CHAIRPERSON: We are here for the rest of the week and have various hearings to attend to. This morning we'll be commencing with the hearing of Mr Hendrik Rakgotho. The proceedings will be translated and if you wish to benefit from the translation, you must be in possession of one of these devices to fully understand the proceedings. So if you don't have one, I'm sure one will be available from the sound technician who is in the hall here. Before we start I would like to introduce the Panel to you. On my right is Adv Sandi. Mr Sandi is a member of the Amnesty Committee of the Truth and Reconciliation Commission and he is an advocate and he hails from East London in the Eastern Cape. On my left is Mr Wynand Malan. Mr Wynand Malan is a Commissioner on the Truth and Reconciliation Commission and is also a member of the Amnesty Committee and he comes from Johannesburg and I am Selwyn Miller, I'm a Judge of the High Court, also from the Eastern Cape attached to the Transkei Division of the Court there. I'd also at this stage kindly request the legal representatives to place themselves on record.
MR RICHARD: Thank you Chairperson. My name is Tony Richard, I'm for the applicant.
CHAIRPERSON: Thank you Mr Richard.
MR MOKOENA: Thank you Mr Chairman. I'm Mr Mokoena from Ntuli, Noble and Spoor. I'm representing the victims.
CHAIRPERSON: Thank you Mr Mokoena.
ADV STEENKAMP: Thank you Honourable Chairman. My surname is Steenkamp, I will be the Evidence Leader in this matter.
CHAIRPERSON: Thank you Mr Steenkamp. Mr Richard are you in a position to proceed with your client's application?
MR RICHARD: I am Chairperson. I would point out that the record has some defects in that the Judgment is hardly useful, but I will proceed nonetheless.
CHAIRPERSON: Yes, I notice that the Judgment deals mainly with the other accused persons in that trial save for mentioning the applicant, it's of very little use at all.
MR RICHARD: Thank you. There are also some defects in the application. I don't believe the requirement of bona fide support of a political party or a political pursuit is established on the papers, but I will attempt to cure that in evidence.
CHAIRPERSON: Thank you, Mr Richard.
ADV STEENKAMP: Mr Chairman, if I may be so bold to interrupt, if you would allow me? I just want to place on record, with reference to Section 94 of the Act, you will see in the application of the applicant, there are numerous names of people being implicated as well as people being referred to as victims. For the record, Honourable Chairman, Members, I have spoken this morning to the Investigator, Capt Johannes Moema. He informed me that all the people who are implicated, specifically the names appearing on page 9 of the bundle, I mean, were notified and the Chairman, Mr Koos Mpela, apparently was notified in person. One of the victims in this matter a Miss Mohana, unfortunately passed away recently but as far as the victims are concerned, they were all informed. Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr Steenkamp.
MR MALAN: Mr Steenkamp, may I just inquire? So you were informed by Moema, do you have returns of service?
ADV STEENKAMP: Mr Chairman, I received some of the returns of service this morning. I have checked that again with him. The original returns of service of at least more than half of the people, I received this morning. He indicated to me this morning that if necessary he can come to the hearing and if necessary give testimony to the effect, or he can supply us with the original documents as well.
MR MALAN: If you can just get him to forward it to you and let us have copies of all.
ADV STEENKAMP: I'll do so. Thank you Chairman.
MR MALAN: Thank you.
CHAIRPERSON: Thank you. Mr Richard, do you wish your client to be sworn in?
MR RICHARD: I call my client and ask that he be sworn.
CHAIRPERSON: Thank you.
HENDRIK RAKGOTHO: (sworn states)
CHAIRPERSON: Thank you. Mr Richard.
MR RICHARD: Thank you Chairperson.
EXAMINATION BY MR RICHARD: ...so the other two ladies, Elizabeth and Johanna, why were they attacked?
MR RAKGOTHO: Because the deceased said they were assisting her with witchcraft.
MR RICHARD: Now when did you first suspect Mrs Masomela of being a witch?
MR RAKGOTHO: A day before ...(no sound)
CHAIRPERSON: ... to repeat, we had a cut, we just heard the day before, that's all.
MR RAKGOTHO: A day before the attack, we found her in the street. It was at night.
MR RICHARD: And what was she doing?
MR RAKGOTHO: She was sprinkling water in the street.
MR RICHARD: And what would sprinkling water in the street do?
MR RAKGOTHO: When asked about this she said she was stopping the members of the ANC not to go to their meetings.
MR RICHARD: And what else did you think her witchcraft could do?
MR RAKGOTHO: We were supposed to overturn in our cars on our way to the meeting.
MR RICHARD: Anything else?
MR RAKGOTHO: She was against the leadership of the ANC and the Government of the ANC.
MR RICHARD: What did she support?
MR RAKGOTHO: I do not know which organisation she supported.
MR RICHARD: Now once you saw her sprinkling water, let me just go back a bit. Who saw her sprinkling water?
MR RAKGOTHO: It's myself and Mr Koos Mpela.
MR RICHARD: And then what did you do with this bit of information?
MR RAKGOTHO: We confronted her and we asked her what she was doing and she told us that she was trying to stop members of the ANC to go to the meetings of the ANC.
CHAIRPERSON: Sorry, Mr Rakgotho, did you confront her then and there at the spot where you saw her sprinkling the water, or did you confront her at a later stage?
