Amnesty Hearings

CHAIRPERSON: You are reminded that you are still under oath, do you understand?

SMANGALISO PATRICK SIMELANE: (s.u.o.)

CHAIRPERSON: Thank you. Yes, please proceed.

MR VAN WYK: Thank you, Mr Chairman. Just before I start the examination of this witness, I understood yesterday to make a copy of Exhibit TT, it was the second page, and I've made copies for the Committee. I do not know which page it would be correct for at this stage. I know the other pages in respect of this document was page 261 and 262. Mr Chair, may I suggest that we attach it behind the previous register, which I believe was pages 261 and 262, maybe perhaps 262(a) or 261(1) for that matter.

CHAIRPERSON: This document will be referred to as page 262(a).

MR VAN WYK: Thank you, Mr Chairman. Mr ...(intervention)

MS KHAMPEPE: Chairperson, before Advocate van Wyk proceeds with his questioning, we seek clarity, Chairperson. We have a list here of objectors that has handed - well, I mean we rode down the list of objectors on the first day of hearing because according to the legal representatives of the objectors, according to the statements that we have received from the objectors, the only three objectors who are objecting to the granting of amnesty with regard to the occurrences, on the fact of it, would be occurrences at Lancet Hall. It's a Mr Chonco and two gentlemen, the Dlamini's, I mean the family of Mr Chonco and the Dlamini's, who say they were shot and injured at the entrance of Lancet Hall in Jeppe Street.

For the sake of clarity we would want to know the interest Advocate van Wyk has because according to his list the people that he represents refer to being injured or shot at, at the corner of De Villiers and King George, the Shell House incident, and not the Lancet Hall incident. In fact, it relates to all the legal representatives here, unless one of them can tell us that he represents Dr van Wyk, who mentions Dlamini and - the Dlamini's, we would want to know which legal representatives represent which objectors in - with specific reference to which occurrence.

CHAIRPERSON: Well, I intended raising that yesterday. I wasn't clear in my mind, and I would like us to clear this picture up. You understand that ...(intervention)

MS KHAMPEPE: Chairperson, perhaps I can correct, I see now that Mr P A van Wyk does represent Christine Chonco, but yesterday Mr Pretorius was about to start cross-examining, and he represents ...(inaudible), I mean according to this list.

CHAIRPERSON: It is quite clear that only the party representing the interested parties will be entitled to have a say in this matter. Mr van Wyk, are you appearing on behalf of an interested party in connection with this application?

MR VAN WYK: As the Chairman pleases.

CHAIRPERSON: And who is that?

MR VAN WYK: Mrs Chonco, the mother of the deceased.

JUDGE NGCOBO: Is that Christine Nesi Chonco?

MR VAN WYK: That is correct, Justice Ngcobo.

JUDGE NGCOBO: Yes, and then Mr Pretorius.

MR PRETORIUS: Honourable Justice Ngcobo, besides the list that is in possession of the Committee at this stage....

CHAIRPERSON: Yes.

MR PRETORIUS: There is also one of the sons of Mr Chonco present here, Mr Jeffrey Chonco, which we've ..(intervention)

JUDGE NGCOBO: Mr Jeffrey who?

MR PRETORIUS: Chonco, that's the son of the deceased.

JUDGE NGCOBO: Chonco, yes, very well.

MR PRETORIUS: Yes, and besides that I represent one of the Dlamini's as well.

JUDGE NGCOBO: Okay, is that Philemon Dlamini?

MR PRETORIUS: Indeed, sir.

JUDGE NGCOBO: Yes, in regard to the Lancet Hall matter?

MR PRETORIUS: In regard to the Lancet Hall matter.

JUDGE NGCOBO: Yes, very well.

CHAIRPERSON: Is the interest of the son different from the interest of the mother?

MR PRETORIUS: No, not, Mr Chairman, but I'm - if I may just point out what the position is in this regard, is that in as far as the civil actions were referred to, as well as in regard to the inquest, Mr van Wyk and I at all times acted together and as to spread the workload he studies certain documents and I did certain documents, so ...(intervention)

CHAIRPERSON: Well I understand that at the inquest that was done, but I'm talking about for present purposes.

MR PRETORIUS: For present purposes that was done as well, just to spread the workload.

CHAIRPERSON: But if there's not conflict of interest between the Chonco's I think that let's try and see if we can't contain proceedings by having just one set of cross-examination.

MR PRETORIUS: Mr Chairman, we do undertake that we will not repeat any questions. Mr van Wyk will do the main questioning in this regard, with your permission, and if there's anything that I want to raise, it will be brief thereafter.

CHAIRPERSON: Thank you very much.

MR PRETORIUS: As it pleases.

CHAIRPERSON: They may proceed.

JUDGE NGCOBO: In the interest for ...(indistinct) Mr Dorfling.

MR DORFLING: I've got no specific interest in this matter.

MS VAN HUYSTEEN: I also do not have any.

MR HUMAN: Me as well.

MR LAX: Could I just have the name of the son again please, just for my own benefit.

MR PRETORIUS: Mr Jeffrey Chonco.

CHAIRPERSON: Dr van Wyk?

CROSS-EXAMINATION BY MR VAN WYK: Thank you, Mr Chairman. Mr Simelane, can you tell the Committee, on that specific day, who issued the firearm to you. I'm specifically referring to the shotgun.

MR SIMELANE: The shotgun that I had that day had been issued at the office, that is the office of the guards of the African National Congress. I don't remember the name of the person who was actually issuing out the guns.

MR VAN WYK: Was a register kept in respect of arms and ammunition being issued?

MR SIMELANE: I did not write it down.

MR VAN WYK: Do you know whether the person who issued it wrote it down?

MR SIMELANE: I don't have any clarity.

MR VAN WYK: You say you don't have clarity, do you mean you have no recollection, or independent picture of the day that you received the firearm?

CHAIRPERSON: No, no, no, wait, wait, he has no picture of the day, or is it in connection with the issue of the firearm?

MR VAN WYK: In respect of the issuing of the firearm.

CHAIRPERSON: Yes.

MR VAN WYK: Thank you, Mr Chairman.

MR SIMELANE: I think I can explain this briefly, I don't remember as to who actually gave me the firearm, that's what I'm explaining.

MR VAN WYK: Do you recall how many rounds were issued to you?

MR SIMELANE: I had six bullets or six rounds.

MR VAN WYK: How many did you use on that day?

MR LAX: Sorry I didn't hear the question.

MR VAN WYK: I'm sorry, how many did you use on that day?

MR SIMELANE: I used only one.

MR VAN WYK: What happened to the other five rounds?

MR SIMELANE: I returned them the following day when I was returning the shotgun.

MR VAN WYK: To whom did you return it?

MR LAX: Mr van Wyk, I'm sorry to cut you short, can you just wait a short second, there seems to be a slight delay when the person's finished translating and then they change the mechanism over so that your voice becomes clear.

MR VAN WYK: Thank you, Mr Commissioner, sorry. Do you recall to whom you returned the five rounds?

MR SIMELANE: No, I do not.

MR VAN WYK: Do you recall as from what time that morning you were in the basement at Lancet Hall?

MR SIMELANE: I'm not sure as to what time I started, it was only in the morning, I think just after 08h00.

MR VAN WYK: Do you recall what time you left the basement on that specific day?

MR SIMELANE: The following day, but I don't remember the time.

CHAIRPERSON: No, no, wait, the following day. You're question was, what time he left the basement, isn't it, on that day?

MR VAN WYK: That is correct, Mr Chairman.

CHAIRPERSON: Yes. You were in the basement, you've told us, what time did you leave the basement?

MR SIMELANE: I worked the whole day and the whole night at the basement and I only went out on the following, except when going to the loo.

MS KHAMPEPE: Sorry, Chair, the Interpreter is saying "I left the following day", he says "I left on occasion to go to the toilet."

CHAIRPERSON: ...(inaudible)

INTERPRETER: It was pointed out.

MR SIMELANE: I started working in the morning, the whole day, the whole night.

JUDGE NGCOBO: What time did you leave work?

MR SIMELANE: The following day in the morning.

JUDGE NGCOBO: But you did go to the loo and come back?

MR SIMELANE: Yes, that is correct.

MR VAN WYK: Now in respect of the incident that occurred in Jeppe Street, in front of Lancet Hall, did I understand you stand you correctly, you were present when those shots were fired, is that correct?

MR SIMELANE: Yes, that is correct.

MR VAN WYK: Could you mention to the Committee how many ANC members of security guards were at the entrance of Lancet Hall during that incident?

MR SIMELANE: On that stage I could say that I saw about 4 or 5 of the guards, but I'm not sure about the exact number.

MR VAN WYK: Do you know their identities?

MR SIMELANE: I can't remember all of them, I do remember one in particular.

MR VAN WYK: And is that the man who fired the warning shot into the air?

MR SIMELANE: Yes, that is correct.

MR VAN WYK: Did you see any of your colleagues also firing shots, that is now at the entrance of Lancet Hall in Jeppe Street?

MR SIMELANE: I do not remember seeing any one of them, except the one that I've specifically mentioned.

MR VAN WYK: Now this man that you saw firing, do you have any independent recollection as to how many shots he fired?

MR SIMELANE: I do not remember, but I do remember that I saw him pointing his firearm up towards - I think, if I'm not mistaken, he shot only once, but I'm not sure, I can't vouch that he did.

MR VAN WYK: Could it be more that one shot?

MR SIMELANE: I've already said that I do not vouch as to how many times he shot.

MR VAN WYK: Can you mention to the Committee, how many shots did you hear ringing out that morning, at the entrance of Lancet Hall in Jeppe Street whilst you were standing there?

MR SIMELANE: I don't want to lie, I don't remember. I did hear some gunshots, but I cannot say how many.

MR VAN WYK: Let me clarify one point, do you agree that in respect of the group of Zulus that you referred to that came past that morning, there were no shots fired from them towards you guards, is that correct?

MR SIMELANE: Could you please repeat your question and put it in clearer form please, I don't understand it.

MR VAN WYK: I'm referring to that morning in Jeppe Street, in front of Lancet Hall, whilst you were standing there with your colleagues, when you referred to one of the Zulus that had a speargun forward, do I understand you correctly that at that stage none of these Zulus had firearms and shot in your direction. Is that correct?

MR SIMELANE: Yes, that is correct.

MR VAN WYK: Now, at the inquest we heard evidence of two Dlamini brothers who said that they walked past Lancet Hall at the entrance that morning, did you hear their evidence at the inquest?

MR SIMELANE: Unfortunately I did not.

MR VAN WYK: Did your legal representatives bring their evidence under your attention as to what they said at the inquest?

MR SIMELANE: As I've already explained, that I did not hear any of the evidence and I did not even request my attorneys to tell me as to what was said, because I don't know how it involves me.

MR VAN WYK: Now, you did not request your legal representatives, but did they tell you what these two Dlamini's testified at the inquest, was it brought under your attention?

MR SIMELANE: I wasn't interested to know as to what evidence they tendered before the court, because it concerns me in no way. ...(no English translation)

MR LAX: Sorry, we couldn't hear your translation, we suddenly got the Zulu in our ears, if you could please translate the answer.

INTERPRETER: Is there a problem with the translation?

MR LAX: Sorry, are you saying there's a problem.

MS KHAMPEPE: Apparently there is a problem.

INTERPRETER: There is - there was a problem, I don't know whether it's fixed, can you hear me?

MR LAX: We can hear you now, yes. Could you just repeat the answer please.

MR SIMELANE: As I've already explained, I wasn't even interested to hear as to what evidence they had tendered before the inquest court, because as far as I'm concerned this doesn't have any particular meaning to me, even if my attorney had told me, I don't think it involves me in any way, I don't even want to know what is going on, because I'm not connected to that, and I'm not interested.

MR VAN WYK: Mr Simelane, we know of two incidents on that specific day that occurred at Lancet Hall. There was a first incident in Jeppe Street where the two Dlamini's were shot and injured and then we know of a second incident at the garage of Lance Hall in Van Weilleigh Street, where we know that Mr Chonco was shot and he was found lying in close proximity - about 3 metres from the garage door of Lancet Hall, those are the two incidents I'm referring to. Did you know of any of those two occurring on that day?

MR SIMELANE: I'll just answer you briefly. I heard about Mr Chonco the following day that there is a certain man who had been shot at close proximity to the gate in Von Weillich Street, and as you put it. I do understand what you're saying to me, there's absolutely nothing I can say with regard to that matter because if we can follow that matter up, especially the doctor's report and the ballistic experts, it is said that this person had been shot or an AK47 R1 riffle to R5 was used, so that does not involve me at all.

CHAIRPERSON: Just answer, what do you know about the fact that the two Dlamini brothers were shot also that day, what do you know about that?

MR SIMELANE: I know nothing about the two Dlamini brothers.

MR VAN WYK: Mr Simelane, I'm going to put it to you that you're not honest with this Committee, those two Dlamini brothers were shot at that incident in front of Lancet Hall, and both of them were shot and injured from behind. Have you got any comment on that?

MR SIMELANE: I've already said there's absolutely nothing I can say about it, because I do not even know the people that you're referring to.

MR VAN WYK: I'm going to put it to you, you can do something about it and you can disclose who is the guard that shot the Dlamini's whilst they were running away.

MR SIMELANE: I've come before this Committee to disclose whatever I know and now you want me to lie and say I know things that I do not. That's your own version.

MR VAN WYK: Well certainly you will agree that the shot being fired into the air could not have struck the Dlamini's. Do you agree with that?

MR SIMELANE: Yes, that is correct.

MR VAN WYK: And I'm going to argue later on, I'm going to put it to the Committee also, that the Dlamini's testified that they were shot by these guards in front of Lancet Hall. You say you don't know anything about that, is that correct?

MR SIMELANE: Yes, that is true, I know nothing about that.

MR VAN WYK: Do you have any knowledge of AK47 assault rifles in Lancet Hall on that day?

MR SIMELANE: I do not know that.

MR VAN WYK: Has it been brought to your attention that after the incidents of that morning a video cameraman entered the building of Lancet Hall and that AK47 cartridges were photographed on the parapet of Lancet Hall?

MS KHAMPEPE: Shall we get the record straight, it was not AK47 cartridges, it was one cartridge.

MR VAN WYK: At least one round - cartridge. Do you have knowledge about that?

MR SIMELANE: I know nothing about that.

MR VAN WYK: Do you have any knowledge of the people that testified that they saw some of the ANC security personnel or guards picking up AK47 cartridges on the roof whilst the Policemen was there in their presence, have you any knowledge of that?

MR SIMELANE: Chairperson and members of the Committee, I think I did specify my evidence which if that I was at the basement and whatever was found somewhere else is something that I have no knowledge of.

MS KHAMPEPE: Mr Simelane, could you please just be brief when you answer questions. If they need any explanation, they will specifically request it. Could you please just answer yes or no.

MR VAN WYK: Have you heard from any of your colleagues at Lancet Hall about this AK47 in Lancet Hall, or the cartridges that were on the parapet?

MR SIMELANE: Nobody told me that.

MR VAN WYK: During your - the time that you were on duty at the garage, where you and Vusi the only two ANC members that were in the garage that morning?

MR SIMELANE: That is correct.

MR VAN WYK: The firearm that Vusi had, do you know whether it was his personal firearm, or whether he had been issued it by the ANC?

MR SIMELANE: I think it was his personal firearm.

MR VAN WYK: Now you testified that you were at the bottom, at the garage and you heard shots in the street, do I understand you correctly that you, Vusi then approached the gate, is that correct?

MR SIMELANE: When the shots started ringing, we were already at the gate or next to the gate.

MR VAN WYK: You say next to the gate, approximately how far would that be then from the gate? Could you indicate here sitting please.

MR SIMELANE: It could have been a metre of two from the gate.

MR VAN WYK: Did you then at that stage see the marchers approaching the gate whilst you were standing there at the gate, is that correct?

MR SIMELANE: There were shots that rang and they stopped for quite a while. Thereafter we saw the marchers when we had come to open the gate.

MR VAN WYK: Could you indicate to the Committee how many marchers were there that you saw that wanted to open the gate?

MR SIMELANE: It was a group of people.

MR VAN WYK: Could you give us an indication, approximately how large was this group, ten people, five people, a hundred people?

MR SIMELANE: I would not be able to give you the number that you need, as I've already pointed out it was a group, there were not five, there were not hundred either, but it was quite a large group.

MR VAN WYK: Let's clarify one point, do you agree that you did not see any firearms with them, is that correct?

MR SIMELANE: That is true.

