CHAIRPERSON: I apologise for the late start. We will be commencing our hearings today with the amnesty applications of Messrs M.K. Ngwenya, J.M. Maponyane and M.P. Khubheka. But before we start, I would just like to briefly introduce the Panel to you.
On my right is Judge John Motata. He is attached to the Transvaal Division of the High Court and he is a member of the Amnesty Committee. On my left is Adv Ntsiki Sandi, also a member of the Amnesty Committee. He is an Advocate and he comes from East London. I am Selwyn Miller, I am a Judge of the High Court, attached to the Transkei Division of that court and also a member of the Amnesty Committee.
Before we commence with the applications that I have just mentioned, I would request the legal representatives to please place themselves on record.
Chairperson, I am Vuka Mohlaba, I am an Attorney from Pretoria, I am acting for all the three applicants.
CHAIRPERSON: Thank you Mr Mohlaba.
MR MAPOMA: Chairperson, I am Zuko Mapoma, the leader of evidence.
CHAIRPERSON: Thank you Mr Mapoma. Yes, Mr Mohlaba.
MR MOHLABA: Thank you Mr Chairperson. I will start by leading the first applicant, Ngwenya Chairperson. He will give evidence in English, he will however when necessary, he may require the assistance of a Zulu interpreter.
CHAIRPERSON: Yes, certainly.
MFANAFUTHI KENNETH NGWENYA: (sworn states)
CHAIRPERSON: Thank you. Mr Mohlaba.
EXAMINATION BY MR MOHLABA: Thank you Chairperson.
MR MAPOMA: Excuse me Chairperson, may I just ask Chairperson, just before we start leading evidence, I want to for the record Chairperson, make an announcement regarding the victims in this matter.
CHAIRPERSON: Yes.
MR MAPOMA: I have got here Ms Linda Oosthuizen, who is a sister to the deceased Stephen Oosthuizen. I am going to take care of her interests and the other victims were robbed, that is Mr and Mrs le Krish. I have spoken to Mrs le Krish, she is in Cape Town, she has indicated that she is not going to attend the hearing, the Committee may go on, she leaves it to the Committee.
CHAIRPERSON: Thank you Mr Mapoma. Mr Mohlaba?
MR MOHLABA: Thank you Chairperson. Mr Ngwenya, for the record, may you indicate to the Committee where were you born?
MR NGWENYA: I was born on the 16th of May 1971.
MR MOHLABA: And where?
MR NGWENYA: I was born in Matatine, that is a township outside Newcastle, in KwaZulu Natal.
MR MOHLABA: Can you briefly explain to the Committee where you attended school and your highest standard passed?
MR NGWENYA: I attended school there in Matatine and I finished my matric there.
MR MOHLABA: You are the applicant, you are applying for amnesty and it will be noted in paragraph 9(a) that you are applying for amnesty in respect of robbery with aggravating circumstances, is that correct?
MR NGWENYA: Yes, that is correct.
MR MOHLABA: Early this morning, during our consultation you indicated to me that you were also responsible for the death of Cons Oosthuizen and you have also participated in the attempted murder of Mr Jacobs, is that correct?
MR NGWENYA: That is correct, the three of us participated.
MR MOHLABA: Is it your desire to have those offences incorporated into your application?
MR NGWENYA: Yes, that is our desire.
MR MOHLABA: You are applying for amnesty on the basis that these offences were committed in pursuance to a political objective.
CHAIRPERSON: Sorry Mr Mohlaba, why wasn't an application made in respect of the murder and the attempted murder?
MR NGWENYA: When we filled in the applications, we were of the view that as the TRC fell under the jurisdiction of a Justice Minister, they worked hand in hand with the Justice Minister, so we thought there was a link between the courts and the TRC, so that the evidence that we had to use on our application, we had to use the evidence that was on court records, so basically we used the evidence that appeared on the court records. Because according to the court records, there was not evidence as to the murder, linking us to the murder ...(indistinct), even though we did commit the murder, but there was no evidence. We used the evidence that was on the trial.
CHAIRPERSON: Yes, because we will have to perhaps hear argument on it, because we are a creature of statute, and our jurisdiction is restricted to the powers that are conferred us by the relevant Act, namely the Promotion of National Unity and Reconciliation Act, 34 of 1995. In that Act it says that inter alia, that applications have to be made by a certain date and we don't have the power or authority to condone non-compliance, we don't have an inherent jurisdiction like the Courts have for instance because we are restricted to what is contained in the Act.
I see however, that Mr Maponyane, he has applied for murder and attempted murder, I notice on the form, if one takes a look at page - sorry, I am just trying to find my way around here - page 22 of the papers, Maponyane at least, robbery, murder and attempted murder.
In any event, I just want to raise that, I just mention that, but you can proceed. Mr Khubheka as well, also makes mention of the murder and the attempted murder in his application. Mr Mohlaba?
MR MOHLABA: Thank you Chairperson. In support of your application, you have furnished certain statements to the Investigating Committee, which briefly denies any involvement in the murder of Cons Oosthuizen and the attempted murder of Jacobs, do you still stand by those statements?
MR NGWENYA: No, those statements were not the truth, I don't stand by those statements, they are not the truth. As I have tried to explain, I filled in the forms with the idea, or with the opinion that I have to use the evidence that was on the court records.
MR MOHLABA: You are applying for amnesty on the basis that you were, these offences were committed pursuant to a political objective. Did you belong ...
MR NGWENYA: Yes, I am a supporter of the African National Congress, previously when I was still at school, back home, I was a member of NAYO, which was a substructure of the UDF at that time.
ADV SANDI: Sorry, can you please give us in full, what do you mean by NAYO?
MR NGWENYA: NAYO, it was the Newcastle Youth Organisation.
MR MOHLABA: Did you play any role in this organisation, what part were you playing?
MR NGWENYA: Well, firstly I would start by trying to highlight my first involvement in politics, because in KwaZulu Natal, at the time when I grew up when I attended school, it was the time when we were still taught Inkatha as a subject at school. So now, when I became aware of what was politically happening around me, and what was happening in the country at that moment, I also became part of the people who defied Inkatha as a subject, so that created some enmity between us and the Inkatha, it was still Inkatha YeSizwe, before it became IFP.
There was this conflict between us, UDF supporters or NAYO members, with the Inkatha members.
MR MOHLABA: Can you take us through the incident of the 7th of October 1991, that is the robbery case, how was that planned and can you briefly explain how that was executed?
MR NGWENYA: Yes. We received a hint about this place in Illovo, because we were part of a defence structure in Alexandra, so I live right in front of the hostel, so now we are being attacked, so we never had guns at the moment, we only had small guns.
Jacob came with the plan, in fact his cousin who lived at us in the yard, told us that Jacob has a plan about this particular place, where there are, they once broke into and they found gun safes and ammunition for pump action and some carry bag for rifles.
CHAIRPERSON: Sorry, when you say Jacob, do you mean Mr Maponyane, your co-applicant?
