIDI: My understanding was that maybe they didn't want him to stay in that area, they wanted to chase him away.
CHAIRPERSON: Thank you, Ms Thabethe?
CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair. Mr Chidi, you spoke of a meeting that was held where a decision was made that Mr Moeng should be eliminated, when did this meeting take place? When before he was actually eliminated?
MR CHIDI: I cannot remember the date.
MS THABETHE: Not the date, would you say a week before he was eliminated, was it a matter of days before he was killed?
MR CHIDI: It can be two weeks before his death.
MS THABETHE: And who held this meeting?
MR CHIDI: The meetings were also attended by other people from other townships, not only people from Viaynene Section. I didn't know other people who attended the meetings.
MS THABETHE: So would I be correct to say was it a meeting held by the community as opposed to a meeting that - a UDF meeting?
MR CHIDI: Yes, it was a community meeting.
MS THABETHE: How did it come about that Mr Moeng's name was discussed in that meeting?
MR CHIDI: It is because he was a Councillor.
MS THABETHE: So, just for the record, what did it mean then if he was a Councillor? What was the implication of him being a Councillor?
MR CHIDI: Because we were boycotting the Councillors at that time, we were boycotting the rent, and the Councillors were people who were forcing the community to pay rent, paying rent to the old regime, and they were also sell-outs, they were regarded as sell-outs by the community.
MS THABETHE: My last question, how many people would you say were there when Mr Moeng was killed?
MR CHIDI: There can be around 500, that is my estimation.
MS THABETHE: Thank you Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe. Mr Malan?
MR MALAN: Didn't you hold any office at that time in the UDF or in the community?
MR CHIDI: I was a member of the Street Committee.
MR MALAN: In the application that you made to the TRC, which is on page 2 of the Bundle, I don't know whether Mr Moloto has the bundle there for you, you say that you were a scapegoat of the community and that a false case was made against you for robbery and attempted murder of a SAP at Tembisa. Do you recall having made that statement?
MR CHIDI: Yes, I do remember making that statement.
MR MALAN: What did you intend telling us there?
MR CHIDI: I did not trust even the person who represented me, I wanted Mr Moloto to come and represent me.
MR MALAN: Is this a false statement? What are you telling us, I don't follow you?
MR CHIDI: Yes, the statement is false.
MR MALAN: Did you tell Mr Moloto that that statement was false?
MR CHIDI: Yes, I did discuss that with him.
MR MALAN: Why did you not tell us when you started with your application?
MR CHIDI: Do you mean today sir?
MR MALAN: Today, yes.
MR CHIDI: I thought maybe Mr Moloto will tell you about that, and he did not ask me about that.
MR MALAN: Now, when you appeared at the trial, were you represented by Mr Kassiem?
MR CHIDI: That is correct.
MR MALAN: Who appointed him as your lawyer, did you choose him or did the UDF give him to you as a lawyer, how did it come about?
MR CHIDI: I was, he was chosen by the UDF.
MR MALAN: You gave him certain information which he put before the court, do you remember that?
MR CHIDI: Yes, I do.
MR MALAN: And you also gave evidence, do you remember giving evidence?
MR CHIDI: Yes, I do remember.
MR MALAN: If you look at page 12 of the Bundle, if Mr Moloto could just show you that, which is an extract from the judgment of the Judge, where he quotes the statement, it is referred to as Exhibit B. If you look at the top paragraph
"... Mr Kassiem, on behalf of accused 2 (that appears to be you), handed in an explanation of the plea which is marked Exhibit B."
Do you remember that was handed in at the trial?
MR CHIDI: Although I am not sure, but I do slightly remember.
MR MALAN: Okay, then in that statement, what was put before the court, Mr Kassiem put before the court, a statement where you said that you saw a large group of young persons gather at the corner of the street where you lived. In other words they were standing there, they were gathered there, that is paragraph 1, you can check there, I will read it to you, paragraph 2 you say
"... I walked towards that group and heard some of them shouting that they should burn the Town Councillor."
Can you recall that?
MR CHIDI: Yes, I do remember.
MR MALAN: Why did you not tell us about this today?
MR CHIDI: In court, we are afraid to tell the truth, because we did not have a trust in those courts, it is only now that we want to tell the truth before the TRC. In that court, we were not telling the truth at all.
CHAIRPERSON: The question is why didn't you tell us that today, what you have said there? We understand that you have trust in the TRC.
MR MALAN: Let me explain to you my difficulty. What you put before the court, was more of a personal involvement because at court you already acknowledged that you participated in some discussion in that gathering about the burning of the Councillor, you joined this group who discussed amongst each other the burning of the Councillor and you didn't trust the court, you tell us. You come before the TRC and you don't tell us of any such personal involvement, you tell the TRC that people were running passed you, you followed them, when you arrived, Mr Moeng was already being poured with petrol and set alight. You don't tell us about any prior involvement? You see Mr Chidi, you must make a full disclosure of your whole involvement. Can you comment on this discrepancy?