MR RAKGOTHO: We confronted her immediately on the spot.
MR RICHARD: And she gave you this information that she wanted to deter or prevent or impede or otherwise stop people going to the ANC meetings?
MR RAKGOTHO: That is correct.
MR RICHARD: But now what did you and Koos do after you'd had this information? Did you organise anything? Did you tell anyone else?
MR RAKGOTHO: We called a meeting and we explained to the people at the meeting and we agreed that we would take her so that she gives us her herbs. It was decided that not the whole group would go, just a few of us.
MR RICHARD: And which was this smaller group? Who was in it?
MR RAKGOTHO: Five of us went.
MR RICHARD: Do you remember their names?
MR RAKGOTHO: Stephina Monareng, Oupa Makoena, Andries Manyala and Master Matlewane and Hendrik Rakgotho, myself, Hendrik Rakgotho.
MR RICHARD: Now where did the others - what did the others do when you were going to get Mrs Masomela?
MR RAKGOTHO: They stayed behind where the meeting was held. I do not know what happened after we left, but the five of us left.
CHAIRPERSON: Sorry, Mr Richard. Mr Rakgotho, this meeting, was it a meeting of the Civic Committee or was it a public meeting attended by inhabitants of Mathempulo?
MR RAKGOTHO: It was a meeting of the whole community.
MR RICHARD: Now, how many people were at the meeting, about?
MR RAKGOTHO: I would say the whole village was there. I would not say the number, but the whole village was there.
MR RICHARD: There were 600 people in the village, were there one hundred people there, six hundred people? You don't have to be precise, if you're out a bit it doesn't matter.
MR RAKGOTHO: There could have been more than a hundred, maybe 150, 160 would do.
MR RICHARD: Now when the five of you left the main Committee and the meeting, what did the rest of the citizens of the village do?
MR RAKGOTHO: I do not know what happened with those who were left behind, because the five of us left the meeting.
MR RICHARD: Now did a whole lot of people leave, or just the five alone?
MR RAKGOTHO: The five of us left and the other group remained behind.
MR RICHARD: So did anyone follow you to Mrs Masomela's house?
MR RAKGOTHO: It was quite after some time that they followed us, they followed us Sir.
MR RICHARD: How many followed you?
MR RAKGOTHO: When we went outside, the yard was full of people.
MR RICHARD: Thank you. Now, what did the five of you go to do? What was your intention? When you got to Mrs Masomela's house, what were you hoping to achieve and to do?
MR RAKGOTHO: We were going to ask her to release the baboons so that we can have them.
MR RICHARD: Had any of you seen a baboon there before?
MR RAKGOTHO: No, Sir, nobody among us saw the baboons, but she told us that she had baboons.
MR RICHARD: Now when did she tell you that she had baboons?
MR RAKGOTHO: When we confronted her sprinkling water in the street, she told us that she had baboons also.
MR RICHARD: Any tokoloshes?
MR RAKGOTHO: Yes.
MR RICHARD: Now, did you intend to kill her?
MR RAKGOTHO: No, we did not intend killing her.
MR RICHARD: Now the five of you, you got to her house ahead of the crowd of people that filled the yard, did you speak to her alone at her house?
MR RAKGOTHO: Yes, we spoke to her, she was in her house.
MR RICHARD: And what did she say to you when confronted with the allegations against her?
MR RAKGOTHO: She told us that a baboon and a tokoloshe were in the house and she called them by their names, but they could not get out.
MR RICHARD: And for how long would you talk to her?
MR RAKGOTHO: It's an estimate of half an hour.
MR RICHARD: And then what made you decide to go outside and to leave?
MR RAKGOTHO: We were inside the house and there was a smell of petrol, seemingly the house had caught fire and we decided to get out.
MR RICHARD: And what was burning?
MR RAKGOTHO: It's a shack built of wood.
MR RICHARD: Now when you got out ...(intervention)
CHAIRPERSON: That's not the house? Is that an outside shack or are you referring to the house in which you were together with the deceased as the shack?
MR RAKGOTHO: I was referring to the "zozo" that was outside.
MR RICHARD: And that's separate from the house where you had had this interview with the deceased?
INTERPRETER: The interpreters did not get Mr Richard's question.
CHAIRPERSON: The question was, that shack that was burning, is that separate from the house in which you were with the deceased?
MR RAKGOTHO: Yes, they were separated.
MR RICHARD: Now, did Mrs ...(intervention)
MR MALAN: Sorry. Whose shack was this that was burning?
MR RAKGOTHO: It was her shack.
MR MALAN: Was there anybody in the shack, living in the shack?
MR RAKGOTHO: There was nobody in the shack, Sir.
MR MALAN: Thank you.
MR RICHARD: Now do you know who set the shack on fire?
MR RAKGOTHO: We were inside the house. I do not know who set the shack on fire.
MR RICHARD: Now how many people were outside in the yard?
MR RAKGOTHO: The yard was full of people. There were more than 150, 160.
MR RICHARD: Did you recognise people in the crowd?
MR RAKGOTHO: I could not recognise who these people were because we went outside and it was just chaos outside.
MR RICHARD: Now ...(intervention)
ADV SANDI: Sorry Mr Richard. I don't know, maybe you'll be asking him a question on something else. What was this chaos about? You say there was chaos outside.