MR VAN WYK: Now, this person or persons that tried to open the gate, let's clarify it, how many people did you see were trying to open this gate, was it one person or more than one?

MR SIMELANE: It was a group and a part of the group tried to push to gate open. The others were pushing the other gate and the rest were pushing to other one, trying to push it open.

MR VAN WYK: Did you then speak to them?

MR SIMELANE: No, I never talked to them.

MR VAN WYK: Why did you not order them to leave the property alone, or to get away from the gate, because you were armed at that stage?

MR SIMELANE: In a war situation when your enemy does something, you don't reprimand your enemy. It was a war situation, these people were surging forward, they were in a warpath and there was absolutely no way I could to them or try to communicate with them.

MR VAN WYK: Do I understand you correctly, you don't reprimand you repel them, is that correct?

MR SIMELANE: If people are attacking you, there is no way you can repel them by talking to them, they will do whatever they want to do. So it was a war situation, they were doing what they deemed was right, and I did what I deemed fit.

MR VAN WYK: What made you think they were attacking you, and not forcing the gate open?

MR SIMELANE: As I've already explained, that I had prior knowledge to the fact that the offices of the African National Congress were going to be attacked, and the way that they opened the gate, it indicated to me what they wanted to do, they didn't come to just converse with me.

MR VAN WYK: This information that you had, did you convey it to your seniors?

MR SIMELANE: My seniors are the ones who conveyed it to me.

MR VAN WYK: Do I then understand you correctly, whilst they were trying to open this gate and force it, that is when you fired a shot, is that correct?

MR SIMELANE: I left them for a while until such time that I realised that they were actually opening the gate, that's when I started shooting.

MR VAN WYK: How long did the shooting take?

MR SIMELANE: I shot only once, so I don't know how long that lasts.

MR VAN WYK: At that stage the gate was full of people?

MR SIMELANE: That is correct.

MR VAN WYK: You fired the shot directly into the crowd, is that correct?

MR SIMELANE: According to my recollection, I was shooting my rifle facing downwards towards the gate, but according to the ballistic evidence, it indicates otherwise.

JUDGE NGCOBO: Mr Simelane, could you please just forget about the ballistic evidence, just tell us what you did and what you saw.

MR SIMELANE: Yes.

MR VAN WYK: So can you explain to the Committee where did you aim when you fired the shot?

MR SIMELANE: I think my gun was on the hip level and I pointed the gun towards the feet of the people who were standing at the gate or in front of the gate and trying to push it.

MR VAN WYK: Was there any possibility that you could have missed the crowd in front of you?

MR SIMELANE: Could you repeat the question, it's not clear.

MR VAN WYK: The way that you fired that shot, is there any possibility that you could have missed the crowd, and not injure or kill anybody?

MR SIMELANE: I wouldn't know what happened after I had shot.

MR VAN WYK: Sir, you are a few metres from this crowd trying to open the gate, you're firing a shot directly in their direction. Now, my question is, I want to know from you if you can assist the Committee, was there any possibility that you could have totally missed all these people in front of you, and not injure or kill any one of them?

MR SIMELANE: When you're handling a firearm anything can happen. You cannot pinpoint as to what happened or did not happen, especially if you have no clarity, like I have no clarity, but there are many possibilities when you're handling a firearm, and the possibility is 99% out of 100 that there were people or a person injured or killed when I fired.

MR SIMELANE: Sir, in other words, after firing the shot, you realised that the way you handled the arm when you fired the shot, people must have been hit by your shot, is that correct?

CHAIRPERSON: Your question is, did he realise when he fired, or are you asking him does he realise now?

MR VAN WYK: Mr Chairman, at that time.

CHAIRPERSON: At that time.

MR SIMELANE: At that time it never occurred to me because I did not see any particular person falling or being injured.

MR VAN WYK: Is your evidence therefore that at that time you did not know that anybody had been hit, is that correct?

MR SIMELANE: That is true.

MR VAN WYK: Is your evidence also that at that time you did not think that anybody was injured?

MR SIMELANE: That is true.

MR VAN WYK: Mr Simelane, I want to put it to you, that the evidence you're tendering now is in conflict with what you testified at the inquest, and I'm going to refer you to page 2170 of the inquest record where a similar question was asked to you, and I'm going to read the question reply to you,

QUESTION: "But you knew you had shot into a crowd of"

Page 2170 right at the bottom, the question was,

"But you knew you had shot into a crowd of people and you must have hit someone, correct?"

And the reply was,

"Yes, that is so."

I see you're still looking for the page, it's page 2170 Mr Simelane.

MS KHAMPEPE: I think just give an indication to him of the line.

CHAIRPERSON: At the bottom. See, at the bottom of the page, the last paragraph.

MR VAN WYK: It is at the bottom of page 2170, the last paragraph, Mr Simelane, do you see it?

MR SIMELANE: Yes, I do see the paragraph you're referring to, it goes on to 2171 and you will get the explanation that you need if you read it in its entirety, and not read it selectively, that is how I explained it at the inquest.

MR VAN WYK: ...(inaudible) contradiction.

MR SIMELANE: I've already said to you that I knew that if I shoot towards the crowd that chances are 99% that a person might get injured or killed. This is what I have just said now when I was delivering my evidence, that is what I said at the inquest court as well. So that is what I was explaining, and it's still written here on page 2171.

MR VAN WYK: Now, in the light of what you're saying and the shot that you fired, why did you not go and look or send anybody to find out, even if you don't go yourself, send somebody to go and have a look, is there anybody lying in the street at the entrance of the garage in Von Weillach Street that might have been struck with your shot.

MR SIMELANE: Let me put this clear to you so that we stop clutching at straws, we know that at that time Inkatha and the ANC, we're not seeing eye to eye, they are arch rivals. There was absolutely no need on my part to be bothered about any people who was at the gate, there was absolutely no need. That is true and you know it as you're sitting there.

MR VAN WYK: Do I then understand you correctly that your attitude was that, even if you did - well you did fire the shot, even if somebody was injured or killed from that shot, you did not worry about it?

CHAIRPERSON: I think that is more or less what he's saying, isn't it?

MR VAN WYK: Thank you, Mr Chairman. Does that explain your attitude you had towards Zulu people?

MR SIMELANE: That is not my attitude toward Zulu's, I'm a Zulu myself, my surname is Simelane. That was the attitude I had towards people of the Inkatha Freedom Party or members, and not Zulu's in particular, get that clear.

MR VAN WYK: Did you later at that day, or at any other stage, explain or report to your superiors that you fired a shot?

MR SIMELANE: Yes, I did, I told Mr Khumalo that I shot because there was an urgent need upon my part to shoot marchers, that is IFP marchers, and not Zulu's who wanted to gain entry into the building.

MR VAN WYK: How did you know that these people were IFP supporters?

CHAIRPERSON: He'd already been told that there was going to be a march by the IFP people by the officers of the ANC, we've got that already haven't we?

MR VAN WYK: Thank you, Mr Chairman, I want to know, is that the only information in respect of the march and these marchers they had, and nothing in respect of the marches at the scene, I mean, their clothing, did they flags, did they have T-shirts.

CHAIRPERSON: Were these people carrying any weapons such as knob kieries, pangas, assegais?

MR VAN WYK: That is correct, they had an assortment of weapons. I wouldn't really say they were traditional weapons, but I would say they were war weapons, traditional war weapons. These are the weapons that they had.

MS KHAMPEPE: The attorney wants to know as to what made you align these people with the Inkatha Freedom Party, what is it that you saw, was it a flag that they had, or some type of apparel that they had that indicated that they are members of the IFP.

MR SIMELANE: I could say that amongst the group at the gate who were singing, they were singing IFP songs, not traditional songs.

MR VAN WYK: Do you know of the closed circuit monitor that was at Lancet Hall on that day?

MR SIMELANE: Yes, I do.

MR VAN WYK: Do you know who was in charge of that monitor on that day?

MR SIMELANE: No, I don't.

MR VAN WYK: Do you know whether any recordings are being made in respect of this closed circuit monitor?

MR SIMELANE: No, I don't.

MR VAN WYK: Do I understand your evidence correct, you say that during that whole morning you were the only person in the basement who fired a shot towards the marchers, is that correct?

MR SIMELANE: Yes, that is true.

MR VAN WYK: And do I understand you correctly, your attitude is still, you did not have an AK47 with you and you did not fire with an AK47, is that correct?

MR SIMELANE: That is true.

MR VAN WYK: Just one point I want to clarify with you, that whole day you made no enquiries as to the fact whether anybody was injured or killed outside Lancet Hall at the garage, is that correct?

MR SIMELANE: That is true.

MR VAN WYK: Why didn't you make enquiries, is it because you knew that somebody had been shot already?

MR SIMELANE: I have already explained, I've put it clearly, I said Inkatha were our arch rivals. As to whether there was anybody injured or killed, that was none of my concern, I was just less concerned.

MR VAN WYK: Even if you yourself fired the shot, you did not concern yourself with it, is that what you're saying?

MR SIMELANE: I've already said it, I'm not going to answer that anymore.

MR VAN WYK: Is that because you hate the IFP?

MR SIMELANE: No, that is not it. Just refer to the past, it's because we were arch rivals, at that time we didn't see eye to eye, and that is not the situation at present.

MS KHAMPEPE: Mr van Wyk, haven't you covered this ground already?

MR VAN WYK: Partially, as you please, Commissioner.

CHAIRPERSON: ...(inaudible) not because they were rivals or not, but because there was an attack at the gate, is it not the real reason why he said he fired?

MR VAN WYK: I'll take it up with him, Mr Chairman.

CHAIRPERSON: Yes.

MR VAN WYK: Do I understand you correctly, that the reason why you fired was because these people tried to force open the gate, is that why you fired the shot?

MR SIMELANE: That is correct.

MR VAN WYK: And then you feared for you life, is that what you're saying?

MR SIMELANE: Yes, for my life as well as the life of the workers who were inside that building, as well as leaders of the ANC, as well as the property within the building itself.

MR VAN WYK: When you fired that one shot, what happened then to the crowd?

MR SIMELANE: They dispersed and ran away to different directions.

MR VAN WYK: But Mr Chonco was shot and killed in front of that gate, he was shot with an AK47, and I'm going to put it to you that that bullet emanated from the basement where you were.

MR SIMELANE: I think that's a blue lie.

MR VAN WYK: I just want to clarify one aspect, you're not applying for amnesty for shooting Mr Chonco with an AK47, that is not your application, is that correct?

MR SIMELANE: Yes, that is true.

MR VAN WYK: I've no further questions, thank you, Mr Chairman.

CROSS-EXAMINATION BY MR PRETORIUS: Mr Chairman, just a few aspects I would like to put to the witness. If I may just refer the Committee to page 1044 of the inquest record and further, I'm not going to quote it in full. Mr Simelane, a member of the public who was on her way to work, a certain Mrs Prinsloo, saw the incident at the entrance of Lancet Hall, and

gave evidence at the inquest court about that. Her evidence in a nutshell is, that the two Mr Dlamini's were shot from behind whilst they were running away from the guards.

MS MORAKA: Chairperson, the record will not indicate that that is what Ms Dawn Prinsloo said. Ms Prinsloo talked about people who were shot at, she did not know who they were. In fact, she talked about marches and the two Dlamini's, saying they were not part of any march.

CHAIRPERSON: Mr ...(inaudible), so you're not precise then.

MR PRETORIUS: Mr Chairman, giving that whole day at Lancet Hall at far as occasions were concerned that there was shooting, there were only two occasions when shooting erupted around Lancet Hall. The one occasion was at 08h00 right in front of the entrance of Lancet Hall. That is the occasion that the two Mr Dlamini's were injured. Mrs Prinsloo testified as to that occasion.

CHAIRPERSON: She says she saw two people being shot?

MR PRETORIUS: She saw people being shot at, and she saw one grabbed his ankle as they were running away. She explained the whole incident the way she saw it. If my learned friend now suggests that there was another occasion when the two guards - when there was more than one guard, it was three guards she explained, were shooting at people outside Lancet Hall, then she must indicate to us that now, so that we know exactly what occasion she's referring to.

CHAIRPERSON: Well now, let's put it this way, I haven't heard any evidence of how many people fired from Lancet Hall yet. You tell me that there were two firings, two shootings and so on, but I haven't heard any evidence about that.

MR PRETORIUS: The evidence of this witness confirms it, he testified to that two occasions. In the first place he testified about the occasion at 08h00 in the morning at the entrance of Lancet Hall, that's the entrance in Jeppe Street, Mr Honourable Chairman. On the second occasion, that was the occasion that was referred to later on when Mr Chonco was killed.

CHAIRPERSON: He heard the firing whilst he was in the basement isn't it?

MR CURRIN: Correction Chairperson, he heard the firing while he was in the foyer.

CHAIRPERSON: He was in the foyer, I'm sorry, my apologies.

MS MORAKA: Chairperson, just for the sake of clarity, all that I'm indicating to my learned friend and to the Committee was that he must quote the witness correctly, the witness did not talk about the two Dlamini's. She did not know who the people who were injured were. I was just saying my learned friend must be precise when he quotes the record.

CHAIRPERSON: Mr Pretorius is the position that this witness, Ms Prinsloo, says she saw two people who were shot, they turned out to be ...(intervention)

MR PRETORIUS: That is the correct position.

CHAIRPERSON: Well, let's put correct, you didn't say - you told him two Dlamini's were shot, he won't know they were two Dlamini's that were shot. You heard that there's a witness who gave evidence at the inquest to say that she saw in front of Lancet Hall two people who were shot, not injured, did you hear that evidence?

MR SIMELANE: Chairperson and members of the Committee, I had said before that my attorney wanted to explain to me about the two Dlamini's who got injured at Jeppe Street, but I had already indicated before that I told her that I do not think this matter concerns me, so I have nothing to say about the two Dlamini's. I did not see when they got shot, so there's absolutely nothing I can say about the two Dlamini's.

CHAIRPERSON: Yes, please proceed.

MR PRETORIUS: Mr Simelane, is it your evidence that the door to the garage was actually broken by the marchers as they attempted to gain entrance to the garage?

MR SIMELANE: That is correct.

CHAIRPERSON: ...(inaudible) in front of the gate, did it? Is it the gate or the door?

MR PRETORIUS: It is the gate.

CHAIRPERSON: Yes.

MR PRETORIUS: Mr Simelane, I put it to you as well, that that is a lie, a Police Officer, Mr Potgieter, testified that he after the shooting wanted to gain entrance to Lancet Hall, and he in fact forced that gate open as to gain entrance to Lancet Hall. Any comments on that?

MR SIMELANE: I do not know Mr Potgieter, but what I said is that the IFP marchers tried to open the gate forcefully and I shot with the gun that I had in my possession, and I did not see anybody getting injured, that's all I can say.

JUDGE NGCOBO: Listen to the question please. It's being put to you that a Policeman who went there found that the gate was intact. He even tried to open the gate forcefully himself, now, which means that the gate was still intact. Now the attorney wants to know as to what you have to say about that, what's your comment on that.

MR TIPP: ...(inaudible) trying to explain to the Committee because the member of the Committee is talking about an event that occurred - I think my learned friend is referring to an event that occurred in the early morning, and ...(intervention)

MR PRETORIUS: I'm not referring to the event, I'm referring immediately after the garage incident.

CHAIRPERSON: Was there evidence that the gate was intact when Mr Potgieter tried to work on it?

MR PRETORIUS: Indeed, sir, and his evidence was also that he forced that gate open and that he did gain entrance to Lancet Hall through that way.

CHAIRPERSON: Yes. Have you any comment to make about that evidence?

MR SIMELANE: Maybe Mr Pretorius is making a mistake. If you do read the inquest record, this Potgieter that you are referring to talks about the 08h00 incident and not the 10h00 incident. Could you please read the record properly, then you'd see what I'm referring to.

MS MORAKA: Chairperson, I've just been alerted to a statement I know you did - a statement by Mr Potgieter at the inquest indicated that he was talking about an earlier event.

MR KHAMPEPE: You are referring to the event that occurred in the foyer.

MS MORAKA: Your evidence - the evidence of Mr Potgieter in a nutshell, was that there was an event at roundabout 08h00 in the morning, he then ran to Lancet Hall, was unable to gain entry in the front and went and forced entry at the back. The reference would be his statement A35.

MS KHAMPEPE: May I just get clarity, Ms Moraka, was he referring to the incident that happened at the foyer of Shell House?

MS MORAKA: Yes, he was.