MR CHIDI: I am telling what I have told the TRC today, but other things I don't remember, because this incident took place many years ago.
MR MALAN: Thank you Chair, I have no further questions.
CHAIRPERSON: Judge de Jager? Thank you. Any re-examination Mr Moloto?
MR MOLOTO: Nothing, Mr Chairman, thank you.
NO RE-EXAMINATION BY MR MOLOTO
CHAIRPERSON: Thank you Mr Chidi, you may stand down.
WITNESS EXCUSED
CHAIRPERSON: Are you in a position to argue, Mr Moloto? Before we do that, we apparently have victims here. Ms Vilakazi, are you going to tender evidence from the victims?
MS VILAKAZI: My instructions are that there is just a message to the Committee and to the applicant, but no evidence will be tendered on behalf of the victims.
CHAIRPERSON: Are they not opposing?
MS VILAKAZI: With regard to whether to oppose or not, my instructions are that it is left to the Honourable Committee to determine whether the applicant qualifies for amnesty or not.
CHAIRPERSON: Mr Chidi, could you come back, because we believe that there is a member of the family who wants to give a message and you should also hear the message. Could you come back, I am sorry about that. My apologies, Mr Moloto.
RECALL - MR CHIDI
MAPHUTHI JOSEPH CHIDI: (s.u.o.)
MR MOLOTO: Thank you Mr Chair.
CHAIRPERSON: Whom are you calling Ms Vilakazi?
MS VILAKAZI: It is just a message that I have been asked to convey, I am not going to call any family member.
CHAIRPERSON: Oh, it is going to be conveyed by you?
MS VILAKAZI: Yes.
CHAIRPERSON: You may proceed.
MS VILAKAZI: Mr Chidi, in my consultation with the family of Mr Moeng this morning, Mrs Moeng asked me to convey this message to you that your contribution towards the killing of her husband, has hurt her feelings very much and she has not been able to recover from that. She finds it very difficult in her heart to say that she will come to a stage where she will forgive you, but on the other hand, she understands the purpose of these proceedings being that there should be reconciliation, and also the fact that as a christian, she is bound to forgive. But personally, it is very difficult for her to say that she is ready to forgive you.
She also wants you to know that the death of her husband has resulted in difficulties in the home because Mr Moeng was a breadwinner, now Mrs Moeng is left with three children that she has to look after. Her eldest child who is a daughter is disabled, she is mentally disabled, so therefore she is unable to find work for herself, she will not be able to work. Her second child, a son, is unemployed and the third child is at school. She has an increased financial burden as a result of the death of her husband, she wants you to know that you have contributed towards that and as a result of your participation, she finds life very difficult even today. That is all, Mr Chairman.
JUDGE DE JAGER: Sorry, was the deceased a doctor? What was his position? I seem to remember I have read somewhere Dr Moeng?
MS VILAKAZI: No, I do not have such instructions, perhaps, if necessary I could enquire from the family.
CHAIRPERSON: But from the record it transpires that he was running some business, wouldn't that be correct, the court record?
MS VILAKAZI: My instructions were that he was employed at that time.
CHAIRPERSON: After the evidence tendered, would you feel that you've got to take further new instructions?
MS VILAKAZI: Perhaps I should do so.
CHAIRPERSON: How much time would you need?
MS VILAKAZI: I think ten minutes would suffice.
CHAIRPERSON: We will give Ms Vilakazi ten minutes to take further instructions after evidence has been led by Mr Chidi. We will adjourn for ten minutes.
MS VILAKAZI: I am indebted to you, Mr Chair.
COMMITTEE ADJOURNS
MAPHUTHI JOSEPH CHIDI: (s.u.o.)
CHAIRPERSON: Ms Vilakazi, what is the position?
MS VILAKAZI: Thank you Honourable Chairperson, for the opportunity to consult. There is just one aspect that I was asked to put and emphasise before the Committee, otherwise, I am still not going to call any member of the family to give evidence. That aspect relates to the health of Mrs Moeng. I am not sure whether I should raise that factor now, or I could leave it for my closing argument, I seek direction from the Honourable Committee.
CHAIRPERSON: You cannot argue on something which is not before us.
MS VILAKAZI: Okay, in that respect then, I would put it to the Committee. Mrs Moeng has indicated that she became hypertensive, she suffers from high-blood pressure and she was not suffering from that before the death of Mr Moeng, and it was diagnosed immediately after the death and she has been receiving treatment ever since, even now, she is still undergoing treatment. She goes for monthly check-ups and she has to pay that, for the medical expenses, out of her own pocket. It is because of that, she would have liked to have said something before the Committee, but she is not in a good state of health, to be able to convey whatever message that she had, herself, that is why she asked that I convey the messages on her behalf. Thank you Honourable Chair.
