CHAIRPERSON: .... and Judge Motata was putting questions and we'll take off from that point.
EDWARD MOTHIBE: (still under affirmation)
CHAIRPERSON: Judge Motata.
JUDGE MOTATA: Thank you Chairperson. Mr Mothibe, let's just move on. You returned in 1992 according to you testimony. Would I be correct?
MR MOTHIBE: That is correct.
JUDGE MOTATA: And again I had sight of the documentation in our possession, that your home was in Daveyton.
MR MOTHIBE: That is correct.
JUDGE MOTATA: And you further told us that you had this hiding place in Hillbrow where after the hijacking and the killing of Mr Kotelo, you were found.
MR MOTHIBE: That is correct.
JUDGE MOTATA: And I notice again that that is the Court record, the sentence that you were a married person with one child.
MR MOTHIBE: That is correct.
JUDGE MOTATA: When you were using the hiding place in Hillbrow, where was your family, that is child and wife?
MR MOTHIBE: They were in Daveyton.
JUDGE MOTATA: When did you start using the hiding place?
MR MOTHIBE: In 1992.
JUDGE MOTATA: Upon your return?
MR MOTHIBE: That is correct.
JUDGE MOTATA: Were you married when you returned?
MR MOTHIBE: No.
JUDGE MOTATA: When did you get married and where?
MR MOTHIBE: In 1993 December.
JUDGE MOTATA: After the commission of this act?
MR MOTHIBE: That is correct.
JUDGE MOTATA: This is not terribly important but I notice in the Judgment that when you appeared in Court you were already convicted of another crime, the Judge said it was a similar crime.
MR MOTHIBE: No.
JUDGE MOTATA: Wasn't it murder?
MR MOTHIBE: No.
JUDGE MOTATA: What was it then?
MR MOTHIBE: This was the first incident that I was found guilty with, the one that I've applied amnesty for.
JUDGE MOTATA: Weren't you then when you were sentenced in this one, having had a total of 8 years and some of the years suspended?
MR MOTHIBE: I was given 8 years and 5 years was suspended.
JUDGE MOTATA: And a gun was found to have been used in that incident for which you got 8 years and 5 years suspended?
MR MOTHIBE: That is correct.
JUDGE MOTATA: What I found again is that the Judge said what was in your favour is that when the incident occurred, you had been drinking, that was a mitigating factor in your favour. You recall the Judge saying that?
MR MOTHIBE: Yes I do remember.
JUDGE MOTATA: And what I want an explanation for, is that where would the Judge have found that? I'll tell you why, before you respond to that, this was in mitigation, placed in mitigation in your favour that when you hijacked and you had been the driver of the vehicle, that's what is in the sentence, of Mr Kotelo's car, you had been drinking. Where would that come from?
MR MOTHIBE: He got that from the State Witness.
JUDGE MOTATA: Do you understand Court proceedings? What happened is this, if I may explain to you, is that evidence was led and you were convicted and it was now and opportunity for you before sentence to say what are your mitigating factors, which I should take into account before I impose sentence, that is what I would say in Court. do you follow?
MR MOTHIBE: Yes, I do.
JUDGE MOTATA: Because I'll read to you from page 72, which would have been page 5 of the sentence.
"However the Court will also take into account in your favour that you had been drinking that evening"
and my understanding of the evidence thus far, which has been given by you in respect of this application is that your comrades informed you that they first dealt with the police and thereafter went to Mr Kotelo and hijacked his car, but my question remains, where would the Judge find that?
MR MOTHIBE: The Judge got that from the witnesses.
JUDGE MOTATA: You testified that the fact that Mr Kotelo was financing and defending members of PASO, him and Dr Skosana, according to the information you received from your comrades, made them gain power in kwaThema. Now in your planning that you had to eliminate one of them so that COSAS could gain an upper hand, I want an explanation from you, how would you have achieved this and I'll sketch the two scenarios to you, that by eliminating and in this instance Mr Kotelo, by hijacking his car with him inside, kill him somewhere else, how would that have shown that COSAS was in power if you take the second scenario that if Mr Kotelo had been killed at his place and probably taken the car for get away, which would have been effective, because why I'm asking you this, anybody looking at the scenario that Mr Kotelo had been hijacked and killed somewhere, they would have said probably these are just criminals, this has nothing to do with the conflict between COSAS and PASO.
MR MOTHIBE: I do understand the way you put it. What I would say is that in the township when you do something like this, the first thing you have to protect yourself and your co-comrades who are with you. To kill Mr Kotelo at his place would have warranted some protection from us. We did not want to be identified as people who have committed that crime. The reason why he was kidnapped is that we were afraid that we would be identified as people who have committed that crime. It would be better if it is known that the incident was committed by a certain organisation, not the individuals. That is my explanation. I don't know whether I have answered you properly.