MR LAX: Mr Pretorius, my recollection of reading Judge Newgent's findings was that after that first incident, Policemen did indeed try to gain access to the building, and someone did force some side entrance, I'm not clear on it, that was my recollection that something like that happened. Whether that was part of it or not, obviously you can set us right, but I do recall something to that effect.

MR PRETORIUS: Mr Chairman, we intend calling Mr Potgieter. I think he can explain that, but be that as it may, it doesn't matter what incident it was referred to, fact of matter is that there's a Policeman who testified that that gate was broken by him, and not as this evidence indicates that it was forced and broken by a marcher.

MR LAX: Mr Pretorius, obviously if it was broken earlier in the morning, that strengthens this witnesses evidence.

MR PRETORIUS: Be it as it may, let's hear from Mr Potgieter what happened. I don't think we can speculate now. ...(inaudible) have the stuff before us.

JUDGE NGCOBO: Do you deny this evidence Mr Simelane, that is Mr Potgieter's evidence? Was he referring to another incident and not the one that you're referring to you or the one ...(intervention)

MR SIMELANE: That is correct, Chairperson.

JUDGE NGCOBO: Is it possible, Mr Simelane, according to your knowledge or your recollection that the gate was broken into by somebody or some people - the marchers were forcefully trying to gain entry?

MR SIMELANE: That is correct.

JUDGE NGCOBO: Now, could you please just explain that the gate was broken - how was it broken, in what manner, can you just explain?

MR SIMELANE: This gate is a two-way gate. It opens - it's a two-way gate that opens from inside and both gates come back together again. It's an electronic gate and if you try to push it, it will not get open unless you use extreme force. Then if you use extreme force it tends to cut out the electric with the electronic workings of the gate, because you've forcefully opened it and the machinery or the electronics of the gate get tampered with.

CHAIRPERSON: ...(inaudible) anybody, any Policeman entering that gate that morning?

MR SIMELANE: I never saw him with my own eyes, but as I've been reading the judgement at the inquest I saw that type of evidence.

CHAIRPERSON: ...(inaudible) what the judgement says and what the record says, just concentrate, we're concerned with what not what others say. You were in the basement the whole time as I understand your evidence, is that not so?

MR SIMELANE: Yes, that is correct.

CHAIRPERSON: A Policeman attempted or tried, and succeeded in getting through that gate, is there any reason why you wouldn't know about it?

MR SIMELANE: I did not see any Policeman coming through that gate, I don't remember such an incident and there is no such Police who did that, that is the evidence I'm giving before this Committee.

CHAIRPERSON: Very well, carry on.

MR PRETORIUS: Mr Simelane, are you aware that Mr Chonco was also shot in the back?

MR SIMELANE: I heard that when the ballistic reports were read, but according to my knowledge I never saw him and I never saw any of what you're referring to.

MR PRETORIUS: Mr Simelane, this Committee has heard about three incidents where shooting took place outside ANC offices that day, and particularly where people were injured or killed. I'm going to put this to you to try and give an explanation to it, or if you want to forward an explanation. The one is, outside Shell House where the majority of the people that died were shot in the back, are you aware of that?

CHAIRPERSON: You say, are you aware of that, do you mean, were you told about it?

MR PRETORIUS: Correct, was he told about it.

MR SIMELANE: Yes, I did not know that before, I've just heard it before this Committee as it's been explained throughout.

MR PRETORIUS: The second incident was at the front entrance of Jeppe Street where the two Mr Dlamini's were also shot from behind. Are you aware of that?

MR SIMELANE: I did not know that before and I did not see it, but I can hear it as you try to explain it.

MR PRETORIUS: The third incident is the one outside the garage door where Mr Chonco got killed, and he also got killed from a shot from behind.

MR SIMELANE: Yes, I did not personally know it until after the ballistics as well as the medical evidence was read.

MR PRETORIUS: On those three occasions, or in regard to all three occasions, the defence of the ANC guards are that these people attacked them.

CHAIRPERSON: Are you asking him to comment on the evidence we've heard.

MS MORAKA: Perhaps, I'm sorry that I'm interrupting, with relation to the death of Mr Chonco, there is no evidence before this Committee, there was no evidence before the inquest, that Mr Chonco was shot by any member of the ANC, so again, when my learned friend asks a question, he must be very specific.

MR PRETORIUS: Mr Chairman, I'm putting it to this witness and I'm laying a foundation to put it to him on that basis that the ANC guards are telling a blatant lie about people attacking buildings, as it is quite apparent that on all three occasions the people were shot in the back.

CHAIRPERSON: I understand that to be the common argument, that gives rise to all the questions that were put, that's hardly a question you are putting to him now, is it?

MR PRETORIUS: I'm merely putting it to him for him to try and give an explanation if he wanted to, Mr Chairman.

JUDGE NGCOBO: Did you hear the question?

MR SIMELANE: I don't know whether it's a question or a comment or what, I don't know what Mr Pretorius is saying, it's just not clear to me as to what he's saying.

JUDGE NGCOBO: What is being said is that the people who died or who were shot, it has been discovered that they had been shot from the back. Now the ANC guards allege that the time that they shot, they shot at people or a group who were attacking. Now what Mr Pretorius is explaining is that, if people were shot from the back and had been injured at the back, it means these people were either retreating or running away, and not attacking as it has been alleged, therefor the ANC as well as its guards are not telling the truth when they say that they were shooting at people who were actually attacking. Do you understand what I'm saying?

MR SIMELANE: Yes, I do understand that explanation, but what I'm not in agreement with is - what I can just say is that I do not agree with what he's saying.

MR PRETORIUS: Mr Simelane, why is it that only after the inquest had been going on for some time and His Honourable Judge Newgent insisted and told the ANC that he insisted they bring the guards forward that shot at Lancet Hall. Why is it only then that the guards, after all those years, were prepared to come forward and identify themselves?

MR BIZOS: Mr Chairman, there is lengthy correspondence, Mr Chairman, between the Investigating officers and the Attorney-General's office. It is not correct to put that there were such persistent requests in relation to Lancet Hall, they almost invariably referred to Shell House.

CHAIRPERSON: ...(inaudible) a chap who was working in the basement and so on, what would he know about all these efforts and how will he be able to give any sensible answer a question like that?

MR PRETORIUS: Mr Chairman, I'm going to argue that they were in fact and indeed are even doing it now, hiding the true facts and that is the reason why they do not want to come forward.

CHAIRPERSON: Well you may say that, but to ask this witness about it, that's my question.

MR PRETORIUS: In regard to my learned friend, Mr Bizos's remark, may I please read to you page 1086 of the record ...(intervention)

CHAIRPERSON: Please, you will address us when the time comes, really. Mr Bizos and you both can address us at that time. Let's just deal with the questions you want to put to this witness so we can dispose of him.

JUDGE NGCOBO: Mr Pretorius is it your suggestion to this witness as well that he did not come forward earlier on because he, together with the other security guards, were trying to hide the truth?

MR PRETORIUS: Indeed sir. That is what I'm putting to this witness.

MR LAX: Do you understand, Mr Simelane, it's being said to you that you and other witnesses deliberately hid the fact of your involvement, and that's why you didn't come forward. Have I put it correctly, Mr Pretorius?

MR PRETORIUS: Indeed, sir.

MR SIMELANE: What Mr Pretorius is saying is not true, and I don't think I can debate that with him, except for telling him that he's not telling the truth, because he does not know what was happening. Maybe if he can find out from the Attorney-General as well as the judge who conducted the inquest, he will discover that what he's saying is absolutely not true.

CHAIRPERSON: Mr Pretorius, you're accusing the witness of lying and he's saying you are not telling the truth, where does that get us?

MR PRETORIUS: Well, Honourable Chairman, I can easily prove that I'm telling the truth if I can just refer you to page 1086 of the record, but I'll leave it at that because that will be addressed in argument before you. Besides that I've got no further questions besides stating that anyone that I appeared for in relation to Mr Chonco or the two Dlamini's deny that they ever attacked Lancet Hall.

MS KHAMPEPE: Just one question, Chair, you were asked by - about the Police Officer, Mr Potgieter, and then a question was asked by the Chairperson as to - the Chairperson stated that you had been at the gate the entire time, ...(intervention)

CHAIRPERSON: The basement.

MS KHAMPEPE: I mean the basement, can you explain to the Committee at what stage you went to the basement, because according to your evidence, let me give you an opportunity to explain what time you got to the basement.

MR SIMELANE: As I've already explained that after the incident at the foyer Mr Khumalo came to me and told me that I should go to the basement and help the other guard who was at the basement, that is the late Vusi Vilakazi, that is when I left the foyer and went to the basement. I cannot say whether it was 08h00, 08h15 or 08h30, but what I'm sure about is that it was after 08h00, that is after the incident at Jeppe Street.

MS KHAMPEPE: Thank you, Chair.

JUDGE NGCOBO: Mr Simelane, when you gave your evidence you told us that there was a time where you were a metre or two from the gate, do you still remember that?

MR SIMELANE: I did not hear that question.

JUDGE NGCOBO: When you gave your evidence you said that there was a time when you were about a metre or two from the gate, is that correct?

MR SIMELANE: That's just an estimation. Maybe it's when I was telling you that I was patrolling, yes, there is such a time.

JUDGE NGCOBO: Now at the time when you started shooting, do you still remember as to how far you were from the group that you were shooting at?

MR SIMELANE: I wouldn't say exactly as to how far or near I was, but I think I can estimate, it could have been 4 - 5 metres from the gate at the time that I started shooting.

JUDGE NGCOBO: Now at the time that you were shooting amongst the marchers, were there any who had already gained entry?

MR SIMELANE: Yes, that is correct, the gate was not slightly open. There was some space for people to gain entry, that's when I started shooting.

JUDGE NGCOBO: And when these people came in were they coming in forcefully one by one or in what manner?

MR SIMELANE: That is correct, they were running, they were angry and they were entering forcefully.

JUDGE NGCOBO: And the ones who had come in were armed?

MR SIMELANE: That is correct.

JUDGE NGCOBO: Now was it at that time that you started shooting?

MR SIMELANE: That is correct. As I've already pointed out that my gun was a hip level, I pointed my gun towards the gap that had been open and through which those people were forcefully entering.

JUDGE NGCOBO: Were you able to see after you had fired as to what happened to the group that had already gained entry?

MR SIMELANE: Though I don't remember quite clearly, what I can say is that they got scattered and immediately after having fired the shot, when the other group dispersed I poked my gun once more and I retreated, and I told myself that if they proceed towards me I will fire once more.

JUDGE NGCOBO: And what about the ones who were inside already?

MR SIMELANE: They turned and ran away.

MR CURRIN: Just one aspect, Mr Simelane, this gate you're talking about is presumably in a driveway of some sort that goes down into the basement, you've said it's a parking garage, is that right?

MR SIMELANE: Yes, that is correct.

MR CURRIN: How far from the entrance where the pavement is, in other words where the building would stop, is this gate into the driveway?

MR SIMELANE: The driveway starts from the street or from the road up to where the building starts, then you past the first gates, that is the ordinary gates that are locked manually, then you proceed into the building. As you get into the building, you get these electronically operated gates which are right inside the building itself.

MR CURRIN: The question I'm asking you is, how far do you have to go right into the building before you come to the gate, approximately? Could you point out for us here, if you're not sure the actual distance.

MR SIMELANE: I don't think I'll be able to do that because it's a long time since I haven't been to the building, but it's not a long distance, maybe let's say from the gate to the pavement it could be 3 - 4 metres, that's just an estimation, I'm not very positive about that.

MR CURRIN: ...(inaudible) one car width, two car widths?

MR SIMELANE: It a two car driveway because when the other car comes in the other one may get out.

MR CURRIN: How far roughly were you away from the crowd, from the gate, let's say the gate?

MR SIMELANE: It could have been 4 - 5 metres, that's just a rough estimation, but I'm not sure.

CHAIRPERSON: We'll take a short adjournment now and resume in 15 minutes.

HEARING ADJOURNS

ON RESUMPTION

MR BIZOS: Mr Chairman and members of the Committee, that concludes the oral evidence which we intend presenting to the Committee at this stage and we reserve our right in relation to matters that we may have to canvass with oral evidence, depending on what the objectors do, there are a number of matters however that we want to place before the Committee. The first matter is that there are three short videos which we

want to show, because that is the real evidence in respect of which there are two transcripts in bundle "B", and the first one that we want to show, the transcript appears on page 94 which we would ask you to follow. It is necessary in our submission to place the real evidence before the Committee, which is the video. It relates to a speech made by Mr Ndlovu, the organiser, the man that made the application. It shows the real purpose of this march out of his own mouth, Mr Chairman. We will ask you to turn to page 94 of bundle "B" and if you could look at the video, Mr Chairman.

CHAIRPERSON: Yes, when did you propose showing the video?

MR BIZOS: Now, Mr Chairman, with your leave.

JUDGE NGCOBO: Apart from the video you mentioned that there are certain - the other matter that you want to place on record.

MR BIZOS: Yes, and we have also prepared another bundle with photographs and statements which explain the ballistics evidence which our learned friend Mr Berger is going to present after we have shown these three videos, Mr Chair.

CHAIRPERSON: The purpose of the video is to show what Mr Ndlovu had to say of and concerning the purpose of the march.

MR BIZOS: ...(inaudible) Library Gardens before the shooting at Shell House.

MR BIZOS: That is the first ...(inaudible). May I ask the Committee to please turn to page 87 of bundle "B" which is another transcript. We ask - the purpose of this is the attitude of Mr Ndlovu ...(intervention)

JUDGE NGCOBO: This is now the second video, for the purposes of clarity is there a possibility that perhaps you can identify these videos, like video 1 or video a.

MR BIZOS: Yes, video 1 is Mr Ndlovu at Library Gardens. Video 2 is going to be an extract of a statement made by Mr Ndlovu at Vosloorus. We are going to ask the Committee to hear the news representor, because it is really Mr Ndlovu's response to the information gathered by the news representor and the purpose of showing this, Mr Chairman and members of the Committee is the attitude of Mr Ndlovu to the possession of firearms generally and AK47 in particular, and his view as to whether or not the Police have any right to seize firearms in the possession of hostel dwellers, Mr Chairman. We submit that the relevance of this is that information will be placed before you by Mr Berger as to how many fire inter alia - as to how many firearms were seized by the Police on that day from marchers, so that we will ask you to put these two bits together in order that you may or may not draw the influences to whether or not there were arms on the day in question.

CHAIRPERSON: What is the date of this video 2?

MR BIZOS: Mr Chairman I think that the date, it's in October '93, Mr Chairman.

CHAIRPERSON: Pardon?

MR BIZOS: I thought that it was January '94, but I hear sounds from my right that it was October, but can we - I am told that my recollection is correct, that it was January '94, Mr Chairman, but we will confirm the fact because I was speaking from memory and obviously prima facie there was ...(inaudible), but it was before the Shell House, the 28th of March. Could you please start showing video 2.

There's a very short scene which shows Mr von Eggedy, the person whose evidence we have handed in and which we contend was common cause, and whose statements have been handed in. It is a result of this video being shown before the inquest that his identity was established and we got the statements, belatedly, but - and you will see his condition and which may give you, we will submit, some idea of what it was like at that moment in front of Shell House.

MR DORFLING: Mr Chairman, may I perhaps just before we proceed with this video, with reference to the first two videos that were shown, I do not know what use Mr Bizos will put it to at the time of his argument, but I can foreshadow what he might like to argue in due course. I'm just concerned that nobody at present is representing the interests of Mr Humphrey Ndlovu. These videos might have a negative effect on him and I think he should be informed of this evidence and he should have the right to, in terms of the act as it's set out in act, have the right to respond to this evidence. Should he wish to place other evidence before the Committee, I would just think that that should be done and that Mr Humphrey Ndlovu, should he so wish, be granted the opportunity to respond.

CHAIRPERSON: You are speaking on his behalf?

MR DORFLING: I cannot speak on his behalf, I carry no mandate to speak on his behalf.

CHAIRPERSON: Well, the Committee will then decide that when the time comes, whether we think it necessary to call him or not.

MR LAX: Perhaps Ms Patel can tell us whether he's had a 19(4) or not.

MS PATEL: If I may just respond Honourable Chairperson, most interested parties have been sent notices timeously. In fact a specific notice has been sent to the offices of the Inkatha Freedom Party. If I may just inform my learned colleagues that prior to the hearing commencing several meetings were held between our offices and representatives of the IFP, and they are fully aware of these proceedings and what evidence may be or may have come to light here.