CHAIRPERSON: Thank you, may you convey to her that we have heard you and we sympathise with her.
MS VILAKAZI: That I will do, Honourable Chair. I take it, Mr Moloto, you've got no further evidence to lead?
MR MOLOTO: Mr Chairman, I thought in the light of this message which was conveyed, it would be proper for me to consult with Mr Chidi, to find out as to whether he doesn't have some apologetic response to the whole issue. I don't know whether it is necessary Mr Chairman.
CHAIRPERSON: Should we adjourn for that?
MR MOLOTO: I think so, Mr Chairman.
JUDGE DE JAGER: The trouble is, I've got a real problem with having to ask him whether he wants to say something about an apology. I think it should be spontaneous and he shouldn't be urged to ask for an apology. If he wants to say something out of his own heart, he can say so. If he should be needled to say something, I think it is better he does not say it.
MR MOLOTO: Mr Chairman, I understand it, but I think it would be proper to advise him of his rights and obligations, not to urge him to apologise. Just to give him an opportunity to indicate, because after the evidence or the conveyance was led before this Committee, I have never indicated to him that he needs to have some reaction. It would be in the interest of justice, Mr Chairman, to give me a one minute adjournment so that I can consult with him, to something of that sort, Mr Chairman.
CHAIRPERSON: In view of Ms Vilakazi having said that something wants to be said to him personally, hence I called him back, we will just stop the microphones and give you a minute to enquire whether he wants to say something or not.
MICROPHONES SWITCHED OFF
ON RESUMPTION
MR MOLOTO: Mr Chidi would like to say something, Mr Chairman.
CHAIRPERSON: Thank you Mr Moloto. You may proceed, Mr Chidi.
MR CHIDI: Okay. I would ask Mrs Moeng to ... (tape ends) ... that have resulted as a result of his death, I ask her to forgive me.
CHAIRPERSON: Is that all, Mr Chidi?
MR CHIDI: Yes, that is all, Chair.
CHAIRPERSON: Thank you Mr Chidi.
WITNESS EXCUSED
CHAIRPERSON: Mr Moloto, are you in a position to argue?
MR MOLOTO: I am, Mr Chairman.
CHAIRPERSON: Okay. Ms Vilakazi, are you in a position to argue?
MS VILAKAZI: I am, Mr Chairman.
CHAIRPERSON: Ms Thabethe, are you in a position to argue?
MS THABETHE: Always, Mr Chairman.
CHAIRPERSON: Thank you. We will give Mr Moloto the first chance.
MR MOLOTO IN ARGUMENT: Mr Chairman, my position is that I am submitting that it will be in the interest of justice, peace and reconciliation and in accordance with the main objectives and aims of the TRC, to pardon Mr Chidi and give him amnesty because he has disclosed at least to the maximum point, his guilt and the conditions and circumstances under which the death of Mr Moeng took place, it was during the political upheaval of UDF and other political forces and also it was at the prime classical period of apartheid regime, when the dying horse was kicking the hardest.
Mr Chidi, although he had some discrepancies, the discrepancies cannot overwhelm the disclosure as he has stated that in actual fact, he had the common purpose, he had the intention to come and join the mob and kill Mr Moeng, that is the bottom line. As to whether he joined the mob at a certain point, but he admitted that the ultimate aim was that he would like to see Mr Moeng being eliminated like other Councillors and informers, and therefore he has tried by all means to explain some discrepancies about the trial, the previous instructions to Adv Lopeng and the discrepancies between his version and the statement that was put before this Honourable Committee and under these circumstances, my humble submission is that it shall be in the interest of justice, truth and reconciliation of our nation, if Mr Chidi is granted amnesty as applied for, more especially that the victims' council did not deem it fit to actually oppose, but to just convey a message, and under those circumstances, I am submitting that Mr Chidi be granted amnesty as applied for, Mr Chairman. Thank you.
MR MALAN: Mr Moloto, in your argument you state that he disclosed the maximum point of his guilt. If I understand you correctly, he is simply joining the mob and him also wanting the individual dead constitutes that guilt, do I understand you correctly?
MR MOLOTO: That is my understanding.
MR MALAN: Now, in terms of the doctrine of common purpose, shouldn't there be more of an involvement before a person could be found guilty on common purpose?