MR RAKGOTHO: I'm referring to the people who were occupying the yard outside.
MR RICHARD: What were they doing?
MR RAKGOTHO: They were chanting.
MR RICHARD: What did they want?
MR RAKGOTHO: They wanted a baboon and a tokoloshe. They said she must produce them.
MR RICHARD: And what did she say?
MR RAKGOTHO: She told them that they were many and they would not get out. Had we been just few, they would get out.
MR RICHARD: Did she try and - did she realise she was in danger?
MR RAKGOTHO: I think she realised she was in danger.
ADV SANDI: Did she say where she was keeping these baboons? Was that in the shack, in the house? Where exactly was it on the premises that she was keeping these baboons?
MR RAKGOTHO: According to what she told us, they were in the house. She called them by their names while we were still in the house.
MR RICHARD: What were their names, do you remember?
MR RAKGOTHO: I do not recall their names. I was also scared myself.
MR RICHARD: Now the crowd outside ...(intervention)
MR MALAN: Just before you proceed to the crowd, you say she was then talking to the crowd outside, they were asking for the baboons to be delivered, for the tokoloshes to be delivered, while she was talking to them ... Sorry, I did not get that interpretation.
INTERPRETER: The interpreters requested the witness to wait for the question first.
MR MALAN: Now the question is - well let me rephrase it, let me start at the beginning. I understood you to be saying that the crowd was outside, it was chaos, you didn't recognise any of them because of the chaos, all the people chanting, yet you told us that she then talked to the crowd and she told the crowd there were many baboons inside, she called them but they wouldn't come. Now where was she standing when she talked to the crowd when they were chanting?
MR RAKGOTHO: She was not talking to the crowd outside, she was speaking to us, the people who were inside the house.
MR MALAN: Well, I have a different note here but I will leave it at that.
MR RICHARD: Did she talk to the crowd?
MR RAKGOTHO: No, she talked to those of us who were inside.
MR RICHARD: Could anyone from the crowd outside hear or know what you were talking about?
MR RAKGOTHO: No, Sir, they would not because they were singing and chanting outside.
MR RICHARD: Thank you. Now the crowd outside, what were they chanting? What were they asking for? What were they singing?
MR RAKGOTHO: They were saying: "Let the baboons get out. Let the Tokoloshes get out. We want them. We want them."
ADV SANDI: What time of the day was it? In the morning, in the afternoon, at night?
MR RAKGOTHO: It was at night, but I do not recall what time it was. I did not have my watch.
MR RICHARD: Now ...(intervention)
MR MALAN: Sorry, just before you proceed. Was it the night, the same night that you met her on the street, or was it the next night?
MR RAKGOTHO: It was the night of the following day.
MR MALAN: Thank you.
MR RICHARD: Now, ...(intervention)
ADV SANDI: Sorry, Mr Richard. Were there any lights in the area? What was the level of the visibility?
MR RAKGOTHO: There were no lights, Sir.
ADV SANDI: Thank you.
MR RICHARD: Thank you. Now the fire that was burning in the zozo, did that light up the scene?
MR RAKGOTHO: Yes, but the effect was not that of lights.
MR RICHARD: Now at what stage in this ...(indistinct) and this commotion, did the deceased leave the house?
MR RAKGOTHO: She left the house with us. She went out with us.
MR RICHARD: Did she leave the house voluntarily, or did anyone help her out?
MR RAKGOTHO: She voluntarily left the house.
MR RICHARD: And ...(intervention)
ADV SANDI: You'll have to explain that to me. What did she say? Did she say: "I want to go with you"? How did that happen? How did it come about that she just volunteered to go with you?
MR RAKGOTHO: We requested her to leave with us.
MR RICHARD: Did she have a choice?
MR RAKGOTHO: She had a choice.
ADV SANDI: Did you say to her: "You have a choice, if you want to come with us please come, but if you don't want to, don't come"?
MR RAKGOTHO: No, we did not, we just requested her to leave with us.
MR RICHARD: Thank you. Now, ...(intervention)
MR MALAN: Just on that point again. If she had refused, what would have happened?
MR RAKGOTHO: We were going to beg her until she agreed. She knew us, we stayed together in the village.
MR RICHARD: Now, once she was outside the house, what happened to her?
MR RAKGOTHO: The "zozo" was still burning and I pushed her towards the "zozo" and she turned, trying to run away and she was hit by a stone and she fell.
MR RICHARD: And then? What next?
MR RAKGOTHO: And the fire caught her and she was burning.
MR RICHARD: Had somebody thrown petrol on her?
M RAKGOTHO: Yes, somebody poured petrol on her. I think it's Stephina Monareng.
MR RICHARD: Do you know who threw the stone?
MR RAKGOTHO: I do not know who threw the stone, the stone came from my back. I could not see who threw it.
MR RICHARD: And how many stones were thrown at her?
MR RAKGOTHO: That is - the stone that hit her, is the only stone that I could see.
MR RICHARD: Were any other instruments or weapons used to assault her?
MR RAKGOTHO: Beside the stone, there was no other instrument used.
MR RICHARD: Did anyone throw car tyres or anything else on her, once she was burning?
MR RAKGOTHO: No, Sir.
MR RICHARD: Now the crowd, what do you think the crowd believed she was?
MR RAKGOTHO: They thought she was a witch because she had confirmed it already that she was one.