CHAIRPERSON: We will consider that in due course whether we want to hear ...(intervention)

MS KHAMPEPE: In particular, was a section 19(4) notice sent to Mr Humphrey Ndlovu?

MS PATEL: If I can just refer to my notes ...(intervention)

CHAIRPERSON: Yes, please do.

MS PATEL: I'll confirm that.

CHAIRPERSON: Can we see this in the meanwhile while you're busy.

MR BIZOS: May I just place on record what the Committee does not know, is that Mr Ndlovu was shown these videos during the inquest, he knows about them and I'm merely placing that on record, we don't want to take any part as to whether he has a right. He was represented by counsel at the inquest, and I'm reminded that the transcript that we have produced because we didn't want any arguments about translation, that there was an agreed translation which was agreed with his counsel, and these are the agreed transcripts. So he's not a stranger to this, nor will he be surprised by their contents.

Mr Chairman, unfortunately this short clip from the video had no sound, no fault of ours, this is how it came to us and we ask the Committee to see video 3 of Mr von Eggedy in front of Shell House near or at the corner of King George and De Villiers Streets.

We could not definitely identify, but it was probably a foreign news gathering crew that must have come there after the event, Mr Chairman. Those are the three videos that we wanted to show. I would ask the Committee to receive a document from us, copies of which are available, and my learned friend, Mr Burger will identify the document and couple them with the ballistics evidence that has been placed before you. We realise that it is of a technical nature and it is really explained in the documents so that the - which we ask you to receive as information and we really want to ellucinate the matter. Mr Berger will carry on.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you Chairperson. Chairperson, we've put the documents into a new bundle which we've called bundle "D" and we've numbered it through from page 1 through to page 53.

What the bundle seeks to do is to put the ballistics evidence which was led at the inquest, and which is not disputed by any of the parties, before the Committee so that the evidence which has been led and further evidence which may be led can be seen in its context. The memorandum itself, Chairperson, is very short, it runs for the first six pages. In going through the memorandum I will refer the Committee to the various annexures and I will just highlight the various parts of those annexures to help the Committee read through the memorandum. I'm not going to go through each annexure in detail.

What we say in the memorandum is that the ballistics evidence essentially falls into two categories. The first category concerns the observations of the experts at Shell House and Lancet Hall and the conclusions drawn from those observations. The second part concerns the exhibits which were picked up, seized by the Police immediately after the shooting at Shell House, which were analyzed by Superintendent Du Plessis, and as a result of his analysis certain conclusions can be drawn.

I deal firstly with the observations at Shell House. Superintendent Du Plessis conducted an investigation at Shell House on the day after the incident, the 29th of March. His report is contained in a document called Exhibit "Y2", and that's already been shown to the Committee, you will recall photographs of King George Street and the Woburn Pharmacy and the Cobbler's shop and all of that, that is the Exhibit "Y2" that ...(intervention)

CHAIRPERSON: ...(inaudible)

MR BERGER: No, no, it wasn't a video Chairperson, it was the - it were those photographs that were shown to a witness. In fact I handed my file up to Justice Ngcobo during that examination. Now that is Exhibit "Y2". It's also referred to in some detail in the joint ballistic report which I will come to in a moment. That joint ballistic report was commissioned by the ANC, the IFP, the families of the deceased and the injured, as well as the SAP. It was a joint report, and that report appears in bundle "B" at pages 159 - 188. What has been left out of that - of the bundle are the photographs which are attached to that report. They're available if any member of the Committee wants to see those photographs.

We say that the gist of the joint report is summarised in the seven sketch plans which are annexed to the report. The seven sketch plans that I'm referring to appear at pages 182 - 188 of bundle "B", and what we say, Chairperson, is that these sketch plans together with the report indicate certain basic propositions. The first proposition is set out in paragraph 4.1 of the memorandum, that is that shots were fired both in the direction of Shell House and in the direction of the marchers. Now one can see that from the various sketch plans, if I could just take the Committee to the sketch plans. I'm starting at page 182 of bundle "B". What sketch plan no 1 shows, it's a reconstruction of the investigation by Superintendent Du Plessis on the day after the incident, the 29th of March 1994. The shots into Jabu's Bakery are reflected - the ten shots are reflected there, the shots into Shell House are shown as SW6, SW4, SW3. The shots under the parapet of Shell House, SW1, SW2 is the ricochet, which he didn't know about at the time, but which subsequently became apparent after the joint investigation, and the boxes a, b, c and d represent the following, a represents a car which was parked in King George Street on the day of the shooting and into which shots were fired; b is another vehicle which was there on the day of the shooting and into which shots were fired; c is a concrete block which was positioned in King George Street; and d is were the Woburn Pharmacy used to be, you will recall, Chairperson, that the Woburn Pharmacy at the time of the shooting was at the corner and has subsequently moved to being the third shop in King George Street. The reason that these four areas are shaded in is to show that they couldn't be confirmed by the other experts, because they no longer existed at the time of the joint investigation, but they are not disputed by anybody.

Sketch plan no 2 over the page at 183 indicates shots that were fired from Shell House towards Jabu's Bakery from De Villiers Street, you will see there are two shots fired towards Jabu's Bakery, in particular I'm referring to shot marked no 4 and the shot marked no 5, you will see they come from that blue area, and that blue area in the key is described as the area from where there was firing, "area van waar gevuur is". It also indicates shots being fired from that area into the north-western corner of Shell House. Other shots are also indicated there, and the difference between the blue lines and the red lines, is the blue lines represent handguns and the red lines represent high calibre rifles such as an AK47.

Sketch plan 3 at page 184 ...(intervention)

MR LAX: Before you move on, Mr Berger, there's M1 and M2 on that diagram, just tell us about that.

MR BERGER: M1 and M2 are shots fired into Nandos and Whisky Music, but the direction of the shots were coming from - along Plein Street from a - east to west, so those shots are not part of - whenever those shots were, they definitely did not take place at the time of the main incident.

MR LAX: Just the other one is SS3412.

MR BERGER: Similarly, they're not relevant to the main incident.

MR DORFLING: Mr Chair, with the greatest respect, I would like my learned friend to just explain why he excludes these shots as having been fired on the day of the incident.

MR BERGER: We don't exclude them as having been fired on the day of the shootings, there's no basis for excluding them, but Mr Dorfling can make what he wants of those particular shots, there's no evidence that we're aware of.

MR DORFLING: It would simply be an incorrect statement to say they're not relevant to what happened on that day, we don't know. I think it's no more than neutral, we don't know whether they have significance or whether they pertain to the events on that day or not.

MR BERGER: Yes, we're happy with that, we have no problem. If I can then move to sketch plan no 3 on page 184, now, this sketch plan indicates shots fired at with a high calibre rifle, probably an AK47, from Shell House, P1 - P9 in the direction of the upper floors of Jabu's Bakery, so that's in a north-westerly direction, and B1 - B6 in the direction of the upper floors of the flats over the road from Shell House between - in King George Street between De Villiers Street and Plein Street. They're all high calibre shots, except for B3, you will see there's some doubt in the minds of the experts as to whether B3 was a handgun or a high calibre shot, and that's why it's shaded in both red and blue. You'll see in the key that dotted red and blue line is "a geweer/handwapen", either. Now, what's also interesting from sketch plan 3 is that there are two areas blocked off, the one is blocked off in a dark dotted line, a longer dotted line, and that is P1 - P9 in the key, it's the "vuurarea balkon", the firing area from the balcony, and the dotted lines at the bottom, the - from P1 - P9, no, it's also to P9, but smaller dots if I can put it that way, also black dots is the "vuurarea straatvlak", the firing area from the street. And you will also see that the red lines which go into the parapet become dotted at the bottom and continue towards the street, and that is because the experts were not able to state categorically that those shots were fired from the balcony or fired from street level, what they did was, they worked out the approximate trajectory of the shot wherever they found it on the building, tracked it back, but they couldn't state categorically whether it came from the parapet or whether it came from street level. And that's why you will see the dotted lines.

If I could then move to sketch plan no 4 at page 185. This brings me back to paragraph 4.2 of the memorandum, where we say that the shots which were fired in the direction of Shell House included shots fired from AK47s, handguns and at least one shotgun. Again I assume Mr Dorfling will be in agreement with me, if I can leave out SO3, SO2, SO1, SN1 and SN2 for the purposes of the present discussion. Well, perhaps SN1 and SN2 might not be left out, they might have some relevance because we know that the crowd was in that vicinity. And then there was also evidence from an SA at the time, and SADF soldier who fired a shot with a R5 rifle at the marchers, and his testimony was that he fired a shot because he was shot at, and he fired the shot in vicinity - he was in De Villiers Street, he was shot as in De Villiers Street, and it's possible that those shots might link up, except he said that he was shot at with an AK47, and these shots are shots are depicted as being from a handgun.

MR DORFLING: Mr Chairman, may I just revert to paragraph 4.2 of my learned friend's submission, the submission that is made here is,

"The shots which were fired in the direction of Shell House included shots fired from AK47s, handguns and at least one shotgun."

Now, as I see sketch 1, reference is made to four bullets that hit Shell House that might have emanated from the crowd, SW3, 4, 5 and 6, if Mr Berger is in agreement with me that that is the position, then paragraph 4.2 on the ballistics report as far as SW3 and SW 5 is concerned, the experts were of the opinion that that might have been emanating from a handgun, SW6 from a military type of weapon possibly, and 5.56 which was an R4/R5 calibre, and SW4, probably an AK47. I find on that bullet marks against Shell House no evidence of any shotguns. I also do not find any evidence of AK47s, in other words in the plural. There's one AK47 and no mention of shotguns, unless he's referring to some other bullet - shots that hit Shell House.

MR BERGER: Thank you, Chairperson, let me put it into perspective. My learned friend, Mr Dorfling, is quite correct when he looks at sketch plan 2 that the shots which actually hit Shell House were - no, no, sketch plan 2, Chairperson, at page 183, that's the one that Mr Dorfling was referring to.

MR DORFLING: Sorry I said 1, but I was looking at 2, it's indeed sketch plan 2.

MR BERGER: Mr Dorfling is quite correct that what sketch plan 2 shows are four shots which actually hit Shell House, two from handguns, those being the two blue lines, one from an AK47 and then one from a "handwapen of 'n geweer", but that's not what paragraph 4.2 says. 4.2 says that shots were fired in the direction of Shell House included AK47s, handguns and at least one shotgun. Now where one gets that from is one has to look at sketch plan 2 together with sketch plan 4. If one looks at sketch plan 4 on page 185, one will see the following, if one looks at the yellow arrow marked "BN3", do you have that Chairperson?

CHAIRPERSON: Yes.

MR BERGER: Now "BN3" is a shotgun, you will see in the key that the yellow is "haelgeweer" and those shots were fired as we say in the memorandum, in the direction of Shell House. They never hit Shell House because they got caught underneath the balcony in De Villiers Street, and that is depicted there by that yellow line. Do you see that Chairperson? That is the shotgun that is being referred to in paragraph 4.2 of the memorandum. As far as the AK47s in the plural is concerned, the first AK47 that I'm referring to is to be seen in sketch plan 2, in particular the shot marked "SW4", and the other AK47 that I'm referring to is to be seen in sketch plan 4 at page 185. Chairperson you will see in King George Street, what the sketch plans move - the orientation changes, and here what we see in sketch plan 4 is King George Street between De Villiers and on the right-hand side would be "Noord" and right up in the corner there near the corner of King George and De Villiers there are two shots marked 17 and 18, do you have that Chairperson?

CHAIRPERSON: Yes.

MR BERGER: And those two shots are fired from an AK47 and the direction as was testified to by Superintendent Du Plessis when he gave his evidence was in the direction of the Shell House. It never hit Shell House, but was in the direction of Shell House.

MR DORFLING: Can I just perhaps respond as far as the shotgun shots are concerned. These shots could not be linked to the events of the day if I understand the evidence correctly and at this point in time as far as the other AK47 shot or shots is concerned, 17 and 18, they hit the actual balcony underneath the building where Jabu's Bakery is situated, they did not hit Shell House. If they were fired - if my learned friend tries to convey that they were fired generally towards where Shell House was situated, it goes no higher than that, and at this point in time I'm not sure whether they are indeed linked to the events of the day in any event. I think those were also two new shots, I'm not exactly sure about those two, but at least the shotgun shots cannot particularly be linked to the events of the day.

CHAIRPERSON: As I understand, Mr Berger, what he's saying in regard to shots 17 and 18 is simply that they were fired in the general direction of, but they did not reach Shell House.

MR DORFLING: That's the way I understood it, what ...(intervention)

JUDGE NGCOBO: ...(inaudible)

MR DORFLING: Yes, yes, I think the point I'm trying to convey, Mr Justice Ngcobo is whether these shots could be linked to the events of the day. There are a number of shots recorded that was only recorded after the day and which can't in particular be linked to the events of the day, it might have happened beforehand, it might have happened after the event, and I think that's the - paragraph 4.2 seemed to give out that this might relate to the day of the 28th of March '94, and it isn't necessarily correct.

MR BERGER: Chairperson, thank you. Perhaps I need to take a step backwards. When Superintendent Du Plessis conducted his investigation on the 29th of March 1994 he testified that he was unable to conduct a very extensive investigation. He only investigated the area in King George Street roundabout the Woburn Pharmacy and the area in De Villiers Street as depicted on sketch plan 1, underneath Jabu's Bakery. In fact if one looks at sketch plan 1, one sees represented diagrammatically the extent of Superintendent Du Plessis's investigation, and he conceded that his investigation went no further than that. When there was the joint investigation as is shown in sketch plans 2, 3 and 4, the experts were far more extensive and found many more bullet holes in the vicinity. They went down De Villiers Street, they went further, they went higher, they went all around Shell House, they went further north in De Villiers Street and they found a whole lot of holes. There were certain holes which they found which were not depicted on photographs which Superintendent Du Plessis took at the time, and those particular bullet holes, they were able to exclude as having appeared on the day of the incident, but those bullet holes are not the bullet holes that I'm referring to now, there were two or three of those if I remember correctly.

...(inaudible)

MR BERGER: Yes, they were the shots from King George Street, handgun shots, into Jabu's Bakery, in the region of shots - I'm looking not at sketch plan 4, shots 11, 12 and 13 in that area.

JUDGE NGCOBO: Were these shots excluded simply because they did not appear in the photographs taken by Du Plessis?

MR BERGER: That is so, yes.

JUDGE NGCOBO: Was there a suggestion that perhaps they may have been - they may have occurred perhaps after the photographer?

MR BERGER: That is correct, yes.

MR DORFLING: Yes, Mr Chair, if I may at this point in time, if one moves on to paragraph 4.3 what is said there is,

"The shots which were fired in the direction of the marchers included shots fired from AK47 and handguns."

As far as the AK47 shots are concerned, the only possible shot that was recorded as having been emanating from the marchers on the day, which Superintendent Du Plessis found on the 29th of March, or the only three shots are shots numbers "SW3", "SW4" and "SW6", those were the only three shots that was found by Superintendent Du Plessis on the 29th of March, of which one can therefor be certain in all probability emanated from the crowd of marchers. If one has regard to the actual report "SW3" is possibly a shot from a handgun, "SW6" possibly from a military type kind of weapon and "SW4" a large calibre firearm and the probability of an AK47 could not be excluded.

MR BERGER: Mr Dorfling, with respect, you seem to have misread 4.3, it refers to shots at the marchers.

MR DORFLING: Indeed I did misread it, but it actually goes back to the previous point I made with the plural of AK47s, there's only one recorded shot that can be linked to the day with reference to AK473.

MR BERGER: Chairperson, if my learned friend will just allow me to develop the memorandum and he can talk to it afterwards.

CHAIRPERSON: ...(inaudible)

MR BERGER: Thank you, Chairperson. Chairperson, what I was saying was, Superintendent Du Plessis as is shown in sketch plan no 1 had a very limited investigation. When the experts went back subsequently they found many more holes and they were able to reconstruct a far more detailed scene. But for the bullet holes which I've referred to which were positively excluded on the basis that they didn't appear in the photographs taken by Superintendent Du Plessis on the day, none of the other shots could be excluded. So, for example, to take Mr Dorfling's suggestion that the shotgun pellets which I've shown - which I've referred to as "BN3" on sketch plan 4, to say that there is no proof that those shots were fired on the day, well, one might equally say if one turns to sketch plan 3 that the AK47 shots "P1" - "P9", as well as "B1" - "B6", that those too were not fired on the day. You see, one can say that as well, because they were not seen or noted by Superintendent Du Plessis when he did his investigation on the 29th of March 1994.