MR MOLOTO: Mr Chairman, my understanding of common purpose is that the accused person should have formulated the intention to participate and commit the crime, and as to whether he would be given an opportunity to do that, is something else. If Mr A intends to join the people who are chasing Mr B, and at a certain point, he is overrun by the people and Mr B, he doesn't get the chance to catch Mr B before he dies, and thereafter, he arrives where Mr B has already been killed, and he stands and says "yes, you did a good job, if I could have been around, I could have done this and this", I believe Mr Chairman, that is sufficient to form a common purpose, because the common purpose according to my understanding is that the intention, the ability must be there, the only lack of opportunity is not material.
So in this matter specifically, Mr Chidi intended to follow those people and also go and participate even if he could have been given a can or a tin of petrol, and a box of matches, he could have ignited it and burnt the deceased person. That is what I understand by common purpose, Mr Chairperson.
CHAIRPERSON: By him being a bystander when Mr Moeng was burnt, would we say he had a common purpose because the meetings he attended, there was the elimination of Mr Moeng and in further probing, what was meant by the elimination, he said that Mr Moeng must leave the area. That is the act he associated himself with and what did he associate himself with when Mr Moeng was burnt?
MR MOLOTO: Mr Chairman, Mr Chidi has associated himself with the political meetings where there were some decisions taken about the general approach of elimination of sell-outs, informers and Councillors and inter alia he understood that Mr Moeng should leave the area, but that might have been to say leave the area or be killed, because if Mr Moeng is no more wanted in the community, because he was a Councillor and an informer, once Mr Moeng leaves the area, the complaints that the community had on him, would be automatically be removed. It is automatic that if Mr Moeng should not or is not removed, leaving the area, the alternative was to be eliminated and in the form of any sort of killing, that is how I understand that he should leave the area, not only that he should leave the area and if he does not leave the area, he would be left in peace. It is a matter of he should leave the area or else he should be eliminated by other methods, like killing.
JUDGE DE JAGER: But did anybody request him to leave the area, there is no evidence about that?
MR MOLOTO: Mr Chairman, there was no evidence to the effect that there were - those people were requested to leave the area, it was just a matter of complying with what the people are demanding, either to leave the area of to wait for the worse or the worst. There was no decision to say "inform these people to leave the area, but the way things were being done, it was, the whole situation was to leave the victim with no option but either to stand and risk his life, or to leave the area as others did leave the area. Some of them are still alive because they have left the areas.
JUDGE DE JAGER: Isn't it perhaps the truth that the word eliminate didn't mean to leave the area, the word eliminate and he understood it to be "we will kill you"?
MR MOLOTO: Mr Chairman, I am speaking with subject to correction, if I am going to put the words in Mr Chidi's mouth, but Mr Chidi is a lay person, he is not a man who is knowledgeable in politics, to an extent that he can understand some semantics of the words used during those times or the legal terms. When he was asked what did you understand by elimination, he said that he should leave the area, but I understood it to say that he was mentioning as an option, but the option, the other option of not leaving the area was clear that it was to wait for dying.
CHAIRPERSON: So elimination is kill?
MR MOLOTO: That is correct Mr Chairman.
MR MALAN: Mr Moloto, why did you not lead that evidence, why didn't you lead it then in re-examination, why did you choose not to do any re-examination if that was left open?
MR MOLOTO: Mr Chairman, I will have to say I am sorry for that, I now realise my omission to get clarification by way of re-examination. It just slipped my mind Mr Chairman, with due apology, I could have got some clarification on that issue, because I realise now that it is an issue which is creating some doubts as to whether what was meant by the elimination or the leaving of the area.
MR MALAN: May I just summarise the essence of the evidence, because I am still not satisfied about the argument that you put before us on the common purpose doctrine. Is the essence of the evidence not then even if we accept the elimination, that he knew, if we accept your argument now, that he knew that at some stage, if Mr Moeng would not leave the area, he would be killed? Furthermore that no date was discussed, no decision was yet taken to kill him, that he then heard the people running and shouting, screaming passed his home, that he joined the mob when all the actions pertaining to the killing of Mr Moeng had already been fulfilled by those involved. That he could not get close to them, and that in fact he was not involved in the killing, but it carried his approval, isn't that the essence of his evidence?
MR MOLOTO: It is so Mr Chairman, but with a little bit of qualification about the date of decision to kill Mr Moeng. As I understand it, the general trend was that there was a general decision by the political organisations that all informers, sell-outs and Councillors should be eliminated.
MR MALAN: I think that is accepted, I am simply talking about the applicant's personal involvement, not whether it was right or wrong to kill Mr Moeng. For the purposes, we accept that it was policy to kill such people, my question relates to the apparent lack of personal involvement in the decision to kill and in the act of killing Mr Moeng. The essence of his evidence is that he joined the crowd somewhere at the back, when everything had been done, he joined the crowd when Mr Moeng had been dragged out of the home, doused with petrol and set alight. He was an onlooker on his own evidence?