JUDGE MOTATA: Contrast this with the attacks, counter attacks if I may call it that, of the IFP at Zenzele, I think you said, by the residents who were largely affiliated to the ANC within Daveyton, that when those attacks were done, it was clear that this is a retaliation that the IFP people were attacking people from Daveyton and we look at COSAS, consists of a large number of youths from Daveyton and this attack and hijacking on Mr Kotelo was also done in the evening. How would people know the individuals because this wasn't done during daylight where people could be identified as individuals.
MR MOTHIBE: When you say people would not know because it happened at night, we would know because we were on the offensive at that time and it would be known which groups were fighting at that time and it would be known which group was on the offensive, but the following day it would not be known which individuals were involved. Yes, we were fighting against the IFP and it was known. They also knew that we would retaliate and it was known that the fight was between us and them, so concerning Mr Kotelo's incident, what was important was for us to achieve our goal that we sought to achieve at that time. The comrades would know that this was done by the members of the ANC so when I refer to the people, I refer to the members of the ANC or supporters of the ANC. That is my explanation.
JUDGE MOTATA: I should tell you this that I'm resident in Johannesburg and prior to occupying this acting office I was a practising advocate at the Johannesburg Bar and the papers never alluded to Mr Kotelo as having been involved in conflict which had a political tint, but they spoke of his hijacking and him not being found. Now I'm tell you, the Monday thereof because it carried the story of Mr Kotelo for a week, do you recall that?
MR MOTHIBE: No, I don't know.
JUDGE MOTATA: You did not read the papers to confirm what you've been told by your comrades?
MR MOTHIBE: No.
JUDGE MOTATA: Because what you said that his motor vehicle was recovered in the central business district of Johannesburg is true, next to Carlton Centre, that is true. Do you know where the body was dumped after they killed him and shoved him out of the car?
MR MOTHIBE: Yes, they said they threw his body out in Daveyton.
JUDGE MOTATA: Do you know precisely where in Daveyton?
MR MOTHIBE: I learned that in Court.
JUDGE MOTATA: You did not want to know from your comrades?
MR MOTHIBE: They just told me that they threw his body in Daveyton.
JUDGE MOTATA: In Court, which was recovered first, his corpse or car?
MR MOTHIBE: It was said that his car was recovered first.
JUDGE MOTATA: That is correct. That's why I said it gained prominence in the papers, according to how you reveal it now. So you still want to say that's political, the manner in which it is unfolding now, even in this hearing?
MR MOTHIBE: Yes, I still say that.
JUDGE MOTATA: Thank you very much Mr Mothibe. Thank you Chairperson.
CHAIRPERSON: Thank you Judge Motata. Mr Sandi do you have any questions?
ADV SANDI: Yes, thank you very much Chairman. Mr Mothibe, why did you not tell the Court that the reason why Mr Kotelo was killed, was because he was assisting PASO which was attacking members of your organisation? Why didn't you say that in Court?
MR MOTHIBE: I did not tell the Court about the reasons behind Mr Kotelo's killing, what I said to the Court, I tried to explain the conditions and the situation at that time, I did not give them the reasons.
CHAIRPERSON: But what Mr Sandi wants to know is why didn't you give the reasons? His question was why didn't you tell the Court that Mr Kotelo was assisting the PASO?
MR MOTHIBE: I was answering the questions, the way they were put to me in Court. I didn't get the opportunity. Had I told the reasons surrounding Mr Kotelo's killing, I would have been implicated in his killing.
ADV SANDI: Okay. Let's go back to the reasons for the murder of Mr Kotelo. Having listened to your evidence from yesterday, would I be correct to say that you did not care to confirm whether those allegations about him were true or not, am I correct? You didn't care to bother yourself about investigating the truthfulness of those allegations.
MR MOTHIBE: It is because I trusted my fellow comrades. I trusted them very much.
ADV SANDI: And that is the reason you did not care to confirm those allegations, isn't it?
MR MOTHIBE: Yes, because they were loyal to me, I was also loyal to them.
ADV SANDI: And what is your attitude today? Do you care to know today whether or not those allegations were true about Mr Kotelo?
MR MOTHIBE: Yes, my attitude today has changed because I want to know about Mr Kotelo because today we have to know the truth about what happened at that time.
ADV SANDI: I don't know what evidence is going to be given by Mrs Kotelo, but having listened to the questions that have been put to you by her counsel, it would appear that when she testifies she's going to show that those allegations were not true.
MR MOTHIBE: Yes, I did hear that.
ADV SANDI: In the even of Mrs Kotelo testifying to the effect that those allegations about Mr Kotelo were not true, would you accept that Mr Kotelo died because you didn't care to investigate those allegations? Would you accept that?