JUDGE NGCOBO: Are you saying that the appearance of the bullet marks on the photograph taken by Du Plessis was not necessarily determinative of when those shots were fired? There were those which were not in the photograph, but were never the less linked to the shooting.

CHAIRPERSON: The limited number of findings that were made by Du Plessis as shown in sketch plan 1 seemed to have been fired at the time of the occurrence, but a number of shots that were subsequently presented in the joint report, there's a possibility that some of those may not have been related to the shooting of that day. Is that what you're really saying?

MR BERGER: That is correct, Chairperson.

CHAIRPERSON: There's a probability that they were - I can't imagine people going around scattering bullet marks in that area, you know, as an exercise of some kind.

MR BERGER: The probability is that all the shots that the experts discovered in their joint investigation, the probability is that those were fired ...(intervention)

CHAIRPERSON: Yes.

MR BERGER: ... on the day of the incident. The only ones which can be excluded are those shots which don't appear in the photographs taken by Du Plessis on the day, but the point is that du Plessis didn't take photographs of the entire area, he only took photographs of the area around the corner of Jabu's Bakery and the other parts that are shown in sketch plan 1, for example, Du Plessis did not take photographs of the flats that are shown in sketch plan 3, "P1" - "P9" and "B1" - "B6", he didn't take photographs. Now, subsequently when the experts found bullet holes there, they couldn't say that those bullet holes weren't there on the day of the shooting because they were no photographs to say yey or nay. Everyone accepts on the probability that "P1" - "P9" and "B1" - "B6" were shot on the day of the shooting, we have no reason to say otherwise. Similarly the shotgun pellets fired in "BN3", there's not reason to say that those weren't fired on the day of the shooting.

JUDGE NGCOBO: I suppose the reason why I appear to be somewhat confused is that I have thought that what happened was that Du Plessis took photographs of the bullet marks, and that subsequent to that there was this joint exercise by the experts which was much more extensive that they one carried out earlier on by Du Plessis which discovered more marks than had been - than is depicted in the photographs. Is the basis for excluding the other marks simply that they didn't appear in the photograph?

MR BERGER: Yes, that's correct.

CHAIRPERSON: ...(inaudible)

MR BERGER: No, there's no other basis.

CHAIRPERSON: You definitely talk about it ...(inaudible)

MR BERGER: Yes, that's correct.

CHAIRPERSON: ...(inaudible), that's no reason for excluding them, just because there were no photographs taken of those.

MR BERGER: No, Chairperson, things are getting a bit confusing now. Superintendent - his photographs are available in exhibit "Y2", and perhaps it would be a good idea to put - to show those to the Committee. He took photographs of certain areas, in particular he photographed if one looks at sketch plan no 1, he photographed "D", that area marked "D", he photographed "A", he photographed "B" and he photographed "SW1, 2, 3, 4 and 6", that's what he photographed. He never photographed looking at sketch plan 3, he never photographed "P1" - "P9" or "B1" - "B6", he never photographed those flats at all, he never photographed "BN3" on sketch plan 4 or if one looks a bit further on sketch plan 4, he never photographed 16, 17, 18, he never photographed "SN1", "SN2" or anything on the eastern side of Shell House. Now, because he'd photographed the area very close to the corner of De Villiers and King George where Jabu's Bakery is situated, he could say that for example, I'm not sure that this is the right bullet hole, but I'm just using it as an example, that bullet hole no 12 which we now see on the corner, he can say, but look at my photograph of that particular spot and you can see that that bullet hole is not there. And on that basis he says bullet hole no 12, for example, was not there on the day of the incident.

CHAIRPERSON: Yes.

MR BERGER: So there's no basis on which one can say that the shotgun pellets which I've indicated - which are indicated on "BN3", there no basis for saying, and this was agreed, that those did not - were not fired on the day of the incident, and the probabilities are that they were fired on the day of the incident because of the evidence which you've already heard.

CHAIRPERSON: Yes.

MR BERGER: As far as the AK47 shots on sketch plan 4 are concerned, 17 and 18, the evidence was that those could have been the tail-end of a burst of AK47 fire and Du Plessis said, well, you know, in fact then they might have hit one of the marchers, the other shots which are not appearing there, and that's the point, that they were fired in the direction of Shell House, that is the direction and the possibility is that the other shots which are not seen because they didn't hit any particular building might have landed up in the backs of one or other of the marchers. Even the ricochets which are indicated on 17 and 18, one can see the ricochet being indicated there.

MR LAX: Mr Berger, is the assumption that those shots may have been fired by other marchers?

MR BERGER: Yes, that is it. And so what we say the reports indicate is that there was general firing in both directions, both from Shell House towards the marchers and both from the marchers in the direction of Shell House, some of them even hitting Shell House, and those have been indicated.

MR LAX: I want to ask you one other thing, you say that Du Plessis conceded the possibility that those were the tail-end of a salvo of shots, is that based on the specific dynamics of how an AK47 tends to go up when you're firing on automatic, is that right?

MR BERGER: That is correct, yes. And that's why one says that the shots towards the marchers were handguns and AK47s and we know, although that's not depicted on the sketch plans, we know shotguns as well because we know that the people on the parapet fired shots, and from the other side the shots fired towards Shell House included handguns, at least one shotgun and AK47s in the plural, the one AK47 at least being fired from the direction of De Villiers Street toward Shell House and the other AK47 being fired from the direction of King George Street near Noord toward Shell House.

MR LAX: Just to clarify, is Noord roughly the street one can see on the right of the plan, on sketch plan 4?

MR BERGER: Yes.

MR LAX: Thanks.

MR BERGER: Noord runs parallel to De Villiers and intersects with King George on the right-hand side of the sketch plan. At page 174 of the report, this is 174 of bundle "B", it's typed page 14 of the report, under the heading "Trefpunt BN3", you will recall that that relates to the shotgun marks on sketch plan 4. The following is said, it's photo 21, it says there - I beg your pardon photos 22, 23 and 24. The report says,

"Die beskadigingsmerke is veroorsaak deur agt haelkorrels wat die onderkant van die balkon aan die noorde kant van Baronie getref het. Die skoot is skuins opwaarts in 'n oostelike rigting soos op die sketsplan aangedui, gevuur. Die groote van die haelkorrels kan "SG" of "LG" wees."

Again no indication that these weren't fired on the day of the shooting. If the Committee would just turn to page 7 of bundle "D", you will see an annexure there, Annexure "A", which shows the different sizes of ammunition, shotgun ammunition. SSG was fired by the Shell House security guards on the day, and you will see that there are 16 shots per cartridge in an SSG cartridge. SG has got 10 pellets, and LG has got 7 pellets, do you see that Chairperson? Now the report indicates that there were 8 shotgun pellets on the underside - or shotgun marks on the underside of the balcony in De Villiers Street, and the experts said that those were either SG or LG pellets. And we make the point in paragraph 4.2 that if they were LG pellets, then at least two shots must have been fired. If they were SG pellets, then two of the pellets didn't strike the building and landed up somewhere else.

If I could then move to 4.3. 4.3 deals with shots fired in the direction of the marchers, not in the direction of Shell House and we say there that those shots include shots fired from AK47s and handguns. We know that the Shell House security guards fired two AK47s, the one was fired by Mr Molefe, the other one was fired by Mr Khumalo. According to Superintendent Du Plessis, at least one of the shots fired from an AK47 could have been fired up King George Street from a position above Nandos. Now, I don't know if the Committee is aware of where Nandos is, we will hand in a photograph, perhaps I should hand it in now. These are colour copies of the photographs, they're quite expensive and our attorneys couldn't make more copies, we have five copies, can I hand them up to the Committee. Chairperson, this will have to be given an Exhibit number in due course, but this photograph was taken in King George Street, looking south in King George Street between Plein Street and De Villiers Street looking south, and we're looking at the northern most point of Small Street Mall. Just to the right of Nandos is the entrance to the Small Street Mall. What Superintendent Du Plessis said was that the shot - a shot could have been fired from one of the flats above Nandos - I'm sorry, Nandos is shown, I don't know Chairperson if you can see Nandos, that red canopy has the name Nandos written across.

MR LAX: Is that the same point that appears on sketch plan 2 on page 183, it's marked Nandos and next to it is Whisky Music?

MR BERGER: Yes, that's the point.

MR LAX: So that's - that way and that's looking towards that point down King George Street?

MR BERGER: This photograph is taken approximately where on sketch plan 2 the figure C appears. The reference - all the references to Superintendent Du Plessis's evidence that are made in this memorandum have been copied and Chairperson, you will find the evidence of Superintendent Du Plessis starting at page 31 of the memorandum. What we've done is, we've copied all the relevant pages. At page 33 of the bundle Superintendent Du Plessis was being questioned by his counsel and in the middle of the page line 14 the following is recorded,

"Foto 9 van u album Y2 is weer een van die onbevestigde gevalle?"

"Dit is korrek Edele."

"Kan u sê wat u daar uitbeeld op foto 9, wat die doel daarvan was."

"U Edele, dit is 'n gat in 'n soliede sementblok."

What he was referring to there was point C on sketch plan 2, that is a cement block in the middle of the road and there was hole caused by a shot fired into that cement block. A photograph of that appears as photograph no 9 in Superintendent Du Plessis's Exhibit "Y2". And then over the page at page 34, line 3, Du Plessis is asked,

"Het u na die ander kant van daardie sementblok gekyk om te sien of u merke van daardie kant of gekry het?"

and the answer,

"Daar was geen merke gewees nie. U Edele, in een van my verslae as ek dit net miskien kan byvoeg, het ek hierdie skoot ook nie uitgesluit dat dit kon gevuur gewees het uit die suidelike woonstel gedeeltes van Nandos, want ek is pertinent daaroor gevra omdat daar bewering was dat mense geskiet het vanuit daardie gebou. Bokant Nandos, daardie woonstelblok en hierdie blok is reguit in lyn en hierdie skoot kon daarvandaan ook gevuur gewees het, maar hy kon nog - die aanslagrigting is nog in 'n suidelike rigting."

He's actually meaning a northern - it's a northerly direction from the south to the north.

That is important, Chairperson, that piece of evidence from Superintendent Du Plessis, that it is quite possible that an AK47 - he identifies this as an AK47 shot, that an AK47 shot could have been fired from that position above Nandos, down into King George Street and the shot that he knows of is the one that hit the cement block. In other words, that somebody was shooting an AK47 from King George Street in that direction - from above Nandos in that direction.

JUDGE NGCOBO: I seem to see two blocks of flats on either side of Nandos. Is there - are there flats above Nandos?

MR BERGER: Judge Ngcobo, the evidence didn't go further that the evidence which I have just read out to you as far as Nandos is concerned. It would appear as though he's referring to the flats just to the, as we're looking at it, just to the right of Nandos.

So those are the AK47s that are referred to in our paragraph 4.3 of the memorandum.

CHAIRPERSON: ...(inaudible)

MR BERGER: That's correct, yes.

CHAIRPERSON: Not the glass enclosed portion that is immediately above the red canopy?

MR BERGER: No, it doesn't appear to be, but it could equally be the flats to the left of that, he wasn't specific. All he said was that above Nandos there is that block of flats, and this cement block, he's saying, is directly in line he says with that block of flats, and this shot could also have been fired from there, he says.

CHAIRPERSON: Yes, thank you.

MR BERGER: So the shots which were fired in the direction of the marchers with an AK47 could be the two shotguns - the two AK47s fired, one by Mr Khumalo, one by Mr Molefe. The AK47 above Nandos, if I could describe it as such, as well as the AK47 which we see on sketch plan 4, shots 17 and 18, also fired - that was fired both in the direction of the marchers and in the direction of Shell House, the marchers being between the shooter and Shell House.

4.4, the numerous shots fired from Shell House with AK47s were fired into the air and well over the heads of the marchers, that is indicated on ...(intervention)

JUDGE NGCOBO: Mr Berger, shall we give this document a number of some kind so that we can ...(intervention)

CHAIRPERSON: It's called "D", oh the photograph?

JUDGE NGCOBO: The photograph, shall we give this a number of some sort.

MR LAX: Can we make it page 272 of bundle "B" ...(inaudible) keep it ...(inaudible)

MR BERGER: Not bundle "D" because it ...(intervention)

...(inaudible)

CHAIRPERSON: Thank you.

MR BERGER: Thank you, Chairperson. The shots that were fired into the air and over the heads of the marchers are the shots that are depicted on sketch plan 3, accepting of course that those shots were fired on that day. And then we make the point in 4.5 that certain of the shots which were fired in the direction of Shell House did not reach Shell House and might well have struck one or more of the marchers instead, we've dealt with that already.

As far as the remaining sketch plans are concerned, sketch plan 5 really deals with visibility, those are not shots - gunshots which are depicted there, it's from a certain position on street level, one can see a certain floor or floors of Shell House, those are definitely not gunshots depicted on sketch plan 5. And then sketch plan 6 and 7 show the relevant measurements.

The only point of the joint report which requires further comment, Chairperson, is the paragraph headed, "Trefpunte SW1", which appears in bundle "B" at page 169, I'm dealing with paragraph 5 of our memorandum. In summary, what the report says is that those shots which were fired into the underside of the balcony at the corner of King George and Plein Street, there are 12 holes and all 12 holes are AK47, that is indicated by all those red lines moving up as well as the red line - the thick red line. Now I've annexed at page 35 of the memorandum the relevant part of Superintendent Du Plessis's evidence where he was asked about those 12 holes and where he was questioned on 2 of the 12, if I could just stand back for a minute, 10 of the 12 were associated together, and then there were 2 which were further south, in fact on the other side of a advertising board, and he was asked whether those two that were further south were compatible with 9mm shots and not AK47 shots. And he says at line 20, or he's asked at line 20, page 35,

"Again let me just put it to you shortly, you have already said that you cannot exclude that might be a handgun, those two holes are completely compatible with a handgun, a 9mm?"

and his answer is,

"I can exclude it - ek kan dit nie uitsluit nie Edele."

And then he's asked further,

"Would you - perhaps could you just go a little bit further, it is completely compatible."

and is answer,

"Ja, dit is heeltemaal versoenbaar met 'n 9mm wapen of enige ander groot kaliber handwapen."

That evidence and that concession by Superintendent Du Plessis is very important, Chairperson, you would already have heard the evidence that when the guards fired warning shots, Mr Veejay Ramie, now deceased, fired two warning shots with a 9mm handgun directly upwards into the balcony, and originally the report didn't provide any support for that because it was 12 AK47 shots, but read with the evidence of Du Plessis, the concession was made that those first two shots are completely compatible with a 9mm handgun.

If I could then turn to page 3 of the memorandum, dealing with the observations at Lancet Hall. Again there was a joint report commissioned. The joint report was preceded by a report by Mr Lubbe who was appointed to act on behalf of the ANC. Mr Lubbe's report was subsequently agreed to and included in the joint report. The joint report appears at pages 189 - 196 of bundle "B" and particularly paragraphs 2.1 and 2.2 at pages 191 and 192 are of importance. I won't read them, I will just summarise what they say, and it's particularly relevant in the light of the evidence which the Committee has just heard from Mr Simelane, and that is, the experts agreed, no 1, that the deceased was struck and killed by a bullet fired from a high calibre rifle, Mr Chonco the deceased represented by Mr van Wyk this morning, he was struck and killed by a bullet fired from a high calibre rifle, they said it was either R1, R5 or AK47. 7.2,

"The deceased was not struck", it was positively excluded, "not struck by a shotgun pellet",

and 3,

"The damage to the inner side of the garage gate was caused by a shot fired from a shotgun."

What happened was, that Mr Lubbe went to the gate and inspected it, and he found damage on the inside of the gate which was consistent with shots fired from a shotgun. That then concludes the observations and the joint report. What then happened was - well what in fact in time happened a lot earlier, was that certain exhibits were recovered from Shell House and recovered from the bodies of the deceased. Those exhibits were analyzed by Superintendent Du Plessis. The exhibits recovered by the Police at Shell House are listed in Superintendent Du Plessis's affidavit which was apposed to him in June 1994, that is copied for the Committee at page 8 of the memorandum and marked "B", the Andries Hendrik du Plessis is the Superintendent du Plessis who gave evidence at the inquest.

MR LAX: Sorry, Mr Berger, I don't appear to have a page 8 in this bundle I've been given. Page 1 is clearly missing,

CHAIRPERSON: Yes.

MR LAX: But anyway, we can sort that out later, I'm sure.