MR MOLOTO: Mr Chairman, according to my understanding, starting with the decision, the decision had been taken generally that the people should be eliminated, and he was part of the general decision, but the only thing is that since informers and sell-outs were different people, some other decisions of specific dates and operations were taken in his absence, but the main one he was part of it, now he sees people passing and going towards Mr Moeng's house, in his mind he knew that this might be the day, because generally the people of Mr Moeng's calibre should be eliminated. He joins them, he joins them and he found that they are now killing, they are dousing with petrol, they are burning, he does not even dissociate himself from that crowd.
In actual fact in his own statement today here, he says "unfortunately the people were so many in front of me, to an extent that I could not have a chance to participate fully", in other words he was prohibited, he was forbidden a chance to participate with the burning or doing anything. In other words, if he could have been nearer before Mr Moeng was doused with petrol, he could have taken a stone or something and also participated in the form of an assault. That is how I understand it to be a common purpose of a man who intended to do whatever has been decided some time ago, to eliminate the Councillors. That is how I understand it, Mr Chairman.
MR MALAN: May I put a last question to you, what are we to make of the fact that he discloses more of a personal involvement to the court, which he didn't trust, as is contained in the record, than he disclosed to the Amnesty Committee?
MR MOLOTO: Mr Chairman, Mr Chidi has already indicated that he did not trust those courts and whatever was said, was nothing else but a lie. You will find ...
MR MALAN: No, no, no, I got that from Mr Chidi, the question is despite the fact that he didn't trust the courts, he shared with the courts more of a personal involvement, of joining this group, discussing the killing, then going back to his home and eventually joining up with the crowd, here he denies the discussion with the group in front of his house, and he says that is a lie. I am asking you what are we to make of a situation where he now denies part of a personal involvement which he did not share with us, but he shared with the courts? Isn't that suspicious?
MR MOLOTO: Mr Chairman, I cannot say it is suspicious as he has already tried to explain his position. I cannot even say whatever he has disclosed to the court by then, was the true reflection or it was the truth than today. What I realise is that there are some discrepancies between the two versions, so as to which one is more truthful than another, that remains a (indistinct) as far as I am concerned, Mr Chairman.
MR MALAN: Thank you.
CHAIRPERSON: So when he saw Mr Moeng doused with petrol and set alight, it satisfied his desire that Mr Moeng should die?
MR MOLOTO: That is correct, that is how I understand it.
JUDGE DE JAGER: There is only one thing in fairness to the family of the deceased, there was no evidence before us that he was in fact an informer? There might have been a decision to kill informers, but on the evidence before us, he was killed because he was a Councillor and not because he was an informer, he might have worked with the government at that stage, in a certain sense of being a Councillor, but in fairness, I think we should put it on record that there is no evidence that he was in fact an informer, informing against his own people at that stage.
MR MOLOTO: Mr Chairman, with due respect, the time of the commission of this event, it was the time of the political upheaval in the country, in such a way that there were so many slogans, so many definitions of some other terms, the informer of those times, the man who was regarded as an informer, there was not a clear definition or distinction between a sell-out, an informer and a Councillor.
JUDGE DE JAGER: Mr Moloto, that may be so, I am talking about the evidence here. There was no evidence that he was an informer, there was evidence that he was acting as a Councillor and that he had to be removed because he was a Councillor, and that was the only evidence before us. I don't want to know what people might have thought, if we haven't got that evidence before us.
MR MOLOTO: Thank you Mr Chairman.
CHAIRPERSON: Before you go further, the evidence further goes that he went against the wishes of the people, that he wanted people to pay rent when the people didn't want to pay rent. I think that is the evidence before us?
MR MOLOTO: That is correct Mr Chairman. That is why I am saying the elimination of Mr Moeng was based on his Councillor membership, as a member of the Council, against the wishes of the people by then, that was sufficient to give him a death sentence as far as I am concerned.
CHAIRPERSON: Thank you Mr Moloto.
MR MOLOTO: Thank you.
CHAIRPERSON: Mr Vilakazi?
MS VILAKAZI IN ARGUMENT: Thank you Honourable Chairperson. May I start by indicating that the fact that the
family of the deceased, Mr Moeng, has not gone out to say that they are opposed to the application, does not in any way affect the question as to whether or not the applicant has satisfied the requirements of the Act with regard to whether amnesty should be granted or not. The requirements are three-fold. The first being that there must be compliance with regard to the application itself, that the application should comply with the requirements of the Act.
Inasfar as that is concerned, I should leave it to the Committee to make a finding with regards to whether the application was properly submitted or not.
CHAIRPERSON: It was submitted on the 9th of April 1996, well within the time.
MS VILAKAZI: Thank you. Thank you Honourable Chairperson, on that. The second requirement is that there should be full disclosure.