MR MOTHIBE: What Monica will say, I would listen to her and I would understand why she is saying that because I know it's painful to her. I would not contest what she is going to say because I am also convinced that what I am saying is also the truth. The reason why I didn't do further investigations was that I trusted my fellow comrades, so what she is going to say here, I will understand.
ADV SANDI: Okay. Thank you. Thank you Chairman, no further questions.
CHAIRPERSON: Thank you. Just briefly Mr Mothibe, was it part of the plan, an integral part of the plan to hi-jack the motor vehicle?
MR MOTHIBE: It was our plan because we did not have a get-away car and that car helped them to reach me in Hillbrow.
CHAIRPERSON: Yes. Now I'm not a military man and never have been, but I have a bit of difficulty with the logic of the planning. You said that you saw the two policemen and that you believed or heard that they lived in the vicinity, is that correct?
MR MOTHIBE: That is correct.
CHAIRPERSON: Did you have information that they were the only two policemen who lived in that area?
MR MOTHIBE: That is correct.
CHAIRPERSON: Where was the next nearest policeman to the Kotelo's house after the two victims that are here before us now?
MR MOTHIBE: No, there were no other policemen near.
CHAIRPERSON: And these two policemen were shot in a shebeen, is that right?
MR MOTHIBE: Only one of them.
CHAIRPERSON: In a shebeen?
MR MOTHIBE: Yes, that is what I learned, they were shot at the shebeen next to Mr Kotelo's place.
CHAIRPERSON: And there were other people in the shebeen at the time?
MR MOTHIBE: Well I don't know.
CHAIRPERSON: Well if there were, would they have known who the other people were? There might have been another policeman there.
MR MOTHIBE: Well, I don't know.
CHAIRPERSON: Yes, that's what I'm trying to get across. You wouldn't know within an area of 150 metres at that time at the Kotelo's house, that there wasn't any other policeman around. There might have been another policeman walking by, there might have been another policeman visiting somebody, you don't know. It would be impossible to know. Do you agree?
MR MOTHIBE: That is true.
CHAIRPERSON: Now, bearing that in mind, what I have difficulty with, with regard to the planning is, you go and hijack a car which may or may not involve the firing of a gun, okay? If a gun's not fired, then there's no risk of being heard by a policeman within 150 metres, yet in your planning, in order to avoid the risk of a shot being fired that may or may not be fired, your comrades expose themselves and go - enter into a shebeen and shoot a policeman, just to avoid that minimal risk. They expose themselves to a risk far greater than the risk they're trying to avoid. What sort of military tactic is that?
MR MOTHIBE: I don't know how to answer this question because those people were involved at that time, I was not present. I don't know what was in their minds, but what I know is that they did what was possible for them to do at that time.
CHAIRPERSON: No, I understand that. Probably the question is better put to your co-applicant. Ms Makhubele, do you have any questions arising out of questions that have been put by members of the Panel?
MS MAKHUBELE: Yes, Chairperson.
RE-EXAMINATION BY MS MAKHUBELE: Mr Mothibe, one of the questions by Judge Motata was the previous conviction referred to by the Judge when you were sentenced in the Kotelo matter, you recall the question that you had a previous conviction?
MR MOTHIBE: Yes, I do remember.
MS MAKHUBELE: According to the bundle, page 54, it would appear that you were sentenced for the Phadi incident prior your sentence on the Kotelo matter. When the Judge referred to a previous conviction, is this not the conviction Her Ladyship was referring to?
MR MOTHIBE: I think she was referring to Mr Phadi's incident, because it appears here in my application forms as well.
MS MAKHUBELE: Okay. Let's proceed then. In your trial, did any of your co-accused testify whether during the trial stage or for mitigation of sentence, that they had been drinking?
MR MOTHIBE: No.
MS MAKHUBELE: You said you did not read news reports on the death of Mr Kotelo. Do you normally read newspapers, or did you read newspapers at the time?
MR MOTHIBE: No, I did not read newspapers at that time because I did not have enough time to sit down and read newspapers at that time.
MS MAKHUBELE: I have nothing further.
NO FURTHER QUESTIONS BY MS MAKHUBELE
CHAIRPERSON: Thank you Ms Makhubele. Mr Makondo, do you have any questions arising out of questions that were put by members of the Panel?
MR MAKONDO: No, Chairperson, thank you.
NO QUESTIONS BY MR MAKONDO
CHAIRPERSON: Mr Mapoma, do you have any questions arising?
MR MAPOMA: No, Chairperson, no questions.
NO QUESTIONS BY MR MAPOMA
CHAIRPERSON: Thank you. Thank you Mr Mothibe, that concludes your evidence.
WITNESS EXCUSED
CHAIRPERSON: Ms Makhubele.
MS MAKHUBELE: Thank you Chairperson. May I then present the evidence of Mr Patrick Ndlela?
CHAIRPERSON: Thank you.