MR NGWENYA: Yes, Mr Maponyane. So we went there, we talked about this and one day when we were five in number, it was the three of us and then it was Elvis and Johnny, they are both deceased now, they died during the violence in Alexandra at that time, we went by Elvis' bakkie. When we went there, we had two guns with us. We had, I had a .32 revolver and Mr Khubheka had a 9mm.
When we reached, we also had knives. When we reached the place, we found four occupants in the house, so we held them up ...
CHAIRPERSON: Sorry, what did you do, did you break into the place?
MR NGWENYA: No, no, we did not break into the place, the door was open, they were just sitting there.
CHAIRPERSON: Was it during the night time or the day time?
MR NGWENYA: Yes, it was dusk, it was about seven o'clock, or it was beginning to get dark. It was not during the day. When we got in there, and then we told them that it is a robbery, we wanted guns.
CHAIRPERSON: Sorry, this place, was it just a residential house?
MR NGWENYA: Yes.
CHAIRPERSON: Yes?
MR NGWENYA: So when, there was a problem now with the safes, because they said they were still looking for, they don't know where they placed the keys for the safe, so we looked and we found the safe keys. I and Mr Maponyane went up with Mrs Le Krish, went up and then, when - because the house is a double-storey, she opened, there were two safes, there was a big safe and a small safe, she opened the small safe. Before she opened the safe, we found a .38 on top of the wardrobe.
She opened the small safe and then we got ammunition in boxes, and we also got a 44 revolver there. Before we could go to the bigger safe, I told Maponyane to go down, because down there we had three guys with four people, three people and one gun, so I told him to go and take one gun to those guys down there.
Immediately after he left, I heard there was some buzzing noise inside the room, inside the room, and then I asked Mrs le Krish "what was that", and she told me that it was a signal, it is a response signal, some sort of, there were people outside, securities or something like that. Then now, I said "okay, let's go out before ...", and then we went out. On our way out, I was going to inform the other guys down "look out, if maybe there are other people here".
So, before I reached the stairs, I saw Jacob coming back now, Maponyane coming back. At the time I saw a flash of a torch outside the house. So now, that is when the shooting started. I heard a shot from outside, so we started shooting. At the time we thought maybe it was the police who was outside, so there was this exchange of fire between us and the security guard who was outside up until the time that we managed to escape the place.
So, on our escaping the place, we met again at the golf course, because the house is next to a golf course, the Wanderers golf course. Four of us met there, it was me, Mr Khubheka, Mr Maponyane and Elvis, the owner of the car. Elvis, at that time he sprained his ankle because he jumped from the double-storey down, he sprained his ankle and then we talked about Johnny, where was he? That was when I also heard the noise, the people who were exchanging fire, were in fact the security guards, not the police, because Elvis had seen them.
So we were concerned about Johnny, because he was nowhere to be seen, so we thought maybe he might have been hurt during the shoot-out, because there was a lot of shooting between us. And then Elvis was also concerned about his car, because the car, where we parked it, it could have set a trail for the police to follow, because it would have linked him directly, the car, because it belonged to him.
So there was this issue that he must try and go back to, go back to the car. So as he was now injured, Elvis, he sprained his ankle, he was limping, so I took the car keys from him. When I took the car keys from him, with the intention that I will go back with Jacob and Khubheka and go and fetch the car, and in the process look for Johnny, maybe I might see him along the way, Elvis was then, he boarded a taxi. We were now at Corlett Drive, so on our way back to fetch the car, we saw a 10111 vehicle approaching us, and then it passed us, but then it made a U-turn immediately after it had passed us, it made a U-turn and came back to us.
When it came back to us, it stopped, there was some sort of a parking there, it was an old road that was closed, now there was a ramp, some sort of a ramp at the street, so they parked the car there, opened up the doors very violently and came up with guns. It happened very fast, the incident.
Because I was next to the guy who was on the passenger side, so when they, they had guns in their hands already by that time, so when they opened the doors, I had the car keys in my hands, I went straight to the guy who, I had a gun in my pocket at that stage, it was empty by then, because I wasted all the shots during the robbery. I knew that he was going to catch, I don't know what made me go to him, but I instinctively I found myself going to him. So when I went to him with the intention that maybe he is going to search me or something like that, and then I heard a shot, a gunshot. Then after that single shot, there was a lot of gunshots now. I ducked, so what I see, what happened next because I was facing the two policemen, I saw the other one fall on the other side of the car.
When he fell down, I also ducked because now, fire was exchanged, I was in the middle. I ducked down, when I ducked down, there was this shooting, this guy also, he was shooting, I saw that he was also hit somewhere in the shoulder, because he cried out and he fell, but he kept on shooting. So when, because the doors were open, I was shielding myself, using the door. I saw now the rifle, because it was placed on the passenger side, down on the floor.
After the shooting has ended, because now there was this noise, cars braking, making U-turns, going back and running back, so I grabbed the R5 and then after I grabbed it, I saw that, I also wanted to take the other guns, but then I was not sure whether these two guys were unconscious or what or maybe they were out of ammunition, so I wasn't able to go and fetch the two guns that they were using, the 9mm that are used by the cops. I had an R5 in my hand by then.
So then the other two guys were nowhere to be seen, the guys that I was with, that is Khubheka and Maponyane. So I fled again and hid the R5 somewhere in the flowers. There were flats there along the road, and then I hid the R5 there, which we fetched later on. I boarded a taxi and then we met again in Alexandra.
MR MOHLABA: Do you know who was exchanging fire with the two police officers?
MR NGWENYA: Yes, the people who were exchanging fire with the two police officers are my co-applicants, Khubheka and Maponyane, because I was with them at the time when we were confronted by the police.
JUDGE MOTATA: And Elvis?
MR NGWENYA: When we went back to go and fetch the car, Elvis was no longer with us, because he had sprained his ankle and then he gave me the car keys. So, we intended that he boarded a taxi back to Alexandra. So when we went back to fetch the car and look for Johnny in the process, we were now three, we were no longer four, because Elvis now was left behind.
CHAIRPERSON: Did you fire with the R5 at all?
MR NGWENYA: At that time?
CHAIRPERSON: Yes?
MR NGWENYA: No, I did not fire with the R5.
CHAIRPERSON: And your, the firearm that you had, had no ammunition?
MR NGWENYA: Yes, it had no ammunition.
JUDGE MOTATA: Thank you, you may proceed Mr Mohlaba.
MR MOHLABA: Thank you Chair. And then you, who were you reporting to, were you members of an establishment and can you name it?
MR NGWENYA: Yes, because of the violence that was taking place there in Alexandra, living right in front of the hostel, seeing people being killed for their political beliefs, because they were not in a way associated with IFP. That was in the early 1990's.
So at that time, we saw what was happening, we were being attacked and then as a community we started organising ourselves. We started organising ourselves, others amongst the community members objected, maybe go seek help from the police, but then we knew that the police wouldn't help, because they were in cahoots with the IFP supporters who were attacking us.