MR RICHARD: And what do you think ...(intervention)
MR MALAN: Just before you proceed. But who told the crowd? She never spoke to the crowd, how could they have had that idea if she never had spoken to them?
MR RICHARD: We left them at the meeting, that's where they knew that she was a witch.
MR MALAN: In other words, you told them that she was a witch?
MR RAKGOTHO: That is correct, we told them.
MR MALAN: Did the whole crowd believe it?
MR RAKGOTHO: Yes, the whole crowd agreed that she was a witch according to the explanation.
CHAIRPERSON: Yes, Mr Richard.
MR RICHARD: Thank you. Now what did the crowd think she used her witchcraft to do?
MR RAKGOTHO: The crowd thought that this person was using her witchcraft to kill their enemies and their children. All these people would be travelling in the cars taking people to the meetings of the ANC.
MR RICHARD: Now tell me, what's the highest standard that you passed at school?
MR RAKGOTHO: I passed standard two.
MR RICHARD: Now do you believe in witchcraft?
MR RAKGOTHO: Yes, I do.
MR RICHARD: And in the village, what's the general opinion of witchcraft? Do people believe in it?
MR RAKGOTHO: They still do, even today because people died mysteriously.
MR RICHARD: Now the people who died mysteriously, did they belong to any political party?
MR RAKGOTHO: Yes, they were members of a political organisation.
MR RICHARD: Which one?
MR RAKGOTHO: ANC.
MR RICHARD: Now which people had died mysteriously? What were their names, do you remember?
MR RAKGOTHO: I recall one.
MR RICHARD: Do you remember that one's name?
MR RAKGOTHO: It's Billy Makofane.
MR RICHARD: Now you describe his death as mysterious. Why did you think his death was mysterious?
MR RAKGOTHO: We were with him in the day, she was well, she did not indicate that she was sick in any way and the next morning when we woke up we were told he is dead.
MR RICHARD: Did any ...(intervention)
ADV SANDI: Sorry Mr Richard. Anyone else who died mysteriously and then give us the name?
CHAIRPERSON: No he said he can only remember that one.
MR RICHARD: Do you remember any others, besides Billy?
MR RAKGOTHO: I recall these two and there's also a Findane woman, she also died and she was well, she was not sick at all.
MR RICHARD: And what was mysterious?
MR RAKGOTHO: Billy's parents - we heard from Billy's parents that he had been bewitched.
MR RICHARD: Now did you investigate why they believed that?
MR RAKGOTHO: We investigated that from Billy's parents.
MR RICHARD: Now other than the three women whose names I've mentioned, have there been any other incidents in the two year or three year period before Violet was murdered, that other witches had been killed in your area?
MR RAKGOTHO: No, Sir, that's the only incident.
MR RICHARD: I don't think I need to lead evidence on the Northern Province's ...
CHAIRPERSON: We are acquainted with that, not in great detail, but we are certainly aware of it.
MR RICHARD: Thank you. I won't go into any further detail. The name Solomina, does that mean anything to you?
Don't know it. Bladfontein.
CHAIRPERSON: What's that last name Mr Richard?
MR RICHARD: Bladfontein, the name of another village. Do you think that - my last question - do you think that Violet Masomela had damaged the ANC?
MR RAKGOTHO: Yes.
MR RICHARD: Now, the other two ladies, after Violet was killed, what happened to them?
MR MALAN: Sorry, just before you proceed. Is he applying for amnesty for any of the other?
MR RICHARD: The amnesty application only relates to the death of Violet Masomela, but for completeness I thought I should - the attacks on Johanna and Elizabeth, when did they take place?
MR RAKGOTHO: They were attacked on that day, September 26th and the day of Violet's death.
MR RICHARD: Was it before or after Violet was killed?
MR RAKGOTHO: It was before she was killed.
MR RICHARD: No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Thank you Mr Richard. Mr Mokoena, do you have any questions that you would like to put to the applicant?
MR MOKOENA: Honourable Chairperson, I wanted to ask for a short adjournment just to clarify some issues from the evidence, Chair.
CHAIRPERSON: Yes, certainly. Do you want to just have a brief consultation with your clients?
MR MOKOENA: That's correct.
CHAIRPERSON: Yes. We'll take a short adjournment. Mr Mokoena if you could let us know as soon as you're ready to proceed and then we'll carry on. I think it's a little bit too far from lunch to take lunch at this stage. Thank you. We'll take a short adjournment now.
COMMITTEE ADJOURNS
ON RESUMPTION
HENDRIK RAKGOTHO: (s.u.o.)
MR RICHARD: With the Committee's leave, may I ask two questions more?
CHAIRPERSON: Certainly Mr Richard.
FURTHER EXAMINATION BY MR RICHARD: Sir, the family of the deceased are present in the room here. Is there anything that you would like to say to them?
MR RAKGOTHO: I have nothing to say Sir, except to ask for forgiveness from them.
MR RICHARD: I didn't hear the translation.
CHAIRPERSON: The translation was: "I have nothing to say. I ask for forgiveness from them".
MR RICHARD: Thank you. No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Mr Mokoena, do you have any questions you'd like to put?