MR BERGER: I'm sorry, I appear to be the only one who has a page 8. It's the first page of - do you have page 9?

CHAIRPERSON: Yes.

MR BERGER: And page 9 is the second page of Du Plessis's affidavit. We will have page 8 copied and inserted. It's a pity that you don't have page 8 because at the bottom of page 8, paragraph 3.1, he records, "Een 7,65mm kaliber Zastawa selflaai pistool" with a magazine. That was a gun that was retrieved by the Police from amongst the - when the marchers fled they dropped a lot of weapons, it's shown on photographs and there's a photograph which we will hand in, but amongst those weapons and amongst the people who fell, this "selflaai pistool" was recovered by the Police on that day. Also at the top of page 9, fortunately you have it at this time, 3.3 "Een .38 kaliber tuisvervaardigde vuurwapen", that home-made gun was also seized by the Police from amongst the injured marchers at the scene on the day. All the other exhibits which are marked 3.4 - 3.14.4 were also seized by the Police at the scene on the day immediately after the incident. Further exhibits were recovered by the Police, and they are recorded by Superintendent Du Plessis in annexure C which starts at page 12. Now if I can just be clear on what those all are, hopefully you have page 12, Chairperson. 3.1 through to 3.10 are bullets and ammunition, if I can call it that, recovered from bodies of deceased persons. You will see next to each description of the ammunition, there's a "pm" number, that's a post-mortem number. The first 8 post-mortem numbers referred to people who died at Shell House, the other post-mortem numbers refer to people who died at Library Gardens.

MR LAX: I notice 352 doesn't have a number next to it, is that the same as 351?

MR BERGER: Yes, if you go according to 351, yes. In addition to the ...(intervention)

CHAIRPERSON: Just from the bodies of those that were killed, or from those that were wounded as well?

MR BERGER: Only deceased.

CHAIRPERSON: Only the deceased.

MR BERGER: Chairperson, yes. And those persons who were shot at Library Gardens were shot by members of the Police, except for the Policeman who died at Library Gardens who was shot by one of the marchers and there was an office worker, Mr van der Walt in one of the - in the Volkskas Bank who looked out of his window and got shot and one of the - we don't know, he was shot with a .38 if my memory serves me correctly, but that's particularly relevant for the purposes of this application. What is relevant are paragraphs 3.11 and 3.12, those were further exhibits recovered by Superintendent du Plessis the following day, the 29th of March. He got some out of a robot pole, you'll see there on the norther corner, and in 3.12 he got five fragments of bullets which he picked up from 48 Hours Take-away which was on the eastern side of King George Street, King Cobbler, you will recall the King Cobbler, referred to I think by Mr Singeram when he gave his evidence, that's on the western side of King George Street and Bellana Shoes, that's the ricochet shop, that's also on the eastern side of King George Street. All of these shops are between - in King George Street between Plein Street and De Villiers. We can continue for a few more minutes, but ...(intervention)

CHAIRPERSON: ...(inaudible)

MR BERGER: No, Chairperson, my watch stopped at 09h20 on the 11th of May. Chairperson, page 4, paragraph 10 of the memorandum, we've just - we've included annexure "D" which is a letter, it starts at page 15, it's pages 15 and 16 of the bundle, 17 was taken from the docket, it's a handwritten note. This is a letter which was sent from the Investigating Officer to the Commanding Officer of the Ballistics Section of the SAP. Over time certain firearms were handed in by the ANC to the Police for ballistics testing, these were one of the first batches of guns that were handed in, and the reason that this is annexed is simply to show the two AK47s used on the day, they appear at page 16, paragraphs 3.1 and 3.2, "AK47 aanvalsgewere X2", those were the two AK47s that were used, one by Mr Molefe, one by Mr Khumalo.

Now, paragraph 11 deals with the result of Superintendent Du Plessis's ballistic tests on exhibits, and I'm talking here about exhibits recovered at the scene on the day, the following day and exhibits recovered from the bodies. What his analysis established was that a significant number of firearms were discharged at the time of the shooting.

Chairperson, all the reference to Du Plessis's evidence are set out in footnotes, from footnote no 5 through to footnote no 15 and all of that evidence has been copied for the Committee and has been annexed as part of annexure "H". I'm not going to go through that evidence, it was a cross-examination which I did of Superintendent Du Plessis where - and what I did was I took him through his two affidavits, the annexures B and C to this memorandum, told him that I had done a certain analysis of those affidavits, and asked him to confirm it. He corrected me where I was wrong, and the result of that cross-examination, that analysis are set out in paragraph 11.1.

What it shows, Chairperson, 11.1 is that at least five and possibly six, maybe even more, AK47s were fired at the time of the main incident. How do we know that? Well, one of these AK47s was in fact later seized by the Police from a marcher at Library Gardens and positively linked to nine of the AK47 shells recovered at Shell House, the reference is there.

I asked how do we know this, you will see, Chairperson, if I could take you very briefly back to Superintendent Du Plessis's affidavit, page 9, page 9 of the bundle. You will see there, paragraph 3.4, "16 7.62 x 39 mm kaliber doppies", 7.62 x 39 mm are AK47. So there were 16 AK47 doppies and if you look at 3.14.1 on the same page, there was one 7.62 - one "AK47 gemantelde koëel", jacketed bullet which was found on the scene. Now, where do I get the five, possibly six, possibly more from? The 16 doppies were analyzed as follows, 9 of the doppies were linked to the AK47 which was retrieved approximately 1 hour later by the Police from one of the marchers at Library Gardens, 9 of the doppies were linked to that AK47. Six of the doppies were linked to the AK47 fired by Mr Molefe, handed in by the ANC before the 8th of July 1994 as per annexure "D", so 6 of the doppies were linked to one of those AK47s and we know that it was Mr Molefe's one because those doppies were picked up in De Villiers Street. There was uncertainty as to where all the other exhibits were picked up, in fact nobody knows were they were picked up, but as far as the 16 AK47 doppies are concerned, there was a video which shows that they were picked up in De Villiers Street near the intersection with King George.

So 9 Library Gardens AK, 6 Mr Molefe's AK and 1 left which couldn't possibly be linked to Mr Molefe's. Superintendent Du Plessis said that he thought that it came from Mr Molefe's, but there was an absence of certain marks, he couldn't positively say that and he couldn't positively exclude the possibility that it was fired from another AK47.

There was a bit of controversy in the evidence of Superintendent Du Plessis, and finally, it's actually not annexed here, I recall it now, but the following day he came back and it was clarified in his evidence that that last remaining doppie could have come from Mr Molefe's AK, it might not have and it could have come from another AK. And that's the reference to possibly more, but if one takes that one out of account or even if one attributes that to Mr Molefe's AK, we have from the 16 doppies we have 2 AKs.

Then we know that Mr Khumalo fired an AK, that's the third AK. Then we know that an AK was fired from above Nandos, that's the fourth AK, and then we know that one of the deceased was hit by an AK, the bullet was recovered, that's the fifth AK, analyzed by Superintendent Du Plessis and it wasn't linked either to Mr Khumalo nor to Mr Molefe. I don't know if that sound terribly confusing, but we know that it was fired from another AK47, it could have been the AK above Nandos.

MR LAX: But it wasn't the one that was found at Library Gardens?

MR BERGER: It wasn't that one either, no. It could have been the AK that was fired up - further north up King George Street, we don't know. Perhaps this would be an appropriate time to adjourn.

CHAIRPERSON: We will take the adjournment now and resume at 14h00.

HEARING ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes, we may proceed.

MR BERGER: Thank you, Chairperson. We've made copies of the missing page 8, might I hand it up, hand some copies to my learned friends, thank you. Chairperson, you will see that the one weapon that was found in the possession of the injured people, or amongst the people lying injured at Shell House is reflected there at paragraph 3.1 on the bottom of page 8, the self-loading pistol.

I was dealing just before lunch with paragraph 11, and in 11.1, just to summarise briefly, the AK47s that were fired at the time of the shooting, according to the analysis of Superintendent Du Plessis were the one fired by Mr Molefe which was linked to the 6 doppies, the one fired by a marcher which is linked to the 9 doppies, that's the one that was later recovered at Library Gardens, the one AK47, that's no 3, fired into the deceased, probably fired from above Nandos.

The fourth AK47 was the jacketed bullet found, the exhibit which wasn't linked to any of the others is no 4, and then of course Mr Eddie Khumalo's no 5, and then there's always the possibility of a sixth AK47 if one takes that last 16th doppie into account.

Besides AK47s that were fired at the time of the shooting, 11.2 and, the reference to the evidence is there, at least to Makorov pistols were fired, at least three revolvers were fired, possibly five revolvers were fired, at least five 9mm pistols were fired. 11.5, the R5 or R4 rifle, that's probably the one fired by the SADF person who shot at the marchers after he said the marchers shot at him with an AK47, one or more shotguns and then possibly many more firearms of different calibre and the evidence - it's dealt with in the evidence of Superintendent Du Plessis, the reference is there, footnote 13 and the page numbers are all annexed to the memorandum, but what he was referring to was that there were many bullet fragments as was set out in his affidavit which was recovered from the scene which couldn't be tested just because they weren't complete, there were I think about 20 bullet fragments of different calibre.

And then there were a whole lot of other jackets - doppies and bullets which were recovered, but which had not markings on, they couldn't be - he couldn't say one way or the other that it had come from the said gun or it did not come from the same gun, so there's that grey area.

Paragraph 12 then of the memorandum deals with other bullet fragments which had been found, and the significance that we say of the fact that fragments were found or bullets were found both on the eastern pavement and on the western pavement of Shell House is indicative of the fact that shots were being fired from all directions, and bullets were landing both on the eastern pavement and on the western pavement. One can't take it any further than that.

What is also interesting is paragraph 13, Chairperson, two of the exhibits which Superintendent Du Plessis tested, he positively linked to a Z88 9mm Parabellum pistol which was seized by the Police from one of the marchers later in the day, that's - and the reference is there as well. That's also referred to in his affidavit, the link. For the sake of completeness, there ...(intervention)

CHAIRPERSON: Go on, just refresh my memory, I might have missed this, were there any evidence about any bullets being fired by this firearm?

MR BERGER: A Z88 9mm Parabellum?

CHAIRPERSON: Yes.

MR BERGER: No, not ...(intervention)

CHAIRPERSON: No ballistic evidence?

MR BERGER: The only evidence is that certain doppies I think they were, if I could just find the reference, it's at page 7353 of the evidence of Du Plessis which starts at page 47 of this memorandum, line 2, I asked at the top there, I said, "Can I just have that document back please" - no, no, it is the summary with tables in it. Then I said,

"Superintendent, I have been given another copy, in paragraph 6.2 of your exhibit "Y7" you say the following"

and "Y7" for the Committee's purposes is annexure B if I'm not mistaken - yes, it's annexure B, annexure B is "Y7" and annexure C if there's any confusion was exhibit "Y1". I say there

"die oorblywende doppies en koëels in alle kalibers is negatief met al die wapens behalwe twee 9mm Parabellum gemantelde koëels wat as gevolg van die afwesigheid van merke en die beskadigde toestand en groefbreedte ooreenstem met een 9mm Parabellum wapen Z88, lab no 16094 of '94."

The question,

"Now according to the summary which was handed in, lab no 16094, refers to two guns which were received from marchers on the day - not received, taken from marchers on the day?"

answer,

"Dit is korrek Edele."

So, two of the exhibits which were found at the scene by Superintendent Du Plessis were linked to a 9mm Parabellum which was seized from marchers later on in the day, that very day, the 28th of March 1994. In fact, if you have a look at page 18 of this memorandum, there's an annexure E, this is a document which was handed in by counsel for the Police during the inquest, "vuurwapens vanaf optoggangers verkry", these were the guns that were seized from marchers at one point or at one time or another during the course of the 28th of March 1994. You'll see right at the top, "Zastawa 7.65 mm and 1 .38 tuisgemaak", those were the two guns that were found at Shell House that were retrieved at Shell House. And then if you have a look at ...(intervention)

...(inaudible)

MR BERGER: That's correct, yes, thank you. Second last, on page 18, Z88 which was seized from a P Kwanke in Main Road some time later in the day, so that particular person had obviously gone from Shell House and was wandering somewhere around Main Road when he was arrested by the Police. While we're on annexure E, annexure E details all the guns, the three pages, that were picked up by the Police.

...(inaudible)

MR BERGER: No, from the marchers only.

...(inaudible)

MR BERGER: Yes. The next annexure, annexure F which starts at page 21 is an affidavit by a Colonel Martinus Christoffel Marx, I'm not going to go through the whole affidavit because a lot of it is not relevant for the purposes of this application, but at page 21 he says that he'd been asked to collect certain statistics in relation to the march and the incidents which had occurred during the march. At page 22, at the top, paragraph 2, he says,

"Uit die statistiek blyk dit duidelik dat daar op 28 Maart '94 en voor die skietvoorval te Shell House verskeie voorvalle van geweld voorgekom het, veral te Soweto en Johannesburg."

And then he goes on to detail the incidents and for the purposes of this memorandum the important paragraph is paragraph 3 where he says,

"Arrestasies op 28 Maart tydens die optogte Johannesburg, 31 persone is tydens die optog gearresteer vir die besit van ongelisensieerde vuurwapens en ammunisie."

So these were marchers.

"'n Groot aantal vuurwapens is tydens die proses teruggevind"

and then I'm not going to read all of them, but you will see revolvers, shotguns and over the page, page 23, 9 AK47 guns seized and 123 rounds of AK47 ammunition, that's live ammunition seized, and then pistols, home-made revolvers and so on. I can tell you, Chairperson, that the rest of this affidavit deals with investigations into MK members who came into the country from Zimbabwe, whether or not they were armed, he says his information was that they were not armed, I don't want to go into that detail because it's not particularly relevant, but just so that I'm not - I don't just gloss over it so you don't know what's here, and he says he doesn't have any evidence that they were involved in anything at Shell House.

He then goes on to discuss certain conversations and meetings that he had with Caroline Nicholls and me on behalf of the ANC, and Jenny Friedman on behalf of the IFP, but none of that is of particular relevance.

And then annexure G at page 28 is a Police report of an arrest on the 28th of March where further firearms were seized. The report is to the effect that a group of people from IFP leaders from the Alexandra Hostel were travelling along Louis Botha Avenue on the 28th of March on their way into town. The Chairperson of the IFP in Alexandra Hostel and some others, they were arrested and then of particular relevance is at the bottom of page 28, the Makorov, the CZ 65 and so on that was seized, according to the Police. The next annexure is the evidence.

So we say in paragraph 14, this is where it all comes together, Chairperson, that numerous other weapons and ammunition were seized by the Police from marchers during the course of the 28th of March '94 and those details are set out in annexure - details of the weapons are in annexure E, details of the ammunition is in annexure F and in footnote 16 we refer to the SAP report.

MR LAX: Were any of the firearms you just referred us to in annexure G ever tested ballistically or linked to any of the exhibits in any way?

MR BERGER: There's no evidence that they were linked to any of the exhibits.

The bottom line of the memorandum is this, that many shots, in that incident, many shots were fired from Shell House in the direction of the marchers, many shots were fired from the marchers in the direction of Shell House, that's the first point. And the second point is that marchers - the marchers at Shell House were armed and the marchers generally on that day were armed. The details of the arms and ammunition are set out.

Chairperson, that concludes the presentation of the memorandum. There are just a few other items that we wish to hand in at this stage, the first is another photograph, perhaps if it could be marked "D55".

It is a black and white photograph, being photograph no 16, it was handed in at the inquest, my learned friends would have copies of that, it was photograph 16 in volume 2 of the photographs handed in by the ANC. It depicts a scene shortly after the shootings, we don't know exactly ...(inaudible) a scene of the west pavement of King George Street taken looking south, and it - yes, perhaps if I could hand it in - resources are running low, I don't even have a copy left for myself, but it's fine, from memory, no, no, Chairperson, from memory it depicts the marchers who are injured, lying on the western pavement and it shows people lying as far up as, it looks like lying underneath that sign of the American fish and chips shop, which is - yes, which is where Mr Diaz was observing the events from, the Mr Diaz that has been referred to, and it would be the shop - one shop south of the Woburn Pharmacy.

There are two affidavits which we hope to hand in. The first affidavit is an affidavit by a Policeman - my learned leader, Mr Bizos says he'll deal with the Policeman, I will then deal with the final affidavit before I hand over. It's an affidavit of a person, Mr Oscroft Mongi Ndlovu, our learned friends have copies of the affidavit, but I think there are enough to go around. This person was employed by the ANC at the time, he was at Shell House on the day, and he ...(intervention)

MS KHAMPEPE: What's his name again, Mr Berger?