So at nights, at the time when we established ourselves, we only had about three handguns, so at night we used to patrol the area and call meetings where people were asked to participate in the defence either by contributing something or by patrolling at night. So now we have divided ourselves into groups who patrolled the area, so now, the structure, that is how the structure at the area was formed, because already the places, if maybe you might know Alexandra, the places from Roosevelt Street up to London Street, was already inhabited by IFP supporters who were mostly from the hostel, because people who lived there, were already chased out of their residences.
Now, I live at ...
JUDGE MOTATA: No, no before you proceed, just give us an indication, because Alexandra has got 22 avenues, and my recollection of Alexandra, the hostel is right up there somewhere at Fourth Avenue or Third Avenue?
MR NGWENYA: Yes.
JUDGE MOTATA: Now when you speak of the community and saying Selborne and Roosevelt, because those are two streets going down and the Avenues are running across, so we want an indication what would that be then, how do we now say that community?
MR NGWENYA: Okay, the community I am talking about, I live in Third Avenue with Khubheka, at the corner there, so the communities that organised themselves, the communities from the Second up until Fourth Avenues, between Roosevelt and Selborne, because now that was the block now that was being targeted because already the people who lived in the same area, same avenue, Second and Fourth, between Roosevelt and London, were already chased out of their residences because Johnny also lived in Second Avenue by then, he was chased out of his place. So he lived now, he was with us now in Third Avenue.
Those are the people that I am talking about, that is the community I am referring to, who organised themselves.
JUDGE MOTATA: You may proceed, Mr Mohlaba, thank you Mr Ngwenya.
JUDGE MOTATA: Thank you Chair. Having organised yourselves like you explained, what were you calling yourselves?
MR NGWENYA: We were the Self-Defence Unit, because we were defending the community, we were defending our families, our houses, our political beliefs, because that is the main reason why we were being chased, why we were being killed, because of our political beliefs.
We didn't want anything to do with IFP.
JUDGE MOTATA: Are you suggesting that the community, which you have referred to, that is between Second and Fourth Avenue and between the two streets, Selborne Street and Roosevelt, belonged to some political organisation, because you said you were defending yourself against your beliefs from these attackers, whom I take it from your evidence, you are speaking of the IFP.
MR NGWENYA: Yes.
JUDGE MOTATA: Now was this community of Second, Third and Fourth Avenue between Selborne and Roosevelt, belonging to which organisation?
MR NGWENYA: I would say they were members of the ANC and they were members of the Pan Africanist Congress, but then now, why I say we were defending our political beliefs, no one was for the political beliefs of the IFP, because we were all against what they were doing, we were all against their political beliefs per se.
CHAIRPERSON: Were you at all aware that it was not the policy of the ANC to attack civilians, who were not aligned to any particular party?
MR NGWENYA: Which civilians?
CHAIRPERSON: I am talking about the people who were living in the house in Illovo?
MR NGWENYA: That were robbed? We were also aware that as defence structures, we had to take initiatives, so now, with a 9mm and a .32, it was difficult, or it would have been impossible for us for example, to go and rob the police directly with those two guns, so they seemed an easy target, these people, because from what we heard, they had what we were looking for to defend the community.
CHAIRPERSON: Yes, when the SDU's were established, didn't the ANC assist in the establishment by having members of MK going into certain areas, specifically with the objective of arming those people?
MR NGWENYA: Yes, when the SDU's were formed, there was that thing that trained cadres must go and reside in the places that was mostly affected by the violence, so now, at the time, there was a time that we even consulted with the people from the ANC offices in the township, asking for cadres to come and live in our place, because at the time, we had no one. Even though they came at a later stage, by then, we couldn't wait for people which we did not know when are they going to come, whereas we saw that we were being killed.
So it was incumbent upon us to take initiatives.
JUDGE MOTATA: But wouldn't the communities which formed SDU's to protect themselves, collect monies to obtain firearms with those monies, because that was what was required by the community, and in this instance, why didn't you go to the community and say "we just have two and we need more, can't we collect money to acquire more weaponry to defend ourselves", yourselves rather?
MR NGWENYA: Yes, at the meetings that we held when we formed this structure, issues were raised as to contributions, issues were raised as to people participating in the defence. But then, nobody came up and contributed something at that stage, and we also saw, because it was difficult, the standard of living amongst the people, it was even difficult for some families to get in food to feed themselves. So it would have been very strange to expect them to contribute something for the guns as they cannot even buy food.
JUDGE MOTATA: Where did you acquire the two that you had before you saw the need to have more?
MR NGWENYA: The two guns that we had?
JUDGE MOTATA: yes?
MR NGWENYA: For an example, the .32, the .32, it was not the only two guns that we had at the time, because when we left, when we went to Illovo, there were also some few or about two handguns that were left to defend at the time, because it was dusk. There were some people who came and offered some handguns to us to defend.
For an example, the .32 I was carrying, it was brought to another guy who lived in the area, Sibusiso by then, because he couldn't participate actively in the defence, because he was working nightshift most of the time. He donated that gun for the benefit of the defence.
JUDGE MOTATA: Now why couldn't you approach the ANC, their offices and say "look, it is somewhat difficult for ourselves to defend the community without any form of weaponry that we would utilise" and seek assistance from the ANC offices?
MR NGWENYA: Yes, as I have indicated earlier on that they were contacted, where we asked the armed struggle was disbanded by that time, so we asked for the cadres to come and reside in our area, so that, because we knew that cadres, trained cadres have some form of weaponry that they can use to defend the community.
So now by then, if you didn't see anybody coming to reside in our area or you couldn't wait for people which we didn't know when are they going to come, because the need to defend ourselves was pressing, because we were constantly attacked. People were killed.
JUDGE MOTATA: No, no my question is that because now you had asked for some trained cadres to come and reside within your community that was under constant attack and seeing that nobody comes, why couldn't you say "can't you afford us weaponry"?
MR NGWENYA: These things happened, these things happened in a very short space of time, the ANC was contacted, even the SAP were also contacted, where we asked to come and maybe form a satellite police station between the two areas, but then they said they did not have enough manpower. The ANC, the people in the offices knew exactly, they knew our position at the time, they knew the predicament that we were in.
I would have been stupid of us, for an example, if we waited for them to, because we have already asked for help from them, to wait for that help, which did not come, for that particular time, after that time that we asked for help. So, that is why we felt that we have to act to get the weaponry.
JUDGE MOTATA: Was this discussed amongst the community that you had to get firearms for you to be able to defend yourselves. Was this discussed with the community you were protecting?
MR NGWENYA: Not in the sense that, for an example, we used to hold meetings at a church there, where everybody would come, but then we never said we were going to rob some, this place, in such a meeting, because we never undermined the Security Forces, because they might have informers amongst us there, so there were people who knew about this thing amongst the community by then. Not everybody knew about it, because we never trusted everybody.