Inasfar as that is concerned, may I point out that the Committee cannot be in a position to accept that there has been full disclosure if there are questions with regard to whether or not the information put before it, is reliable information. Therefore the credibility of the applicant is an important consideration with regard to whether a finding shall be that there has been full disclosure or not.
The credibility of the applicant cannot be said to be impeccable, the applicant has put different versions to the Committee. Mr Moloto has intimated that, and the applicant himself has said that the evidence he gave in court, was a false evidence.
Let us suppose that the Committee accepts that that evidence was false in all material respects. The Committee has been presented with oral evidence by the applicant as well as written evidence in the form of a statement submitted to the Committee and which statement was confirmed by the applicant. In as far as the two are concerned, the applicant in his statement said that he was amongst the group that chased the deceased and poured petrol to the deceased and setting him alight. In essence it is saying that he was part of the group that killed the deceased.
In his oral evidence the applicant said and he has said that more than once, that he only arrived when the deceased had already been poured with petrol and set alight. That presents problems with regard to which version must be accepted as the correct version, whether the statement as it stands, and as confirmed by the applicant, should be accepted or whether his oral evidence that he only arrived after the deceased had already been poured with petrol, should be accepted to be the correct version.
MR MALAN: I think Ms Vilakazi, that he did in oral testimony say that paragraph 5 was wrong, it was a mistake.
MS VILAKAZI: If that is accepted, if the Committee accepts that ...
CHAIRPERSON: We haven't accepted anything at this stage, we want to hear your submissions.
MS VILAKAZI: My submission is that the applicant has confirmed the contents of the statement, the statement was submitted on behalf of the applicant and it is a statement that was signed by the applicant this morning and he has accepted it formally. The statement contradicts the oral evidence that he has given, and on that basis, it is my submission that the applicant should not be found to be a credible witness.
CHAIRPERSON: With that contradiction, would you say still there is no full disclosure because I think the premise from which you moved was on full disclosure, before you addressed us on credibility?
MS VILAKAZI: My, the premise on which I base the question of credibility was that the Committee can only find that there has been full disclosure if it finds that it can rely on the evidence of the applicant. If the credibility of the applicant is questionable, it is my submission that the Committee cannot find that there has been full disclosure. With regard to the question of the participation of the applicant in the light of the doctrine of common purpose, from the evidence of the applicant, the oral evidence that he has given, he did not take part in the setting alight, in the chasing of Mr Moeng, he did not take part in the dousing of Mr Moeng with petrol, he did not take part in the setting alight of Mr Moeng. In response to a direct question that I asked him, as to whether he has actively participated in the killing of Mr Moeng, he in his own words said no, he did not participate actively. Now, perhaps I could ask the direction of the Committee with regard to the actus reus with regard, on the doctrine of common purpose.
CHAIRPERSON: No, you are arguing, you cannot give direction at this stage, we want to listen to your submissions.
MS VILAKAZI: My submission is that for the applicant to be found to have participated or to have been guilty of common purpose, he must have actively participated in one way or another in the act of killing Mr Moeng.
CHAIRPERSON: Is association with the act not sufficient? The five points mentioned in the case of S v Mkedezi 1989 (1) 689?
MS VILAKAZI: I would submit that the points may not be as vivid as it may be required of me, at the present moment.
CHAIRPERSON: He must have associated himself with the act perpetrated, he must have associated himself in one way or another in the participation in this instance of the meetings that were held in regard to the elimination of Mr Moeng? Thirdly, whether he made, whether he actively doused him with petrol and set him alight, those are some of the three amongst the five which are relevant for our purposes?
MS VILAKAZI: I am indebted to you Mr Chairman, for that. Now, from the evidence of Mr Moeng, he did not actively participate in the action of killing Mr Moeng, he only arrived at the scene when he was doused with petrol and set alight, so there was - the only association from what he has said, was the result and not the action of killing Mr Moeng. He only associated himself with the fact that Mr Moeng was killed, and he accepts that because he was a Councillor.
CHAIRPERSON: His presence and I am referring to the evidence, that he could not lay a hand on Mr Moeng, but he was present there and he associated himself with the actions of the perpetrators, wouldn't it satisfy the requirements of common purpose?
MS VILAKAZI: It is my submission that it does not. At the most he was just a bystander.
CHAIRPERSON: You may proceed.
MS VILAKAZI: The other point which I submit it also pertinent, is the question as to whether or not a decision was taken to kill Mr Moeng. There has been much deliberation with regard to that. My submission is that from the understanding of the applicant, was that Mr Moeng should be removed from the community. That is what the applicant himself said. It was not his understanding that Mr Moeng should be killed.
CHAIRPERSON: Don't you think at this stage we are not confused about the definition of elimination because we have heard so many definitions of elimination, that I think a dictionary should be written that we understand the word fully.