MR BERGER: Oscroft Mongi Endlovu, who was employed in the security department of the ANC at Shell House at the relevant time and he is the person who was referred to as Madodi and seen on the photograph. You will recall that one of the witnesses was cross-examined, asked do you know that person, he said, yes I know him as Madodi, this is the person, and he says that he had a Makorov, he was given the Makorov pistol on the day and he says in paragraph 9,

"I remained at Shell House until I knocked off at about 5pm. Before I left I gave the Makorov back to Ngeba", that's Mr Gadu. "I did not fire any shots with the Makorov, I'm advised that the Makorov and other unlicensed weapons were subsequently handed in the the SANDF."

And in paragraph 5, just so that there's not doubt, this is not a weapon that came out of the armoury, he says,

"Later in the morning there was a second deployment. I remained deployed in the foyer under Joe my baby, Mr Sislabane. I was told to go to Ngeba to get a fiream, he gave me a Makorov pistol, I did not sign any register. I went back downstairs."

MS KHAMPEPE: Are you going to let us have copies of that affidavit?

MR BERGER: Indeed, yes, I was just putting it in some sort of context. Perhaps ...(intervention)

CHAIRPERSON: ...(inaudible)

MR BERGER: Bundle "B".

MR LAX: So just for the record, that will be 272 - 274.

CHAIRPERSON: No, 272 is the ...(indistinct) number.

MR LAX: Of "B"?

CHAIRPERSON: Yes.

MR LAX: Pages, page number.

MR BERGER: Yes, it will be from 272 - 274. Thank you, Chairperson.

MR BIZOS: Mr Chairman, whilst we have bundle "B" before you, we would ask for leave to hand in an affidavit and the document annexed to it of Martinus Christoffel Weldhagen, there are four copies. Mr Chairman, this - if you turn to the third page of that document, you will see that there is a letter dated the 28th of the third '94, which is annexed to the affidavit of the deponent, which he says that he was approached at approximately 11h30 on that day for the purposes of declaring Johannesburg an unrest area, that appears in paragraph 2 of the affidavit. What we want to refer to, a number of paragraphs in that letter for the motivation which is, we submit, a summary of what was happening in Johannesburg on that day in order that the Shell House incident may be viewed as part of a wider picture. I don't know whether you want me to read it in Afrikaans or paraphrase it?

CHAIRPERSON: ...(inaudible)

MR BIZOS: What it says is that a mass meeting was planned for the 28th and that the supporters of the party on that day committed a number of violent acts around Johannesburg - streets in Johannesburg, I beg you pardon, in Soweto and around and in its vicinity were blockaded, there were stone throwing and assaults on pedestrians, shots at them, and that according to information people died during the night.

Paragraph 3, there were roadblocks erected and two houses were burned, shots were fired at Policemen manning roadblocks, the gist of it is, there was so much violence around in paragraph 3, but more particularly in paragraph 4, from approximately 06h00 Inkatha supporters came into the centre of Johannesburg and began roaming around. Most of them came by foot from the hostels.

The supporters of the IFP moved about in the middle of the city. Pedestrians were chased and attacked. Shots were fired from buildings and that ten persons died and 40 were injured. Eight of the persons died at the corner of King George and De Villiers Streets. There were 900 Policemen, the Army was deployed.

Then in paragraph 6, people were armed with traditional weapons, various AK47s were also noticed amongst the groups. Arrests for the unlawful possession of weapons were carried out. The Selby Hostel was searched and a number of weapons were found there. That is, Mr Chairman, a summary of the events that occurred, and we would submit that this document forms information which we ask you to receive which, taken together with the radio channel 27 and the direct viva voce evidence given, may help you to form a picture of what was happening on the day in question. Thank you, Mr Chairman.

That is as far as we want to take our case at this stage, Mr Chairman. Of course, once we have heard the evidence of the objectors or other evidence that may be led by their legal representatives, we will ask you to - we may ask you to hear further matters. Have I given you the page 275?

CHAIRPERSON: Yes.

MR BIZOS: 275 in bundle "B", yes.

CHAIRPERSON: I've numbered this ...(inaudible)

MR BIZOS: Thank you, Mr Chairman.

CHAIRPERSON: ...(inaudible)

MR BIZOS: To declare Johannesburg an unrest area which would have conferred certain powers upon Police Officers and other emergency ...(intervention)

CHAIRPERSON: ...(inaudible)

MR BIZOS: It was done and there is a Government Gazette attached.

MR DORFLING: Chairman, members of the Committee, just in response to the memorandum that Mr Berger prepared, the fact that we didn't reply to what he has said, does not mean that we agree with what he has said, we will in due course respond formally to that. I may just indicate to the Committee that there are a number of things which we most definitely do not agree with, for instance where ballistics experts said it could have been a certain firearm from a certain position, it then becomes a fact that it is such a weapon fired from a certain position.

CHAIRPERSON: ...(inaudible)

MR PRETORIUS: Indeed, I'm just pointing it out and say that in due course we will respond to it, the fact that we don't respond to it now must take that we accept everything that's in that document.

MR DORFLING: Mr Chairman, my position is identical to that of Mr Pretorius, there's a number of points I've already noted, but I would rather at an appropriate time address you more fully on all the points I would like to raise.

Mr Chairman, at this point in time I would like to place certain facts on record. The matters had been curtailed somewhat by the withdrawal of the applications by two of the applicants at the time when they were to be called. Earlier in the week I had certain discussions with Ms Patel with regard to who should be called and which witnesses should be subpoenaed. At that point in time we did not foresee that we would need more than one or at most two witnesses to possibly give evidence in these proceedings.

We then started to try and secure the presence of at least two such witnesses, we tried to secure the presence of Mr Diaz, that of Mr Stevens, that of Mr Potgieter, which I've already yesterday indicated we couldn't secure. We thereafter also tried to secure the presence of Sergeant van Reenen. Sergeant van Reenen is however of the opinion after he obtained some legal advice that he would like a formal subpoena, that he would like sufficient time to prepare, and that he's not prepared to give his evidence at this point in time. Earlier this week when we didn't sit because of one of the learned Commissioners not being available, we had a meeting amongst the legal teams of the objectors and we at that point in time decided that the witnesses that could now called, should first of all be the independent witnesses who has got no specific interest to either one of the parties involved and that's why we endeavoured to try and get hold of these witnesses.

At this point in time as far as the objectors are concerned, the individual objectors who we envisage we might call are but a few in number. The position with their evidence is that they are not going to be of much assistance to this Committee with regard to putting a proper picture before the Committee as to what happened. They're unsophisticated and uneducated people and we decided amongst the legal teams appearing on behalf of the objectors that we want to first call the independent witnesses to place that picture before the Committee to give the globular picture before individuals are being called as objectors who can't give a full perspective of what happened.

CHAIRPERSON: I'm going to tell you that it's a pity that you've taken such a decision without consulting us. This meeting has been assembled at a considerable expense and such witnesses as are available, we would like you to proceed with them. The fact that your witnesses are unsophisticated and so on is hardly a reason. They're going to give an account of what they did, where they were at the time and so on, how they were attacked and why that happened. Whatever the independent witnesses may say or not say cannot have a bearing on the acts of the individuals that are concerned and I would urge you to proceed with the - by calling the witnesses please.

MR DORFLING: I understand the position fully, Mr Chairman, right at the outset at the time we had meetings concerning, or prior to the commencement of these proceedings we made our position quite clear, we on record by indicating that we would like the independent witnesses to give evidence. At that point in time it was indicated to us that the Committee would revert back as to whether the Committee would themselves call these witnesses or not. It was then indicated that we must make the necessary arrangements ourselves to get these witnesses available, that was indicated to us ...(intervention)

CHAIRPERSON: You knew that your independent witnesses some of them will not be available because you couldn't trace their address, some of them not available for other reasons. You knew that a long time ago, at any rate you knew that during these proceedings. Now that is no reason why you can't call your witnesses to give evidence.

MR DORFLING: With the greatest respect, Mr Chair, the indication that we should secure the presence of those witnesses was only given by the Committee early this week at one of the gatherings we had out of this ...(intervention)

CHAIRPERSON: But we gave you no indication in any case at any stage that we are going to be ones that would call witnesses.

MR DORFLING: In ...(indistinct) we've been asking for such an indication ever since the first meetings. We were requesting the Committee to approach these, or the Committee to give consideration to approaching these witnesses. The indication we gave ever since the outset was that we need these witnesses to give evidence, to give an independent account. As far as the further objectors are concerned, the first objector on the list of witnesses is that - is Mr Mbata, he's not my client, he's Mr Pretorius's client. I think Mr Pretorius - I'm sorry Mr Mapanhga, I think I mentioned the wrong name, Mr Mpanga. He's Mr Pretorius's client, but I think Mr Pretorius holds a similar position than me and I would rather like him to address the Committee on that.

CHAIRPERSON: Mr Pretorius?

MR PRETORIUS: Mr Chairman, just before I call him, I just wish to confirm that insofar as the views regarding the independent witnesses, etc is concerned that has just been expressed, that also applies to myself. We also hold the same view that we prefer the independent witnesses to testify before the dependant or the victims are called.

CHAIRPERSON: ...(inaudible) why the evidence of the independent witnesses can't be heard when they're available and why the evidence of the other witnesses can't be heard in the meanwhile?

MR PRETORIUS: I will then proceed and call Mr Maphanga. The problem is he's in a wheelchair at this stage and I think we must get a position or a place where he physically can sit and testify.

CHAIRPERSON: Yes, please.

MR PRETORIUS: He cannot take the normal position which was taken in by all the other witnesses. I wonder if we maybe can make some kind of an arrangement so that we can get him in the position to testify.

CHAIRPERSON: Certainly.

MR LAX: Mr Pretorius, we can assist him by picking his wheelchair up onto the platform here, it wouldn't be that difficult and he could sit by the table where the other witnesses sat, there's sufficient space there. ...(inaudible) is to let him go out that door over there and round through the passage.

JUDGE NGCOBO: You're calling Mr who?

MR PRETORIUS: Maphanga.

CHAIRPERSON: What are his full names Mr Pretorius.

MR PRETORIUS: Bear with him one moment, his one name is Alfred, I'm just getting my - get the full names. He's Silwayiphi Alfred Maphanga. The witness will testify in Zulu.

CHAIRPERSON: Mr Maphanga?

SILWAYIPHI ALFRED MAPHANGA: (Duly sworn in, states)

CHAIRPERSON: Yes, please proceed.

MR PRETORIUS: Mr Maphanga, how old are you now?

MR MAPHANGA: I'm 16 years old.

MR PRETORIUS: I am informed that he said he was born in 1960, not that he's sixteen years old, I'll just get confirmation on that.

MR MAPHANGA: I'm 60 years old.

CHAIRPERSON: Do you know when you were born, do you know what year you were born in?

MR MAPHANGA: I was born in 1965.

MR PRETORIUS: Mr Maphanga, where were you born and where did you grow up?

MR MAPHANGA: I was born in Ladysmith and I was brought up in Kwa-Zulu Natal in Gandla.

MR PRETORIUS: What is the highest scholastic achievement you achieved?

MR MAPHANGA: Standard two.

MR PRETORIUS: When did you come to Johannesburg?

MR MAPHANGA: During 1983.

MR PRETORIUS: When you came to Johannesburg, what did you do in Johannesburg?

MR MAPHANGA: I sold flowers.

MR PRETORIUS: Where did you stay in Johannesburg?

MR MAPHANGA: I was staying at Mansfield.

MR PRETORIUS: Are you married?

MR MAPHANGA: I'm not.

MR PRETORIUS: Do you have children?

MR MAPHANGA: Yes, I do.

MR PRETORIUS: How many children?

MR MAPHANGA: I have seven children.

MR PRETORIUS: Now, Mr Maphanga, shortly before the 28th of March 1994 you heard of a certain march or a certain meeting, is that correct?

MR MAPHANGA: Yes, I did hear that we were going to a meeting, not a march.

MR PRETORIUS: Can you explain the occasion where you heard about this meeting and who told you about this meeting, and what was the purpose of this meeting?

MR MAPHANGA: I heard at Mansfield that there was going to be a meeting.

MR PRETORIUS: Who told you it?

MR MAPHANGA: We were told by the authorities.

MR PRETORIUS: Which authorities?

MR MAPHANGA: At the hostel, the authorities at the hostel.

MR PRETORIUS: Is that party political authorities or what authorities, can you name the specific person and what is the position which he held?

MR MAPHANGA: He's a leader amongst the hostel community.

MR PRETORIUS: What is his name?

MR MAPHANGA: His name is Mbatha, but Mbatha is now late.

MR PRETORIUS: Is it correct that he's in fact - he was a Zulu Induna?

MR MAPHANGA: That is correct.

MR PRETORIUS: What did Mr Mbatha tell you, was it - let us just get the occasion right, was it during a meeting at the hostel that Mr Mbatha addressed all the people at Mansfield Hostel, was that when you heard about the particular meeting?

MR MAPHANGA: Yes, he said that the King had called a meeting and we were supposed to attend that meeting.

MR PRETORIUS: Did he tell you where the meeting would take place?

MR MAPHANGA: He said the meeting was going to be at the Library Gardens.

MR PRETORIUS: Now on the particular day, the 28th of March 1994, how did the people from Mansfield Hostel get to Johannesburg?

CHAIRPERSON: How did he get.

MR MAPHANGA: We boarded the train up to Park Station.

MR PRETORIUS: When you got to Park Station?

MR MAPHANGA: The last time I was conscious was when I was getting out getting - alighting from the train and I don't know what happened thereafter. I regained my consciousness at the hospital.

MR PRETORIUS: That particular day, were you armed with firearms or anything alike?

MR MAPHANGA: No, we were not armed, we had knob kieries as well as shields.

CHAIRPERSON: When he says "we", are you content with the answer he's talking about himself?

MR PRETORIUS: He includes himself.

MR MAPHANGA: I'm referring to us, that is the group from the Mansfield Hostel, not only myself.

MR PRETORIUS: But you yourself didn't have any firearms either.

MR MAPHANGA: No, I don't even know a firearm.

MR PRETORIUS: Do you - how would you have know what route to take or how to walk to Library Gardens on that particular day?

MR MAPHANGA: Yes, we knew the route to the Library Gardens.

MR PRETORIUS: Would each one take any route that he wanted to or would the group walk together, how would the procession take place?

MR MAPHANGA: We were a group.

MR PRETORIUS: Who walked in front of that group?

MR MAPHANGA: It's the Induna.

MR PRETORIUS: So the Induna led the way and the group just followed behind the Induna?

MR MAPHANGA: That is correct.

MR PRETORIUS: Did you on that day know a place or a building called Shell House?

MR MAPHANGA: No.

MR PRETORIUS: Were you ever informed about anything or any place that your group of marchers were supposed to attack?

MR MAPHANGA: No I have no knowledge thereof.

MR PRETORIUS: What was your sole purpose for being in Johannesburg on that particular day?

MR MAPHANGA: I'm working here in Johannesburg.

MR PRETORIUS: No, I mean on that particular day when you got injured, why did you come to Johannesburg itself with a group of people, what was your purpose?

MR MAPHANGA: We had gone to a meeting or we were supposed to go to a meeting that was to be held later that day.

MR PRETORIUS: And that was the meeting in support of the Zulu King, is that correct?

MR MAPHANGA: That is correct.

MR BIZOS: There is a conflict, I don't think that our learned friend should really lead the witness. He knows how to put the question.

CHAIRPERSON: You're heard that he said they were told there was a meeting called by the King and they came to attend that meeting, isn't that what you're trying to get at?

MR PRETORIUS: That's indeed what I tried to get at and that was all that I ...(indistinct).

Mr Maphanga I'm going to show you photographs. Mr Chairman, out of the video that was shown in this court, certain photographs were made which were used during the inquest. I have prepared photocopies, that is colour photocopies of the photographs as it was given to us of that whole page. I beg leave to hand four copies of that photographs to the Honourable Chairman and Honourable members of the Committee.

CHAIRPERSON: Thank you.

MR PRETORIUS: My learned friends, I have indicated to them prior to this the exact photographs to which I refer and they are in possession of that whole bundle of photos that we will use.

Now Mr Maphanga, ...(intervention)

CHAIRPERSON: Let's give this photograph a designation.