JUDGE MOTATA: What do you mean you discussed it in a church there, firstly, where is the church situated?
MR NGWENYA: It is in Third Avenue, the Lutheran church. It is in Third Avenue, that is where we held meetings as the community.
JUDGE MOTATA: And where did the other members of the community get the idea or the information that you people were going to rob and obtain arms?
MR NGWENYA: Those that knew about this thing, because when we planned, when we planned this thing, there were some people who were present by then, who did not go with us there, and then when we came back with what we acquired at the robbery and the murder scene, they also saw, they also saw the guns and the ammunition, and we told them that we have robbed these things.
JUDGE MOTATA: No, but you had left your R5 behind, what did you have to show, because you had left your R5 behind?
MR NGWENYA: I left it at that time, because I couldn't board, I couldn't ride on a taxi with an R5. But then, I said, I left it at the time, but we fetched it later, the following day because I hid it somewhere in the flowers.
JUDGE MOTATA: What position did you hold in the SDU's?
MR NGWENYA: Well, there was no, we never formed ourselves for example, in a manner that there was a Chairman, there was a Secretary, something like that. But then, there were people that we knew, that were active, people for example, those would co-ordinate people to come to meetings, those that would check that others were patrolling their areas. There was no person who had a position that meant this person is a Chairman of the structure, this person is the Secretary of the structure. It never happened like that.
JUDGE MOTATA: Now, am I hearing you to say then that the five of you were the people who spoke and decided that you should go and rob this house out at Illovo?
MR NGWENYA: It was not only the five of us. It was not only the five of us. Some other people were present when we talked about this thing, but then they were not there when we went out to the area, because for example Mr Maponyane didn't live in Third Avenue, he lived in 14th Avenue. It is just that in 97 he had relatives, he used to frequent the area.
So now, he told his cousin that used to visit there, about this thing and then his cousin came and told us now that there is someone who says that there is a place where we can get guns, that we can use to defend ourselves.
JUDGE MOTATA: So am I hearing you to say again that the five of you assumed responsibility that because there were no cadres forthcoming or the ANC responding positively, you five took it upon yourself that you would acquire arms to defend your community against the IFP?
MR NGWENYA: Yes, we took that initiative.
JUDGE MOTATA: You may proceed Mr Mohlaba, I am sorry for taking so long.
MR MOHLABA: Thank you. How soon after the incident, were you arrested?
MR NGWENYA: Well, the incident happened in 1991, I was arrested in 1993, although the police, we heard that sometimes they would come there, looking for us, but it was difficult, because it was in a war zone, so it was not easy, people would not give information to the police at that time.
Ultimately we were arrested in 1993.
MR MOHLABA: Do you know whether at a later stage, your request to have MK cadres reside with you in the area or come and assist you in that area, was ever honoured?
MR NGWENYA: Yes, it was, it was. There were people who did come there, some cadres, trained cadres who did come there. They also had some extra guns, who came and resided in the area.
Not necessarily reside, in fact that they were giving some places to stay there, but then they were in the area. They would, for an example, they would sleep in a certain house for today, tomorrow they would be sleeping in a certain place. Those are the people like Skalo, those are the people now who polished our defence, I would call it like that, who polished us now, telling us what positions that, what, for example where should we stay for example. The other group should stay at this point, the other at that point, and then the range of the gun, what gun was effective at what distance, things like that.
MR MOHLABA: Are you saying that once they came in, they acknowledged your existence and you inter-acted with them?
MR NGWENYA: Yes, they acknowledged it. They acknowledged it.
MR MOHLABA: That will be the evidence-in-chief, Chairperson.
NO FURTHER QUESTIONS BY MR MOHLABA
JUDGE MOTATA: Now, who were polished, is it the five of you, because we haven't heard of something further than the five of you? Who did the cadres polish when they came and lived amongst you people there?
MR NGWENYA: The defence structure, the SDU.
JUDGE MOTATA: What, how many were there for instance, I just want an estimation?
MR NGWENYA: Yes, well, I would say people, because when I talk about the SDU, I include all those who were actually involved in patrolling the area at night, things like those, I would say we were about 30 or so.
Others were also arrested for some other incidents, not this one, but involving defence, they were also arrested.
JUDGE MOTATA: Where were you people living, because you say, or I heard you, correct me if I am mistaken, that people had to leave their houses there?
MR NGWENYA: Yes.
JUDGE MOTATA: Where were you people living?
MR NGWENYA: For an example, women and children, we moved them out. If you know 97, and 98, 97 and 98, that is from Second up to Fourth Avenue, that is at the front, women and small children were moved to the back houses, so now the men only were in the defence, resided in that area, because we didn't want them to see that there was now an area that was vacant, because what they did when they saw a vacant house, the IFP, they would come and inhabit that place.
JUDGE MOTATA: What are you referring to when you say 97, 98, I cannot follow?
MR NGWENYA: That is the yards, 97, that is the address, the yards at the front, in front of Roosevelt Street. Those are the yards, when the IFP would start shooting, they would shoot there first.
JUDGE MOTATA: Thank you Chairperson.
CHAIRPERSON: Mr Mapoma, have you got any questions that you would like to put to the applicant?
CROSS-EXAMINATION BY MR MAPOMA: Yes Chairperson. Mr Ngwenya, I understand you were not a member of the ANC? Am I correct?
MR NGWENYA: Yes, I was a supporter.
MR MAPOMA: And you were not a member of the ANC Youth League?
MR NGWENYA: No, I was a member of NAYO.
MR MAPOMA: And there was an ANC structure in your locality?
MR NGWENYA: Yes, there was.
MR MAPOMA: And the Youth Structure of the ANC as well?
MR NGWENYA: Yes, I believe so.
MR MAPOMA: Why did you not join those organisations?
MR NGWENYA: Well, you see, from the experience that I had, in KwaZulu Natal where I grew up, it was difficult for example to have membership cards for NAYO or UDF or something like that, because that made you a target to the IFP or the Security Forces. I never saw or I never thought that it was important or I needed a membership card for example, to support the ANC.
Cards, membership cards, they wouldn't change anything with the ANC, my membership card. That did not mean for example if I had a membership card, that would count in the number of ANC membership, and maybe give it a seat in Parliament or something. I did not see any significance at that point, of having specifically a membership card.
MR MAPOMA: Is it not correct that after the ANC was unbanned, the leaders of the ANC throughout the country were preaching for people to join the ANC and build the ANC by joining it, was that not the case?
MR NGWENYA: Yes, as I have tried to explain, at the time, I did not see the significance of getting a membership card to, for example, support ANC, you see. I can support the ANC without having a card.
But then, if for example, ANC membership was needed to give the ANC a seat in Parliament or something that was important, maybe that was when I would have acquired a membership card.
MR MAPOMA: Now do I understand you to say what the ANC leaders were preaching, you didn't find it significant, yet you claim to have been a supporter of the ANC?