MR MOKOENA: Honourable Chairperson, I have just received new instructions to the effect that I should not proceed because the family, or rather the victims, have already forgiven him and they have themselves reconciled with him, so my specific instructions are not to oppose the application and if that ...(indistinct) the Committee, I'd also like to refer Chairperson, the Committee to page 19 where there is a statement by one of the victims, Joseph Nkodo Ngwenya and my request therefore Honourable Chairperson, is to have the statement withdrawn since we are no longer going to oppose the application.
NO QUESTIONS BY MR MOKOENA
CHAIRPERSON: Thank you Mr Mokoena. Mr Steenkamp, do you have any questions that you would like to put?
ADV STEENKAMP: I have no questions thank you Chairperson.
NO QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: There's obviously no re-examination, but I'd just like to ask my Committee members if they would like to put questions. Mr Sandi, do you have any questions you'd like to put?
ADV SANDI: No questions, Chairman, thank you.
CHAIRPERSON: Mr Malan, do you have any questions you'd like to put?
MR MALAN: I just want to ask a question or two. Mr Rakgotho in your statement, your handwritten statement appears from page 10 in the bundle, you said you can read, if I understand you correctly. It is - there's a typed version which commences at page 5. Do you have that before you?
MR RAKGOTHO: Yes, I have this before me.
MR MALAN: Now, if you could look at page 6 of your statement, specifically referring you to paragraph 14, you mentioned some other names, but in paragraph - you gave us five names of people who went with you to fetch the deceased at her home. In paragraph 14 you say that six persons went out and you have other names there of some of them, I think three names are the same, but you say you brought her to the meeting. Why did you say that? You see in the third line of paragraph 14 you say: "The committee members went to take her from her house and brought her to the meeting."
CHAIRPERSON: And then again later.
MR MALAN: You say it again later down. She agreed to come with you. Then in paragraph 15 you say: "At the meeting, she was questioned by the Committee" and in paragraph 16 you said: "She agreed in front of the crowd that she was a witch" and then in paragraph 17 you give a picture there of going back to her home and that when you got to her home, the crowd started to burn her hut, they were singing these freedom songs, they started to stone her and beat her with sticks and pangas. Now which story must we believe? The one in your statement or the one that you told us today?
MR RAKGOTHO: Can I ask a question Sir?
MR MALAN: Yes, sure.
MR RAKGOTHO: Believe the written statement at the beginning where it begins and it's been a long time since I was in jail and many things that took place on that day, just left my mind.
MR MALAN: Yes. I can understand that one can forget some things, it's 10 years ago that this happened, but when visited in jail as you say by Mr Molapo, you made a statement that the deceased was fetched from her house, brought to the meeting, that she publicly confessed to being a witch, that she was then taken back to find the baboons and the Tokoloshe and that when you got back to her home, she was stoned, beaten with sticks and pangas. Why did you say that when you made this statement?
MR RAKGOTHO: I did not mention that she was hit with sticks and pangas. Those were not my words.
MR MALAN: Did you mention that she was fetched from her home and taken to the meeting and questioned by the meeting? Are those your words?
MR RAKGOTHO: Yes, those were my words.
MR MALAN: Did it happen?
MR RAKGOTHO: Yes, we took her from her house, we went to the meeting, from the meeting we went back to the house.
CHAIRPERSON: But now you - when you were giving evidence a short while ago, you said that you were inside the house talking to her and then you smelled the smell of petrol and you requested her to come out of the house with you, which she did, and when you got out of the house there was the whole hug crowd of people, plus minus 150 of them, one of whom threw a stone and hit her on the head causing her to fall and then Stephina came, poured petrol and the deceased was then burned to death. You didn't mention anything about going back, in fact you gave the version that you left the house with her and immediately the problem started because I think you said you tried to push her towards the burning shack or something. Now you're saying that you took her from the house to the meeting and then from the meeting back, so what is the position?
MR RAKGOTHO: Take the version of taking her from her house to the meeting, from the meeting back to the house and she was in the house when she was trying to take them out and we smelled petrol.
MR MALAN: May I just follow up? You say in your application, this is on page 2 of the bundle in (iv) there, the top half of the page. That's a response to question 9(a)(iv) that it was not your intention to kill her. Is that true?
MR RAKGOTHO: That is true.
MR MALAN: So why did you take her out of the house and why did you push her to the burning shack?
MR RAKGOTHO: It's because we smelled petrol and I pushed her towards the fire to threaten her. I thought she would pack those things out, the things that the people wanted.
MR MALAN: So there was no intention to kill her?
MR RAKGOTHO: No, it was not to kill her.
MR MALAN: Now will you again look at your statement on page 7 paragraph 19, the last sentence you say: "The order was given by Chairman Koos Mpela". This refers now to the burial. Is that true?
MR RAKGOTHO: It's true. Koos Mpela gave an order. He said we must threaten her so that she can pack out those things, but we should not kill her.
MR MALAN: Now you also, if you go back to page 3 of the bundle, responding to question 11(a), you say Koos Mpela who was your Chairman, ordered you to kill her. Is that correct?
MR RAKGOTHO: No, this is not correct. I never said he ordered us to kill her. He ordered us to threaten her.
MR MALAN: Okay. Now who filled out your application which you have on pages 1, 2, 3 and 4? Did you do that?
MR RAKGOTHO: I requested a certain gentleman in prison to assist me with the writing because I cannot write English.
MR MALAN: Can you read English?
MR RAKGOTHO: I can read just a little bit, but most of the parts I do not understand.