MS VILAKAZI: I do concede that there is a confusion, but my submission is that the applicant ...
CHAIRPERSON: Let's concentrate on his version, let's leave him as a person.
MS VILAKAZI: Yes, the version of the applicant was that it is not his version that it was decided that Mr Moeng should be killed. Therefore, on that basis, he cannot be regarded as having associated himself with the killing, a decision to kill Mr Moeng. That would be my submission with regard to the question of ...
JUDGE DE JAGER: Just to come back to this. He testified that he understood this to mean that he should leave the area, is that correct?
MS VILAKAZI: That is correct, yes.
JUDGE DE JAGER: But he also testified that while they were busy killing him, he was prevented from getting at the deceased, because he would have poured the petrol and lit the fire, but that is not asking a person to leave, that is - he associated him there with the fact that this person is being killed. That was a different understanding of elimination if that was the elimination he had in mind.
MS VILAKAZI: If we accept the version of the applicant as he put it, then I would submit that if we accept that he associated himself with the killing at the time when the killing took place, that association was not linked to an earlier decision, because his understanding of the earlier decision was never that of, that Mr Moeng should be killed.
JUDGE DE JAGER: Yes, I follow you.
MS VILAKAZI: The next question that arises is with regard to whether there is a political objective. In as far as that is concerned, the applicant has put evidence to the effect that he was a member of the UDF and he was also a member of the Street Committee.
On behalf of the family, I would submit that the family is not in a position to dispute that and that would close my submissions with regard to whether the three requirements have been complied with. But then just on a final note to say that my submission is that the applicant has not complied with the requirements for amnesty. The requirement having not complied with is being the requirement with regard to full disclosure, having commented on the credibility of the applicant. I would end my submission by referring the Committee to the affect of the death of Mr Moeng on the family. With the purpose of assisting the Committee in determining whether or not the family should be regarded or should be declared as victims should amnesty be granted.
JUDGE DE JAGER: Yes, I think if we would grant amnesty, we would in my point of view, I would agree that Mrs Moeng should be a victim and the children, at a stage when they have no father and they have no support and those who need support, should also be victims.
MS VILAKAZI: In the light of that, I will make no further questions and I will close.
MR MALAN: May I just ask of you Ms Vilakazi, whether Mrs Moeng had made a statement to the Human Rights Violations Committee of the TRC, do you have any knowledge about that?
MS VILAKAZI: I do not have any knowledge of that.
MR MALAN: I think I can also say that the Act also allows us, we are in a situation to find if we are satisfied with the political situation, that Mrs Moeng may be a victim as described in the Act, even if amnesty is refused. The one does not necessarily go with the other, thank you Chair.
CHAIRPERSON: Ms Thabethe?
MS THABETHE IN ARGUMENT: Thank you Mr Chair. I would like to make submissions as well with regard to the family, that they be recommended for reparations in this unfortunate incident, the sad incident which occurred to them.
With regard to the applicant and the application before us, I would submit that the offence that was committed, is indeed political for the reasons of evidence that has been led before the Committee this morning. With regard tot he question of whether the applicant participated for purposes of common purpose, in killing Mr Moeng, my submission Members of the Committee, is that I would argue that he did participate for purposes of common purpose.
I would just like to refer to page 12 of the judgment which was referred to by Mr Malan, the Honourable Committee Member and submit that it appears that in court, the applicant removed himself from the act in that he says when he came out of his house, he heard, that is in paragraph 2, when he was walking towards the group, he heard some of them shouting that they should burn down the Councillor, and it does not indicate that he actually participated in the discussion that was taking place in that group.
MR MALAN: Sorry, before you proceed there Ms Thabethe, the question really related to not disclosing that discussion in the group. He denied such a discussion.
MS THABETHE: My submission is it does not necessarily mean it was a discussion, he just heard people shouting, it wasn't necessarily a discussion per se.
MR MALAN: But his evidence here was that he heard people screaming, running passed his home whereas in court his evidence was that the group of people gathered outside his house and that he went and joined them. That was the question. He shows more of a specific involvement in court, at least on part of the activities, and the run up than he shares here, and the question is why, why would he disclosure that in court and not here?
MS THABETHE: Actually Honourable Committee Member, that is what I am submitting too, that I don't read the judgment to be saying that. First of all it does not say that they gathered outside his house, it says on paragraph 1, they were gathered at the corner of the street which he lived in, so that does not necessarily ...
MR MALAN: Can you read paragraph 2 there please Ms Thabethe, where he says "I walked towards this group and I heard some of them shouting that they should burn the Town Councillor".
MS THABETHE: Precisely.
MR MALAN
"... The crowd then moved along towards the shop known as Dumalang Bohle Cafe".