MR NGWENYA: Well, Mr, I would say, I wouldn't say for example what they said was not important. There were things that I heard, I used to attend meetings or rallies when they were called, but then, as I am saying, at that time, I knew that there were negotiations that were going on, after the release of Madiba, and then, about the elections. That was a thing that was important to me, at the time. No matter what, that thing should materialise, the elections should be held. That is what I saw as important, rather than having a membership card at the time.
JUDGE MOTATA: Mr Mapoma, if I may come in again, I am sorry about this. This incident happened in 1991, October, thereabout?
MR NGWENYA: Yes.
JUDGE MOTATA: And Mr Mandela was released in February 1990?
MR NGWENYA: Yes.
JUDGE MOTATA: When you say you did not see the importance that you should be a card-carrying member, that would probably send somebody to Parliament, what was going on in your mind, why was Mandela released and why were these negotiations?
MR NGWENYA: Well, the negotiations were about people voting, not about members, card-carrying members voting, but about people voting. so, I knew that you did not need a membership card to vote per se. But you only need to have an organisation that you support, to vote.
JUDGE MOTATA: You did not see the need for instance, because you were now coming from NAYO which was an off-shoot of the UDF, which overtly was saying "we want to go to Parliament" and you did not see that there should be a need for card carrying people, that you should be identified with the party which you support, or the organisation?
MR NGWENYA: What I can tell you about, I did not see the importance of that, because my experience with people, with card-carrying members of political organisations, which were enemies of the State at that time, was that they never lived peacefully, they were constantly attacked by IFP or even the Security Forces, because ...
JUDGE MOTATA: Now, but we've got a change of scenario now. We are having the ANC, the PAC, name it, all unbanned, now they are lawful organisations?
MR NGWENYA: Yes. Yes, I did not see the importance at the time, that I should specifically have a membership card.
JUDGE MOTATA: Thank you. You may proceed, Mr Mapoma.
MR MAPOMA: Thank you sir. Are you aware at all that the Self-Defence Units were falling under the political control of the ANC?
MR NGWENYA: Yes, I am. The ANC is for the people, it is not for its members, it was the organisation for the people, it is not only for ANC card carrying members. Because ANC is today in power, not because of its members, but because of the people who supported it during the votes.
MR MAPOMA: In your area, you say there was no command structure, so to speak?
MR NGWENYA: When this thing was formed?
MR MAPOMA: In your group?
MR NGWENYA: When the structure was formed, there was no command, there was no person who had a portfolio or a position that you could say "this is a Commander", but there were people who were at the forefront, not necessarily that they had positions, they did not have positions, but they were people who were respected, people who were grown-up's at the front.
MR MAPOMA: Even at the time when you went to attack, you were not under any command structure?
MR NGWENYA: No, no, we were not under, nobody commanded us to go there, we took an initiative.
MR MAPOMA: As this SDU of yours, were you reporting to the ANC at all?
MR NGWENYA: There were some people, people were involved who were ANC members, the ANC, some ANC members that we have consulted before, they would come to the area where we were to see how things were going. Other people that were involved in the defence structure, they were, they had some positions there at Sangwane, at the ANC offices.
We never saw that we should every day for an example go down and specifically report that "we patrolled efficiently last night", or something like that, but they knew what was happening there. That is what I can say. They knew what was happening at that avenue.
MR MAPOMA: Do you know who was the ANC Chairperson of the branch of the area?
MR NGWENYA: Well, the Chairperson, I cannot specifically at the time, the time now, because at one point, Mr Hiddey was a Chairperson, but then I cannot recall the period that he was the Chairperson. Also Oubet Maphela was also a Chairperson, but then I cannot recall the exact time when he was, when they were Chairperson of the ANC in the area.
MR MAPOMA: Who are those ANC persons you say at some point, you consulted?
MR NGWENYA: We consulted Freddie Khumalo, Brabhiza, we consulted Brabhedi, I don't know his surname. We consulted Boihzi, we consulted Samora, amongst the few that I recall the names.
MR MAPOMA: Were they resident at your area, those persons whom you have just mentioned?
MR NGWENYA: The person that resided in our area was Samora, yes, it was Samora. The others were not resident in our area. They were down, like Mr Khumalo, Mr Brabhedi was in Fifth Avenue, Mr Khumalo Brabhiza was in Eleventh Avenue.
MR MAPOMA: This Samora, did he occupy any leadership position of the ANC in your area?
MR NGWENYA: In our area?
MR MAPOMA: Yes?
MR NGWENYA: Yes, earlier on, in about 1986 or so, there were the Street Committees, there were the Street Committees, so he was part of that, even though they were no longer effective at the time. So, but then he had positions from that time on. There were also some other people who had some sort of positions, like those of the Street Committees.
MR MAPOMA: Mr Ngwenya, I am asking these questions because it seems from your evidence that you were a group of persons who were not accountable to the ANC, yet you claimed that you were SDU's? I am asking this question because the ANC made submissions where it has accepted that the SDU's were falling under their political control and yours, funnily enough, does not seem to have been a structure which was accountable to the ANC?
MR NGWENYA: No, maybe for example, in my submissions, I mention the names of people. I don't know whether the investigations maybe consulted those people and maybe tried to find out about us, because indeed we were there, indeed, we did defend the people, indeed we were part of the people who formed the structure, the Self-Defence Unit.
Nobody in Alexandra can say he was part of the defence structure and say that he does not know us. Nobody can say that, if he is telling the truth.
MR MAPOMA: But it is incumbent upon you to show this Committee that you were members of the SDU, it is you who are supposed to come with somebody to say that these were our members, as SDU's, and not somebody else.
MR NGWENYA: Yes, maybe you might see that I am a prisoner, I am in prison, and that is why I included names. Maybe if I knew that I should come with people, maybe I would have tried some means, even though it is very difficult to go outside, it is impossible in fact, to go outside, if you are a prisoner.
I would have tried maybe to phone, even though I am allowed one phone call a month in prison, I would have tried to contact those people and say "please come", I never knew that, because I thought that as I have included them in my further submissions, maybe the Investigating Unit will go down there and try to consult, if that is that important to them.
MR MAPOMA: One other thing that is funny with your SDU and I want your comment on this, is that it had no command structure, it had no one from the MK who was assuming any control in it? You were just loose?
MR NGWENYA: I said initially, initially the community members ...
MR MAPOMA: No, no, let us not talk initially, I want, I want us to address about a stage when you went to attack.
MR NGWENYA: Yes, when we?
MR MAPOMA: When you went to attack?
MR NGWENYA: Oh, when we went to attack, okay, when we went to do the acts that we are applying amnesty for? At that time, yes, at that time, there was no MK cadre who was with us. At that time, there was none, and I doubt if maybe somebody can say, we should have sat and waited for people to kill us, and waited for people to burn down houses, whereas we know what was happening, whereas we could take initiative to defend the people.