MR MALAN: Now who was this gentleman that assisted you?
MR RAKGOTHO: His name is Joseph Matsimela.
MR MALAN: Did he have knowledge of this incident or did you tell him what to write?
MR RAKGOTHO: He did not know about the incident because he does not come from my village. I told him what to write.
MR MALAN: Now why would he have written that Koos Mpela gave the order to kill, if you did not tell him?
MR RAKGOTHO: Maybe he did not understand me well, because I told him that Mpela's order was that the woman should give us a baboon and a tokoloshe.
MR MALAN: You see, my attention has just been drawn to the paragraph that I earlier referred you to on page 2 (iv) of question 9(a). There too you say Koos Mpela gave the order to kill Mrs Violet Masomela. You see that? That's the third last line of (iv).
MR RAKGOTHO: I can see here, but I can't write and the order that Mpela gave to us was to threaten and that's what I told the gentleman to write here.
MR MALAN: You told him that on two occasions and twice he writes kill. Why would he do that if you didn't tell him? Can you explain it to us?
MR RAKGOTHO: When he was writing he was in his cell and he gave me the papers early when the doors were unlocked, we did not share a cell.
MR MALAN: Can you just explain to me, why were you not charged with the other Committee members? Did you escape at some stage?
MR RAKGOTHO: No, I did not escape.
MR MALAN: Do you know why the trials were separated? Why were you separately charged?
MR RAKGOTHO: I was arrested in Hammanskraal during the trial so that's how it came about that the cases were separated.
MR MALAN: No that can really not be because you were listed in the original trial as accused number 8, so you must have been arrested before that trial commenced. Can you remember?
MR RAKGOTHO: I don't understand your question.
CHAIRPERSON: You see Mr Rakgotho, when there is a criminal trial in which there is more than one accused person standing trial at the same trial, they give the accused persons who are standing trial a number usually, the one first on the list is referred to as accused number 1 and the second as accused number 2 etc. and in this trial, according to what we have before us, there were a whole lot of accused persons. I can't remember the exact number, 12 or 13, somewhere around there, of which you were accused number 8. Now they would not include a person on the list of accused in the Court papers, unless that person was before the Court. They wouldn't just put a suspect who hasn't been arrested yet as an accused person, so you were actually an accused person, at the same time as the other co-accused for a while at least, but your trials were separate. Now what Mr Malan wants to know is, how did it come about that the trial of your co-accused was dispensed with, without your matter being dispensed with and you were dealt with on a separate basis.
MR RAKGOTHO: We were given bail. Now while we were still busy with the trial, I was arrested in Hammanskraal and they proceeded with the trial and the case was handled and after I completed the charges that were laid on me in Hammanskraal, I reappeared in Court. I was arrested and I was found guilty, but then this surprised me because the others were set free.
MR MALAN: Thank you.
CHAIRPERSON: Just one question Mr Rakgotho, you've mentioned to us here about what happened the night before the deceased was killed, namely that you came across her sprinkling water in the streets and that she told you that she was doing this to bewitch people from attending ANC meetings. Why didn't you make any mention of that in either your application form or in the subsequent statement which is included in these bundles?
MR RAKGOTHO: I think I explained to my scribe everything. Well we did not share a cell, but I think I told him and I thought he would write down everything that I told him.
CHAIRPERSON: Yes, thank you. Mr Richard do you have any questions arising out of questions that have been put by members of the Panel?
MR RICHARD: Very few.
RE-EXAMINATION BY MR RICHARD: Sir, I would refer you to paragraph 10 (3) (b), which is the second paragraph on page 3. There the question put to you is
"Your justification for regarding such acts, omissions or offences as acts, omissions or offences associated with a political objective"
There you answered and I go down a few lines:
"That was not my intention to kill anyone, but due to the circumstances, I ended up to kill and I'm not a criminal."
What did you mean by that?
MR RAKGOTHO: I was trying to say we went to Violet not with the intention of killing her, we just went there to ask her to give us what she confessed she had in her house.
MR RICHARD: Now, you've described in your evidence this morning, incidents in and about her house and the adjacent "zozo", now from what we hear now, is it correct to say that what you described was after you'd returned from the meeting and went back to her house? Do I understand you correctly?
MR RAKGOTHO: That is correct.
MR RICHARD: My last question or two is, now we understand it is correct that she was ...(intervention)
CHAIRPERSON: Just on that, so then it follows necessarily that he made a mistake when he says that the five of them were then delegated to go there and they went there and found her at the house, that's a mistake.
MR RICHARD: No further questions.
CHAIRPERSON: I didn't want to stop you Mr Richard.
MR RICHARD: The point is through.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Mr Mokoena, any questions arising?
MR MOKOENA: Honourable Chair, I'm not going to ask any questions.
NO QUESTIONS BY MR MOKOENA
CHAIRPERSON: Thank you, Mr Mokoena. Any questions Mr Steenkamp?
ADV STEENKAMP: No questions thank you Chairman.
NO QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: Thank you. Mr Richard, is there going to be any further evidence? Mr Rakgotho thank you, that concludes your testimony. You may stand down now.
WITNESS EXCUSED
CHAIRPERSON: Mr Richard.
MR RICHARD: I'm ready to argue.
CHAIRPERSON: You've indicated that you won't be calling any witnesses, Mr Mokoena?