MS THABETHE: And he says he didn't join the crowd when it moved ...
MR MALAN: No, then he continues to say "I moved back to my house", but here he does not share that part of his knowledge of hearing the crowd and of joining them, before the act. The evidence here is his only involvement is hearing the screaming, he goes out and on reaching them, they had already performed the act of killing?
MS THABETHE: Mr Honourable Committee Member, I agree with you that he gives a totally different version today, but I wanted to make my submissions with regard to what was said in court, that to me it does not appear that the applicant as you have put it, seems to be involving himself. The way I read it, even in court, he doesn't seem to be involving himself because he says he heard them talking and then he says when they went away, he did not join the group, he went back home, and to me that does not mean he associates himself to what was happening there. That was my point, not that I am saying he is saying the same thing he said in court.
CHAIRPERSON: We've got your point.
MS THABETHE: Yes, just to proceed Mr Chair. My submissions are that from the evidence that was led today, the applicant associates himself because at some point, I am not sure whether it was during cross-examination, he says when he heard the group from his house, he went outside and he could see that they were going towards Mr Moeng's house, and then he made a decision, I submit to join that group.
I remember a question was asked, I think by Honourable Mr Malan, as to him to clarify exactly what took place, and he says he went to the group and the group, when he arrived there, they were still pouring and setting him alight. I didn't hear him to be saying they had finished committing the murder on him and that way I would submit that by going there and joining the group, knowing that they were going to Mr Moeng's house, and by the fact that he went there and found the group in the process of pouring petrol and setting him alight, he was involved and it can be said that he participated for common purpose.
CHAIRPERSON: Are you saying if we read paragraph 5 of the statement, other than the words that he did that by pouring the petrol, but he was able to even get closer, that is the association you are speaking of with the correction he made in respect of paragraph 5?
MS THABETHE: My submission Mr Chair, yes, would be that he indicated that he went there and joined the group and when he joined the group, they were pouring petrol and setting him alight. He had the intention, that way associating himself with what was happening there. The evidence wasn't that when he arrived and joined the group, they had already finished pouring the petrol and setting him alight, making him maybe an accessory after the fact.
CHAIRPERSON: No, it wouldn't be an accessory after the fact.
MS THABETHE: Whatever. Whatever, I am indebted to you, Mr Chair.
CHAIRPERSON: Thank you.
MS THABETHE: Yes. So my submission would be it makes him to be associated to what was happening there, and therefore he was personally involved for purposes of common purpose. Those are my submissions, Mr Chair, unless the Committee Members want me to respond to something, I have no further submissions.
CHAIRPERSON: Mr Malan? Mr de Jager? Thank you Ms Thabethe.
MS THABETHE: Thank you Mr Chair.
CHAIRPERSON: Any reply Mr Moloto?
MR MOLOTO IN REPLY: Mr Chair, my short reply is that I am agreeing totally with the last submissions by my colleague in that at all material times and for all intends and purposes, the applicant had a common purpose to commit the crime
together with the mob, and therefore he qualifies for the amnesty because he did a full disclosure along those lines. That is my reply so far, Mr Chair, thank you.
CHAIRPERSON: Ms Vilakazi argued that before we can look at full disclosure, we must transpose what he said to us here and that she referred to his credibility and if there are doubts about his credibility, then there is no full disclosure.
MR MOLOTO: Mr Chair, I've got a problem as to whether should the applicant prove his case beyond reasonable doubt or on a balance of probabilities, because the question of credibility cannot be over-emphasised. It can be taken into consideration Mr Chairman, but it cannot overshadow all other aspects of the whole version of the applicant. There might be some discrepancies here and there, forgetfulness, a long time that the event has happened, inability of the applicant to clarify some other issues due to some other reasons, that should not overshadow and be over-emphasised in this matter, Mr Chairman. That is my submissions.
CHAIRPERSON: Anything?
MR MALAN: I think just for the purpose of the record here, that a full disclosure is by necessity a truthful disclosure, would you agree with that?
MR MOLOTO: I agree with that, Mr Chairman.
CHAIRPERSON: Thank you Mr Moloto. This would conclude the application of Mr Chidi. Once more, on behalf of the Amnesty Committee, we thank Mrs Moeng to have found it in her heart to open the wounds she suffered in 1986 to come here before the Committee and show her confidence in the Committee, that she would abide by the decision which the Committee would eventually reach. We know it was a painful exercise and for you to come back again for us to open those wounds, takes great courage, we thank you for that, Mrs Moeng. The Committee will reserve its decision, it will be made known to all interested parties in due course, thank you very much.
MS THABETHE: Thank you.
CHAIRPERSON: We shall adjourn for lunch for 30 minutes, thank you.
COMMITTEE ADJOURNS