MR MAPOMA: You know, once again, I need your comment on this. The SDU's generally, in a particular area, we would find a structure which had a Commander and that Commander would fall under the Area Commander and there was a hierarchy?
MR NGWENYA: Yes.
MR MAPOMA: Yours does not seem to be having any Commander and you seem not to have been falling to any command structure altogether?
MR NGWENYA: No. I said after, when, at the time when we received now, when some cadres came in now, they became, they commanded us now, and showed us some other things that we were not aware of, but when we formed this thing as communities, we were just concerned communities, who were being attacked by the hostel dwellers at the time.
MR MAPOMA: Did you undergo any military training?
MR NGWENYA: No, there was no military training that I underwent.
MR MAPOMA: As SDU's, is there any training whatsoever that you were given?
MR NGWENYA: Our SDU's?
MR MAPOMA: Yes?
MR NGWENYA: The training was maybe about, we never had a shooting range. The training, that was about how to cock a gun, how to shoot, how to load, how to reload it. That was the training.
CHAIRPERSON: Just, so you go and you steal some guns and you steal some ammunition. What will you do when that ammunition is used up?
MR NGWENYA: When we no longer have it now?
CHAIRPERSON: Yes?
MR NGWENYA: Yes ...
CHAIRPERSON: What is the point in having a gun or committing a robbery of this nature, to have a gun that you won't be able to get ammunition for once you have used up the bullets that you have got?
MR NGWENYA: Ammunition was just, it is just that we never had, personally we never had it, but it is sold there outside, people are selling it.
So when we ran out of ammunition, you could buy it. That is what in fact happened, when we ran out of ammunition.
MR MAPOMA: Who trained you?
MR NGWENYA: In terms of ...?
MR MAPOMA: Yes?
MR NGWENYA: Cocking the gun? It was Silo, it was Samora was also part of that, it was Dada Kaswe, those were the people who showed some of the SDU members how to do those things, before Skalo came in. Skalo, that is the MK cadre who came to the scene later on.
JUDGE MOTATA: Did they train you, if I may just come in here Mr Mapoma. Did they train you before you committed this robbery, the people you have mentioned?
MR NGWENYA: We had guns, yes, before we went to the robbery, we had some few handguns. So as we were guarding the place at night, so one Unit was given one gun, so people were taught how to use the gun when we were defending at night.
The training happened before we went there, and then after we went there, it was now Skalo now, who came with the big guns.
JUDGE MOTATA: Were all five of you who assumed responsibility, trained?
MR NGWENYA: Except Maponyane.
JUDGE MOTATA: Thank you, you may continue, Mr Mapoma.
MR MAPOMA: Thank you sir. Now, in the place where you robbed, what is it that you robbed actually?
MR NGWENYA: We robbed, we got these two guns and ammunition, but then unfortunately the other gun was left behind, the .44, so when we arrived in Alexandra, after that incident of the robbery, we came together, we found the other guys, because I came there, I was the fourth guy to come in Alexandra, Maponyane was the last. When we came there, we sat down and obviously because of how the robbery ended up, and also the shooting out with the police at Corlett Drive, we obviously had to brief one another as to what exactly transpired, what exactly led to the police or the security guards coming to the area.
We found out that we got only 38 ammunition and also we found that there was some jewellery also, from Elvis.
MR MAPOMA: So you robbed jewellery as well?
MR NGWENYA: Jewellery, I did not, personally I did not see that incident because I only became aware of the jewellery when I was in the location, when Elvis now was asking Johnny when we were putting together what we got from the scene, when he asked him "where is the jewellery". It was not, it was a watch or two and some rings and a pearl necklace.
CHAIRPERSON: It says in the judgement that the home was broken in and they mention, just bear with me
"... entered through the front door which had been left open. The robbers set about their task of terrorising and robbing the persons".
MR NGWENYA: Well, I wouldn't say that we terrorised them per se.
CHAIRPERSON: Somebody took their watches and jewellery?
MR NGWENYA: That is why I am trying to say that I only became aware of the jewellery when I was in Alexandra, because that was not in the plan.
Most of the time, at the house there, I was up there with Mrs le Krish, at the safes.
CHAIRPERSON: Mr Mapoma? Do you want to break for tea or do we finish the witness?
MR MAPOMA: Yes, I propose when I finish Chairperson. Who was left outside when you were with Mrs le Krish inside?
MR NGWENYA: No, it was not outside, it was in the lounge.
MR MAPOMA: Yes.
MR NGWENYA: I and Maponyane went with Mrs le Krish up, and then Muzi Khubheka, Elvis and Johnny, they were left down there with the people who were laying on the floor.
MR MAPOMA: Did you demand some cash from the persons whom you robbed?
MR NGWENYA: I demanded guns, because we knew that there were guns in that place.
CHAIRPERSON: The question was did you demand cash?
MR NGWENYA: No, I did not demand cash.
ADV SANDI: Sorry Mr Mapoma, did anyone of your colleagues, demand cash?
MR NGWENYA: When we came there, when we came there, it was I who told them that "this is a robbery, we want guns". I don't know, I cannot talk about the time when I was not there, when the jewellery was taken. I cannot say about that time, but it was me who talked to the le Krishs, so I never asked for money, but I asked for guns.
JUDGE MOTATA: Had you planned this that "when we get there, I will be the spokesperson and tell them that this is what we want and nobody does anything other than I being the spokesperson"?
MR NGWENYA: No, it was not like that, that "you are going to talk, we are not going to talk", it just happened, when I came in, I was the first to come in and then, when I saw them panicking, then I told them "if you panic, you might get hurt, we just want guns", so that is how it happened.
JUDGE MOTATA: Did you go to this house in October 1991 for the first time?
MR NGWENYA: Yes, it was for the first time.
JUDGE MOTATA: You were merely told that there were guns there and you just went there?
MR NGWENYA: We were told that there were guns there, also for the fact that Maponyane's mother, we also gathered that she worked in the area, so possibly, possibly, there was the possibility that there were guns in that area, because from the explanation that we got, it seemed possible that there could be guns in the area.
JUDGE MOTATA: No, let's speak about the le Krishs.
MR NGWENYA: Yes, I am talking about the le Krishs.
JUDGE MOTATA: You know, you give me the impression that you were not certain that there were guns, because you someone said, mentioned that because one of the relatives of your colleagues was working in the area and there could possibly be guns?
MR NGWENYA: No, no, the issue of the guns is not that because one works in the area. The area, Jacob, he lived in 14, when we heard this thing, it was that, we heard that once, they once broke into the place and then they found ammunition for pump action and they found carry bags or carry cases for the rifles in the area, and there were these big gun safes.
That gave us assurance or an indication that indeed, guns can be available in that place.
CHAIRPERSON: Did Mrs le Krish have a baby with her?
MR NGWENYA: Yes, she did have a baby.