MR MOKOENA: That's correct, Honourable Chair.
CHAIRPERSON: Mr Steenkamp?
ADV STEENKAMP: No witnesses thank you Chairperson.
CHAIRPERSON: Yes. Mr Richard, you say you are prepared to make submissions? Thank you.
MR RICHARD IN ARGUMENT: Chairperson, the essence of this matter is whether in terms of Section 20(ii)(a) of the Act, that is the Promotion of National Unity and Reconciliation Act, the act was committed bona fide in furtherance of a political struggle waged by such organisation or movement. The way the evidence has been presented is that the applicant's evidence stands uncontradicted. There's no evidence suggesting that he wasn't a bona fide member of the ANC and then the next question is whether what happened on that night in December 1990, was bona fide and in the furtherance of a political objective.
Now, I've already dealt with it when asking for an indication as to whether I should go into extensive evidence about the belief of witchcraft in and about the Northern Province. My submission there is it is notorious and well-known that the Northern Province has a particular characteristic that its residents do have a strong belief in witchcraft and tokoloshes and the associated ...
CHAIRPERSON: Yes, we know, Mr Richard that there are literally dozens of applications that have been made for amnesty that relate to the so-called witchcraft matters from the Northern Province area. That is a fact, but whether all of them were committed with a political objective etc, that obviously requires an inquiry into each individual matter.
MR RICHARD: And that comes down to ...(intervention)
CHAIRPERSON: We certainly accept witchcraft is common there, particularly in the rural villages, these small villages.
MR RICHARD: It comes to the nub of this particular matter. The applicant stands uncontradicted and the victims' representative certainly didn't challenge it or put any evidence to contradict it, that the deceased was observed sprinkling water and was confronted, was perceived to be a threat to the African National Congress and to have done harm to it and in her own way, been responsible for mysterious deaths. It flows from that that the bona fide and honest subjective perception that the applicant held at the time and on the night of the unfortunate event, was that he and the fellow members of his community were dealing with a person opposed to the pursuits of the ANC at the time and I don't believe that there is any basis upon which the accused's version can be doubted.
He gave a clear ...(intervention)
CHAIRPERSON: What about the fact that he mentions it here for the first time, the political element. I'm just raising it to hear you on this. If one read - well after one had read the papers that were presented, one was left with the impression that this was certainly a so-called witchcraft killing, but the only link with anything political was the fact that there was a meeting that was convened by ANC body, but there wasn't anything else.
MR RICHARD: The applicant was not professionally assisted when completing the forms. The requirements of the Act weren't uppermost in his, or anyone else's minds, when the application was made and the importance of what has been discussed now was certainly not taken into account. As I indicated when I started, I concede that on the papers alone, no case was made out sufficiently. I don't believe it was sufficient to say: "Somebody within the ANC told us to do something" and that wasn't the case presented in oral evidence.
I thinks its particularly relevant to note that the victims have chosen to withdraw their opposition and withdraw the statement which would leave the imprint apparent that his version is accepted and I would further infer that the fact that he has come with an amplified case today, is not a factor that should be taken against him, taking into account the circumstances particularly the circumstance of not being represented when he completed the form. A sea lawyer in prison is hardly representation and I believe that the irregularities and insufficiencies of what happened in the prison should be condoned.
I leave it rest there.
ADV SANDI: Mr Richard, just for my clarity there is no suggestion here that the deceased was a member of an opponent political grouping, vis a vis the political organisation of the applicant. What have you to say about that?
MR RICHARD: The question put to the applicant was, if I remember correctly, was she a member of another political party and the answer is no, it's not the case.
CHAIRPERSON: I think the question was: "Do you know whether she belonged to any political organisation?" His answer was: "I don't know."
MR RICHARD: "I don't know", that's not the case. It's not that she was a local counsellor in the old Kangwane Government, or associated with the SAP in any way directly. The case is that in his mind, she was an opponent of his political organisation in that she was using her witchcraft to damage the African National Congress, for whatever purposes that she might have had. It doesn't necessarily have to mean that she had to be supporting a more conventional opponent of the African National Congress at the time. The ANC was engaged in a political struggle and within the context of (a), her elimination, it is my submission, was bona fide seen as a furtherance of the African National Congress' interests and struggle.
ADV SANDI: And maybe I'm sort of thinking aloud, there has not been a suspicion that she was responsible for the mysterious deaths of those other ANC supporters.
MR RICHARD: The evidence is that Billy's family implicated witchcraft and she is a witch and as a witch is responsible for whatever witchcraft was coursing in that particular village at that particular time.
CHAIRPERSON: Yes, but I think also on the evidence that we've heard today, I think you referred to it as the amplified version, it would seem that on his evidence that the immediate cause for the convening of the meeting wasn't so much Billy's death or that other Findane lady's death, but the sprinkling in the street. I mean, if they hadn't come across her sprinkling water in the street, they probably wouldn't have convened a meeting on that day despite the fact that Billy and Findane lady had died mysteriously sometime before.
MR RICHARD: I think the fact that there had been deaths which were thought to be mysterious at the time and the sprinkling of water, need to be separated, but then seen in the same general context. The question I put was, do you believe that the deceased caused harm or damage to the ANC and the answer was yes. I didn't go to the next one, whether she was responsible for the death of the particular people, but clearly in the context associated.