CHAIRPERSON: Because it says here in the record that she had a baby, but nevertheless took off her gold necklace, string of pearls, earrings, watch, wedding ring and a wedding heirloom?
MR NGWENYA: Not when I was with her. What happened, when we came in there, I first went with Mr le Krish before I went with Mrs le Krish and then Mr le Krish did not, could not find the safes and then we came back and then he asked now Mrs le Krish to go and look for the keys. I took Mrs le Krish, who then went to the maid's room and asked for the maid "where are the keys", and then now, we came back now with the maid again, who came and lay down there. That is now when I went with Mrs le Krish up, so at the time when she had the child, there was no time she took out necklaces.
JUDGE MOTATA: Could you see those necklaces, earrings, wedding ring on her while she was in your company, when you went upstairs?
MR NGWENYA: Well, I did not notice exactly what she was wearing.
JUDGE MOTATA: When you were at first with Mr le Krish, how long were you with him before ...
MR NGWENYA: With Mr le Krish? It was a period of not more than five minutes, but then it was not very short, because he looked somewhere for the keys, but couldn't find the keys, so we had to come back because we were not now in the this room, in the lounge where they were initially, where we found them, when we looked for the keys.
We went into the kitchen, we went into another room, but he couldn't find the keys, and he came back.
JUDGE MOTATA: You may proceed, Mr Mapoma.
MR MAPOMA: Thank you. Why Mr Ngwenya, did you not mention in your evidence-in-chief that you robbed jewellery as well?
MR NGWENYA: The evidence that I said when, before you took the stand?
MR MAPOMA: Yes? No, the evidence when you were led by your legal representative, why did you not volunteer the information that you robbed jewellery as well?
MR NGWENYA: No, well, not that maybe I was trying to run away from that thing, no, maybe it is something that, there are a lot of things that maybe I haven't said as of now. Maybe it was just one of those things that I did not say.
For example, I could not talk more about the jewellery, because I only became aware of the jewellery when I was in the township. I talked mostly about what happened at the scene.
CHAIRPERSON: This is also just again for your comment, sorry Mr Mapoma, from the judgement, I am looking at page 48. She says - her baby started to cry, this is from the judgement
"... the robber ordered her to keep quiet. She picked up an expensive Olympus camera, she picked up a video recorder, a VCR as it was called on the top of the television set, she picked up a few watches and gave them to the robber, who avidly took these articles."
MR NGWENYA: There was no camera that I ever saw, there was no video that I ever saw. Even during the trial, we never saw those things.
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Do you have any re-examination Mr Mohlaba?
MR MOHLABA: None, Chairperson, thank you.
NO RE-EXAMINATION BY MR MOHLABA
CHAIRPERSON: Judge Motata, do you have any questions that you would like to put?
JUDGE MOTATA: Just a few clarifications. When did you come to Johannesburg, because you grew up, you were born in Newcastle and at some stage you belonged to NAYO there?
MR NGWENYA: I finished my matriculation in 1987 and then in 1988, because I came there after there was this tension now, it was very strong now, this tension, after UWUSA was formed now, there was tension now, so houses were being burnt, and then I came, I have my mother's relatives here in Soweto. That was in 1988, late 1988.
JUDGE MOTATA: Did you come to Alexandra or Soweto?
MR NGWENYA: I, no, I came to Alexandra, I used to visit my grandmother in Soweto. I came to Alexandra.
JUDGE MOTATA: Did you work
MR NGWENYA: No, at the time I was unemployed.
JUDGE MOTATA: Even up to the time of this incident at Illovo?
MR NGWENYA: Yes, I was not permanently employed, there was no time that I was formally employed, so to say.
JUDGE MOTATA: You said that you used to visit the offices of the ANC in Alexandra and you saw people like Samora, Freddie Khumalo, Brabhiza, as what did you approach them? You said "here we are, we are under attack", but who are you from probably Third Avenue, Second Avenue to Fourth Avenue?
MR NGWENYA: I never went there as an individual, we went there with some members of the structure. I never went there as an individual.
JUDGE MOTATA: No, when you started, listen, when you started you said that there was no formalised structure, you were just SDU's, there were about 30 of you patrolling. I say you, there are certain individuals, go to the offices of the ANC and say to the ANC, what do you say to the ANC, who are we and sent by who?
MR NGWENYA: We are the, when we talked to these people, we were about five, we were five when we went to the offices, and we told them that "we were people from Third Avenue, we seek your intervention in terms of defending us there at the top in Third Avenue because we are being killed, we are being attacked by Inkatha, so if maybe you can provide us with cadres who may come and reside in our area".
JUDGE MOTATA: Are you saying that the ANC, because it had an office in Alexandra, were unaware of this attack by Inkatha on the community in Alexandra?
MR NGWENYA: They were aware that there was violence in Alexandra, but nothing was done, yes, was done at that time. They were aware that there was violence, but nothing, they had done nothing at the time when we went there.
JUDGE MOTATA: Because now you had made them aware or rather, let me start with this one, when you say you were about five, are you saying that the others were your co-applicants in that delegation?
MR NGWENYA: No. No.
JUDGE MOTATA: They never went?
MR NGWENYA: No, no, out of this three gentlemen I am with, no, it was only me amongst the people who went to the offices.
JUDGE MOTATA: How many times did you visit the offices of the ANC, seeking this assistance?
MR NGWENYA: Personally when I was present, it was once but then people, there were some older people there, who were responsible for most of the things, although, not that they had positions per se, but they used to go down there.
JUDGE MOTATA: And the ANC never said to you "people to ward off this attack, we think you should formalise yourself", they never made such a suggestion?
MR NGWENYA: No, they, because I doubt, when we talked to them, they were never of the opinion that we were illegitimate. They never mentioned something to that effect, that maybe we were not, they did not recognise us. No.
JUDGE MOTATA: Then when you said to them, probably if you could send some of the cadres, who would they contact, because there is no formalised structure between Second and Fourth Avenue and between Selborne and Roosevelt Streets, who would they contact if they were to send people to come and assist the community there to ward off the attack?
MR NGWENYA: The people that we went with there, they were known to them, the people that I went with there, to the offices, they were known to the people that we found there. They knew exactly where to find us, because they knew that we were from Third Avenue. They knew the people, where they lived in Third Avenue.
JUDGE MOTATA: You told them "look, we are now the SDU's in the area" or you just sought help?
MR NGWENYA: No, we told them that we have tried to organise ourselves, but the problem is that we don't have guns that could match the guns that we could hear when the IFP is shooting at us, so we need people with big guns to come and reside in the area.
Because at that moment, we only had some pistols and revolvers.
JUDGE MOTATA: These people who trained you in the shooting before this incident, what were they training you as, because there was no help forthcoming from the ANC?
MR NGWENYA: When we were trained firstly before we went to commit the robbery?
JUDGE MOTATA: Yes.
MR NGWENYA: They trained us, because now our structure, we have divided ourselves into different groups, and then each group, when it was supposed to patrol, at least they must have, the group must have a firearm. So now people, someone was in possession of that firearm, within that structure, within that unit, must have knowledge of how to use the firearm. It was on those basis now that we were trained to be able to use the guns that we had.
JUDGE MOTATA: Trained by who?
MR NGWENYA: It was Samora was part of that, Silo was part of that, Dada Kaswe was part of that.
JUDGE MOTATA: Yes, but I asked you earlier and you said there was no help forthcoming from the ANC and if I ...
MR NGWENYA: At that time, yes, it came later on.
JUDGE MOTATA: You see, you must listen because it would be easy, because I am not trying to catch you out, I want explanations from you and please view them in that light.
I want explanations, because some things, when you said them, did not make sense to me. I asked you first that you never got assistance for instance, from the ANC, that they should assist this community of Second to Fourth Avenue residents, you said no, they did not send people, did I hear you correctly?
MR NGWENYA: At that time, after we went there, yes, they did not send people. I also said that at some time later on, there were people who came now, and then now, taught us now how to use big guns, at that time.
JUDGE MOTATA: Yes, that was quite later, after, we are here concerned with events that led up to October 1991, when you people went out to go and seek weaponry to defend yourselves?
MR NGWENYA: Yes.
JUDGE MOTATA: And I would say "let's confine ourselves to that time" and not what happened subsequently, because the decision we've got to make is what led to that incident and up to that incident, we cannot take anything into account later. Are you with me there?
MR NGWENYA: Yes, I am with you.
JUDGE MOTATA: My understanding was that Samora for instance, was one of the people who occupied some position within the ANC?
MR NGWENYA: Yes.
JUDGE MOTATA: The thing that led you people to go and rob, you wanted to arm yourselves, to have something that you could defend yourselves with, because there was nothing forthcoming from the ANC?
MR NGWENYA: Yes.
JUDGE MOTATA: So far we are agreed?
MR NGWENYA: Yes.
JUDGE MOTATA: Now I say, you say the ANC wouldn't do anything, I say now, if people like Samora trained you, they trained you as what, because you people were somewhat despondent that you had to, because you were the people who were attacked and you had to do something. When Samora trained you in these handguns, he trained you as what? That is my question?
MR NGWENYA: As members of the SDU.
JUDGE MOTATA: Thank you Chairperson, I've got no further questions.
CHAIRPERSON: Mr Sandi, do you have any questions?
ADV SANDI: I've got no questions, thank you Mr Chairperson.
CHAIRPERSON: Just on this one point, in your statements that we have before us, you have given an explanation but you say that you weren't involved in the murder of the policeman, Sgt Oosthuizen, or the attempted murder of his colleague, in these papers, right, you deny it, even in the papers that were submitted to the Truth and Reconciliation Commission? Right?
MR NGWENYA: Yes, these papers, these papers, yes.
CHAIRPERSON: Now why did you lie in those papers?
MR NGWENYA: It was not necessarily that I lied.
CHAIRPERSON: Well, I mean you said you weren't involved in the killing of the policeman?
MR NGWENYA: Yes.
CHAIRPERSON: Do you want me to read it to you and you say it is not a lie?
MR NGWENYA: No, I am explaining in the sense that how, the knowledge I had about the TRC when I filled in the forms.
CHAIRPERSON: Yes, but - so that made you lie?
MR NGWENYA: No, that made me fill in the forms the way that I did, because when I filled in the forms, I was of the opinion that the TRC, if you have already gone through the courts, you have to use the evidence that is on the court records.
So now, according to evidence that was on the court records, evidence in court about the robbery case, was ample evidence against us. So now, but on this robbery incident, there was no evidence except the pointing outs and the confessions that were made and then we were forced to make those statements. It was that evidence only which we contested also in court, its admissibility.
When I filled in the forms, I was of the opinion that, I equated the TRC at the time to somehow, to some extent, with an appeal court, if I may call it like that.
CHAIRPERSON: Thank you. Do you have any questions arising, Mr Mohlaba?
MR MOHLABA: None Chairperson.
NO FURTHER QUESTIONS BY MR MOHLABA
CHAIRPERSON: Mr Mapoma?
FURTHER CROSS-EXAMINATION BY MR MAPOMA: Just one Chairperson. You spoke of a confession, are you one of the persons who made a confession?
MR NGWENYA: Yes.
MR MAPOMA: In that confession, did you mention that you were the SDU members?
MR NGWENYA: No, I did not. In fact, that is why I also were beaten to, I was beaten to make that confession. I did not see the reason why I should give the Courts a stance to sentence me, because obviously they were going to sentence me, the way that I saw things happen.
MR MAPOMA: Thank you, thank you Chairperson.
NO FURTHER QUESTIONS BY MR MAPOMA
ADV SANDI: Sorry Chair, I said I have no questions, I do in fact have a question, I had forgotten to ask it.
Why did you not ask your pro deo counsel to tell the Court in mitigation that you did all this because you wanted arms so that you could defend yourselves and the community?
MR NGWENYA: Well, that would have amounted to admitting the crime now, so we did, I did not see a reason because now I knew, I knew the regime that was responsible for this, was also the regime that was in the courts. So now, I did not see at the time, the reason of admitting it and giving them a leeway to sentence me.
ADV SANDI: But at that stage, you had already been found guilty, what difference would it have made?
MR NGWENYA: Well, I, maybe I did not think about that at the time, because I did not even see the significance of it, turning around again whilst during the trial, I denied everything and then now, in mitigation now, I come back and agree that no, it was for the defence.
ADV SANDI: Your pro deo counsel did he know that you were members of SDU's, did he tell you that?
MR NGWENYA: That we were members of the SDU's? Well, I told her, because I had a, we all had different defences, I told her, she knew that there was violence in our area, as much as also the police knew that there was violence in the area.
I also told her that I was part, we were part of the defence structure, which led, when she asked me why, what took the police so long to arrest me, then I tried to explain to her that the area that I lived in, was a war zone, so it was not easy for the police to come in at any time. They knew that we were there, but it was not easy for them to come in there. That is when I, that is how, the context that I explained to her about my involvement in the SDU.
JUDGE MOTATA: Just that, were you found guilty of murder?
MR NGWENYA: Yes, I was found guilty of murder.
JUDGE MOTATA: Attempted murder?
MR NGWENYA: Yes, attempted murder also.
JUDGE MOTATA: Thank you.
CHAIRPERSON: Yes, thank you Mr Ngwenya. That concludes your testimony.
WITNESS EXCUSED
CHAIRPERSON: Mr Mohlaba?
MR MOHLABA: Chairperson, I would want to lead the other applicant, the second applicant but I would request a short adjournment.
CHAIRPERSON: Yes, I think we will have a short adjournment, not necessarily the tea time, I see it is almost lunch time now, but we will take a short adjournment, just for Mr Mohlaba to get ready and then if you can let us know as soon as you are ready, we will resume.
COMMITTEE ADJOURNS