MR MALAN: May i follow that up? What - can you comment on the following understanding of his evidence, that he had no intention to kill her, he backtracks on the statement or the sea lawyer's statement to quote you that there was an order to kill her, his evidence today is, they smelled the petrol and the burning of the shack, that's the reason why they went out, she voluntarily accompanied them, when asked he said his intention was to assist her to remove some of her things from the shack to save it from the fire and then suddenly the stone from behind and he gives no evidence of his association with the killing. What do we make of that?
MR RICHARD: The evidence that he has given of association with the killing is to combine two separate answers, that he pushed her with the purpose of scaring, intimidating, he does not say he pushed her into the fire, which is consistent with that paragraph 10(b), that he didn't set out with the intention that evening of killing anyone.
MR MALAN: Well I must visit my notes again, but I heard him saying his intention of pushing her towards the "zozo" hut was to assist her in rescuing some of her assets there.
CHAIRPERSON: I think we'd better check. I thought it was to threaten her.
MR MALAN: No, then I accept that.
MR RICHARD: That's what I understood. Now unfortunately on the papers that we have available, it's difficult to know what the learned regional magistrate seems to have decided. "Edelagbare", I infer that it's a Regional Magistrate.
CHAIRPERSON: Yes, I think it says, somewhere I saw it was the Vaalbank Regional Court, or Regional Court at Vaalbank, but I think we don't know what his defence was at the ...I mean he might have come with an alibi, we don't know.
MR RICHARD: I just don't know, but I can only assume on what I do know, that it seems as if there was a use of the common purpose doctrine to secure the conviction, whether it's correct or not correct, I don't dare to venture on the papers that I've been able to read, so I don't think one should infer too much from that record, except that there were three women, all had damage done to their property, one was killed. That's confirmed by the applicant, so clearly there was a witch hunt that particular night. Sorry for that.
CHAIRPERSON: Is that all, Mr Richard?
MR RICHARD: That's - I rest.
CHAIRPERSON: Yes, thank you. We'll have to deliberate on this. We'll reserve our decision. I'd just like to thank Mr Richard, Mr Mokoena, Mr Steenkamp for their assistance in this matter. Mr Rakgotho that brings your hearing to an end. We'll reserve judgment and hand down a decision as soon as possible. Thank you.
MR RICHARD: As the Commission pleases.
CHAIRPERSON: Mr Steenkamp, what is the situation now for the rest of today at least?
ADV STEENKAMP: Mr Chairman, unfortunately I've tried and envisaged to enrol another matter, that of Mr Tshomane, but I've been informed that - I've tried to contact his lawyer again this morning because Mr Tshomane was actually present this morning, but I was told that his lawyer confirmed in writing last week sometime, which will be Ms Cambanis, that she will only be appearing on the 29th, which will be tomorrow morning. I've tried to contact her office and I was informed that she will not be available till the 7th of March but according to her writing which we received in our office in Cape Town, she will be representing Mr Tshomane, unfortunately she will only be able to do it tomorrow morning.
CHAIRPERSON: But has she told us that she'll be ready tomorrow morning?
ADV STEENKAMP: Yes, we've got that in writing, Honourable Chairperson.
CHAIRPERSON: Yes, I know, but we've also got it in writing, didn't you mention about the 7th of March.
ADV STEENKAMP: No, no, I don't have that - I've just spoken to her secretary, that's all I've done.
CHAIRPERSON: Ja, but you see what we don't want is some undertaking in writing that's not going to come about. I mean, you know, is it not possible to find out and if necessary to appoint somebody else to represent Mr Tshomane? The papers are very, very short.
ADV STEENKAMP: Chairman, I've discussed it just briefly with my Learned Colleague. If it's possible, if not, if he can represent her. I understand that Mr Tshomane, I'm not quite sure, but I understand he's not on a private brief or a personal brief, so Mr Tshomane was appearing here this morning. I can't comment on the position of Ms Cambanis. Mr Brian Koopedi was the initial attorney for the applicant.
CHAIRPERSON: Yes, because we certainly don't want the situation that she's not available, as her secretary says, until the 7th of March, because then we won't even be here on the 7th of March.
ADV STEENKAMP: Honourable Chair, I'm in your hands, but if...
CHAIRPERSON: I wonder if we couldn't perhaps sort it out because I'm sure that if that matter does take place, just looking from the documents, it's going to be very short.
ADV STEENKAMP: I would - Ms Cambanis is unfortunately not here, but I'm sure I can ...
CHAIRPERSON: Can't you phone her and see if we can sort something out perhaps during the lunch break.
ADV STEENKAMP: Yes, I'll do that.
CHAIRPERSON: Because it will be very nice if we could dispose of that matter today, if not today, tomorrow morning, because it looks that it won't take a lot of time. I think that is the matter where the victim is unknown.
ADV STEENKAMP: Correct.
CHAIRPERSON: Not identified, so - and it's a question of putting a limpet mine on a railway track type thing.
ADV STEENKAMP: Absolutely, there's no victims. I'm just ... (intervention)
CHAIRPERSON: Perhaps if we could just during the lunch break try to get hold of the person, the attorney, see if we can sort something out. Thank you. We'll now adjourn for lunch and maybe, if possible, come back this afternoon, but if you'll let us know what the situation is. Thank you.
COMMITTEE ADJOURNS