MR PRETORIUS: I have not got the correct page of bundle "B", the last page before me, but I would suggest it be included there, Honourable Chairman.

CHAIRPERSON: Well I will tell you the last page of bundle "B" as I've numbered it is 290, this will be 291. So this will go in as exhibit "B291".

MR PRETORIUS: Thank you, Honourable Chairman.

Mr Maphanga, in front of you now there's a page a page with a number of photographs on it. Do you recognise anybody on that particular page, if you can?

MR MAPHANGA: I can see myself.

MR PRETORIUS: Where are you Mr Maphanga, which photograph, can you just indicate please?

MR MAPHANGA: At the top part as you're starting the page.

MR PRETORIUS: Mr Honourable Chairman, I may ...(intervention)

MR MAPHANGA: It's the first photo.

MR PRETORIUS: If I may assist, the photograph that was indicated by the witness is the very first photograph in the left top corner of the particular page.

Mr Maphanga, the second photo on that very same page, the one just to the right of the one that you've indicated now, do you recognise anybody on that particular photo?

MR MAPHANGA: No I don't recognise any.

MR PRETORIUS: Mr Chairman, I don't know if the witness understood which photograph I referred to.

MS KHAMPEPE: Mr Pretorius they seem to be numbered, I see the one that you've just referred to is 34.10, maybe you can indicate whether you are referring to video 34.20.

MR PRETORIUS: I am indeed referring to that, but unfortunately I cannot convey it to this witness due to the fact that he's not literate enough that I can indicate it to him in that way. I wonder if I can ask my clerk whose with to assist me and to go and point out the particular photograph to him with the permission of the Honourable Chair.

CHAIRPERSON: Yes, let him do that.

MR PRETORIUS: Mr Maphanga, ...(intervention)

JUDGE NGCOBO: Just before he goes on, my arithmetics may be - my numbering of "B275" goes all the way to 291, so that the next one must be 292.

MR LAX: I agree with you.

CHAIRPERSON: It will be 292.

MR PRETORIUS: Thank you, Mr Chair.

CHAIRPERSON: Thank you.

MR PRETORIUS: Mr Maphanga, the photograph has not been pointed to you by Miss Minnaar. On that particular photograph do you recognise someone?

MR MAPHANGA: No.

MR PRETORIUS: Mr Chairman, I do not intend to play the video all over again. I may place it on record that if one looks at the video and if my learned friends or the ANC wants to insist that we look at the record at the particular video, we can do that, but this is a running video and the two photographs on the top page ...(intervention)

MS KHAMPEPE: Mr Pretorius, may I probably ask something from the ...(indistinct). This photo that you have been shown, who is it that is lying down there?

MR MAPHANGA: Yes, it's myself.

MS KHAMPEPE: Thank you.

MR PRETORIUS: Thank you, madam, member of the Committee, I'm indebted for your assistance.

The shield that's underneath your arm there, whose shield is that?

MR MAPHANGA: It's mine.

MR PRETORIUS: Now, Mr Maphanga, you are today in a wheelchair. Can you in any way wheel that chair yourself while sitting in that chair?

MR MAPHANGA: No, I'm not able to.

MR PRETORIUS: Your arms, can you use your arms as you could have done before?

MR MAPHANGA: No, I'm not able to.

MR PRETORIUS: How do you get in and out of that wheelchair, can you do it yourself?

MR MAPHANGA: No, I'm not able to, I have to be helped by other people.

MR PRETORIUS: Where do you live now, Mr Maphanga?

MR MAPHANGA: I still stay in Soweto.

MR PRETORIUS: Who helps you, where do you stay and in what circumstances do you stay?

MR MAPHANGA: I'm staying with my brothers and they are maintaining me.

MR PRETORIUS: Can you do any work to earn a living?

MR MAPHANGA: Please repeat your question.

MR PRETORIUS: Can you do any work to earn money?

MR MAPHANGA: I have no job now because I'm confined to this wheelchair, there's nothing that I'm doing now.

MR PRETORIUS: Who supports your children?

MR MAPHANGA: No one supports my children.

MR PRETORIUS: Mr Maphanga, how do you feel about these people that shot you?

MR MAPHANGA: I only know that I was shot by ANC, but I don't know them.

MR PRETORIUS: How do you feel, do you want to forgive them for what they've done to you?

MR MAPHANGA: I'll never ever forgiver them, I have no peace in my heart for them, I don't even have a single thread of peace and I'm saying that to them that I have absolutely no peace with them. It's no secret this was intended to be, it was not a mistake. Why do they ask for forgiveness after they should have prevented it in the first place?

MR PRETORIUS: Mr Maphanga, at any stage prior to this shooting incident, were you at war with the ANC or involved in violent clashes with the ANC?

MR MAPHANGA: I have no knowledge to that effect. I just saw that we were being killed.

MR PRETORIUS: Are you a member of the IFP?

MR MAPHANGA: Yes, I am an IFP member.

MR PRETORIUS: I've got no further questions to this witness, Honourable Chair.

MR MAPHANGA: What I would like to ask, those who shot at us, what are they saying when they see me wheelchair bound? I would like the Commission to ask them as to whether they feel any pain or feel any remorse to see me confined to this wheelchair, this is as a result of their work. My children are suffering, they're not even attending school, but theirs, for sure they are going to school and they are being supported. Mine are suffering and their children are not suffering, they're not in the same position as my children.

CHAIRPERSON: Your lawyers have asked them all the questions which your lawyers thought were relevant to your case, and they have answered to the questions that were put by your lawyers, but at an appropriate stage if one knows who to ask this question of, this question may be asked during cross-examination.

JUDGE NGCOBO: Mr Maphanga, your question with regard to the applicants as to what they're saying about your position and situation today, the fact that you can't work, you cannot even support your family, is that your question? When they were rendering their evidence to this Committee with regard to their amnesty application some of them did say that they do or they regret for those actions and showed some remorse.

MR MAPHANGA: Can you go to a war and have a weapon and not get hurt? They knew very well that they were going to injure us or hurt us, that they are not injured. I have not question, thanks.

MR BERGER: My learned friend, Mr Tipp will ask questions.

CROSS-EXAMINATION BY MR TIPP: Mr Maphanga, can I clarify first of all, at a certain stage of your evidence today you said that the last time that you were conscious was when you got off the train at Park Station, is that correct?

MR MAPHANGA: Yes that is correct.

MR TIPP: Thereafter you were asked some questions concerning how the groups move and that they move with an Induna in front and that the group follows the Induna, do you remember being asked those questions?

MR MAPHANGA: Yes, that's what I said.

MR TIPP: Did you intend your answers to those questions to refer generally to how groups move or to refer to the way in which you moved on that day?

MR MAPHANGA: I have said what I said and I won't change it.

MR TIPP: Mr Maphanga I understand you've said what you've said, I'm just trying to clarify whether you have some recollection of moving behind your Induna, away from Park Station or whether you don't?

MR MAPHANGA: Yes, we're moving behind the Induna, the leader.

MR TIPP: Would you please tell the Committee what you remember about that movement please, from the time that you left Park Station and I'm going to ask you a few particular questions to make it easier for you. Who was the Induna who was leading the group in which you moved?

MR MAPHANGA: It was Mbatha.

MR TIPP: Can you tell us how many groups moved away from Park Station?

MR MAPHANGA: I don't know, quite many.

MR TIPP: Which route did you follow?

MR MAPHANGA: The last time I recall was when I was getting off the train at Park Station, then I lost consciousness.

MR TIPP: Mr Maphanga, I don't want to ask you unnecessary questions, can we take it then that you have no memory at all of how you moved away from Park Station until the time that you were injured?

MR MAPHANGA: I don't remember anything. All I remember is when we got off and left that's it. From there I was in hospital, I did not even know the cause whey I was there.

MR TIPP: Mr Maphanga, I'm going to ask you a couple of questions about the meeting that you say was addressed by Induna Mbatha at Mansfield Hostel.

MR MAPHANGA: Yes, proceed.

MR TIPP: Would you tell us please, how many meetings you attended that were addressed by Induna Mbatha?

MR MAPHANGA: With regard to?

MR TIPP: With regard to the meeting that you wanted to attend in Johannesburg.

MR MAPHANGA: I went to Pretoria, I went to Ulundi, I went to other places until the day when I met my fate.

MR TIPP: Mr Maphanga, I'm just asking you about meetings at which there was discussion concerning the - what you've called the meeting that the King wanted held at Library Gardens on the 28th of March. Can you tell us please how many meetings you attended in relation to that ...(indistinct)?

MR MAPHANGA: We were shot at and dispersed, we never even could meet. We did not even hear why the meeting was called.

MR TIPP: Mr Maphanga, let us just deal with the situation at Mansfield at the hostel where you were living at the time, before that day of the 28th of March, are you with me, Mr Maphanga?

MR MAPHANGA: About? I did not hear quite well.

MR TIPP: Let me repeat it. When your advocate, Mr Pretorius was asking you questions, he asked you when you heard of the meeting that was to be held and you replied that you heard about it at Mansfield, do you remember that?

MR MAPHANGA: Yes, that's what I said.

MR TIPP: Now, I'm going to ask you questions only about that meeting at Mansfield, do you follow me?

MR MAPHANGA: Yes.

MR TIPP: Was it only Induna Mbatha who addressed that meeting at Mansfield?

MR MAPHANGA: I don't know, I was at work, I just heard everybody talking.

MR TIPP: Am I to understand then that you never attended any meeting at Mansfield at which there was discussion about the King's Imbizo to be held at Library Gardens?

MR MAPHANGA: I wouldn't have missed that kind of meeting because that's our key, who called us?

JUDGE NGCOBO: Excuse me, sir, I'm trying to listen to the Zulu and the translation, but I just seem to get lost somewhere, I can't hear. Then I guess there's something wrong with this.

MS KHAMPEPE: Mr Tipp, may I interpose and probably clarify a few issues to Mr Maphanga so that you can be on the same page.

MR TIPP: I would be grateful.

MS KHAMPEPE: Do you remember Mr Maphanga, you tendered evidence to this Commission when Mr Pretorius, whose you attorney, asked you as to how did you get to that meeting, that is the Library Gardens Meeting? In your evidence you said you heard from Mr Mbatha, whose an Induna.

MR MAPHANGA: Yes.

MS KHAMPEPE: This attorney is trying to establish something, he's asking you questions with regard to the meeting that was called by Mr Mbatha, where you were told together with others who had attended that meeting, about the meeting that was called by the King.

MR MAPHANGA: Can you ever remember or recall the people you meet the previous year?

MS KHAMPEPE: Please listen to the questions, all I was trying to gather here was for you to be on the same wavelength with the line of questioning. If there are things that you cannot recall, you are at liberty to state this to the Commission, there is nothing wrong whatsoever by saying so, that you don't have an clear recollection, but all we're asking from you is to listen carefully and answer when you can.

MR MAPHANGA: I will answer what I recall, but if I don't recall anything, I won't answer or I will say so.

MS KHAMPEPE: Thank you, Mr Chair.

MR TIPP: Thank you learned Committee member. Mr Maphanga, on that basis you tell us what you can recall, I'm asking you then about the meeting that Induna Imbatha addressed you at. Now, can you tell us please what Induna Imbatha told you about the purpose of the meeting that was to be held at Library Gardens?

MR MAPHANGA: He said we have been called by the King and that was the end, or he stopped there.

MR TIPP: Did he explain to you what it was that the King was concerned about?

MR MAPHANGA: He did not explain.

MR TIPP: Did he indicate whether anybody would be addressing that meeting at Library Gardens?

MR MAPHANGA: It was the King who was going to address the meeting.

MR TIPP: Was anything said at that meeting at Mansfield, Mr Maphanga, concerning the ANC?

MR MAPHANGA: Nothing.

MR TIPP: Do you remember whether anything was said at that meeting at Mansfield about the election that was going to be held in the following month?

MR MAPHANGA: Nothing was said.

MR TIPP: Mr Chairman, would you just grant me a moment?

CHAIRPERSON: ...(inaudible)

MR TIPP: Mr Chairman, in consequence of Mr Maphanga's evident difficulty with recalling the events of the day, of recalling any detail in respect of the preceding organising events that would be or assistance to the Committee, although we don't in any way agree with the general trend of what Mr Maphanga has expressed here, we certainly understand his difficulties, we don't agree with it, but we believe with respect that we would advance the work of the Committee by moving on to another witness. We in those circumstances propose not to tax Mr Maphanga any further.

CHAIRPERSON: I understand that you learned when you were in hospital that you were injured, is that correct?

MR MAPHANGA: Yes, that is correct.

CHAIRPERSON: Did anybody tell you how you were injured?

MR MAPHANGA: Yes, they told me as to how I was injured.

CHAIRPERSON: And did they tell you where you were injured?

MR MAPHANGA: They told me that I was shot at the meeting down there at the Library Gardens.

CHAIRPERSON: They told you that you were injured or shot at the Library Gardens?

MR MAPHANGA: Yes, that is correct.

CHAIRPERSON: And the people that told you this, who were they?

MR MAPHANGA: I don't remember their names.

CHAIRPERSON: Did you know them?

MR MAPHANGA: I did not know them. They told something that was there because it is evident, here am I confined to this wheelchair.

CHAIRPERSON: Now just try and answer, I'm not going to be unnecessarily long with you, the people that told you that you were injured told you what that happened at the Library Gardens?

MR MAPHANGA: Yes, that's what they told me.

CHAIRPERSON: Did anybody ever tell you that you were seen in the region of a place called Shell House?

MR MAPHANGA: I don't even know Shell House. I don't even know that place.

CHAIRPERSON: Nobody told you about it?

MR MAPHANGA: It's my first time to hear about that place here, I don't know that place.

CHAIRPERSON: Thank you. Are there any questions you wish to ask you client?

MR PRETORIUS: Mr Chairman, if I may just place it on record, I don't think it is in any way in dispute that the particular pictures that I showed to Mr Maphanga, the objector, was pictures of a video which was taken on the corner of King George and De Villiers Street immediately outside Shell House, that is all that I wish to place on record for record purposes. I don't want to ask my client any further questions.

CHAIRPERSON: Ms Patel, any questions you wish to this witness?

MS PATEL: No thank you, Honourable Chairperson.

CHAIRPERSON: Thank you very much.

WITNESS EXCUSED

MR VAN WYK: Thank you, Mr Chairman, I want to call Mrs Ntombela, being the mother of one of the deceased people, Veli Raphael Ntombela. Mr Chairman, she will testify in Zulu.

CHAIRPERSON: Mrs Ntombela, can you hear me, I am going to ask you whether you are prepared to take an oath to tell the truth today, do you understand?

MS NTOMBELA: Yes.

VELI RAPHAEL NTOMBELA: (Duly sworn in, states)

EXAMINATION BY MR VAN WYK: Thank you, Mr Chairman. Mrs Ntombela can you mention to the Commission how old are you?

MS NTOMBELA: I was born in 1934.

MR VAN WYK: What is your education?

MS NTOMBELA: We didn't go to school.

MR VAN WYK: Have you ever been married?

MS NTOMBELA: Yes, I am married.

MR VAN WYK: Is your husband working?

MS NTOMBELA: He's late.

MS KHAMPEPE: Mr van Wyk, can we please have here full names for the record?

MR VAN WYK: Can you indicate to the Committee where you reside?

MS NTOMBELA: I'm staying at Ulundi.

MS KHAMPEPE: Mr van Wyk?

MR VAN WYK: Thank you.

MS KHAMPEPE: ...(inaudible) your client her full names for the record, I don't have them.

MR VAN WYK: Thank you, Ms Commissioner, I thought she gave them before she was sworn in.

Can you for the record purposes give your full names please?

MS NTOMBELA: Agnes Delikulo.

MR VAN WYK: Could you mention to the Committee when your husband passed away?

INTERPRETER: The speaker's mike is not on.

MR LAX: Sorry, the witness is saying 1981, it's not getting - the mike is being switched somehow or other.

MR VAN WYK: Do you know how he passed away?

MS NTOMBELA: Natural causes.

MR VAN WYK: Did you have a son with the name of Veli Raphael Ntombela?

MS NTOMBELA: That is correct.

CHAIRPERSON: Can you please spell that name for us?

MR VAN WYK: Mr Chairman, can I assist you with the spelling?

CHAIRPERSON: Yes, please.

MR VAN WYK: Veli Raphael, and then Ntombela.

CHAIRPERSON: Thank you.

MR VAN WYK: This son of yours, did he support you?

MS NTOMBELA: Yes, he did.

MR VAN WYK: Do you know when he passed away?

MS NTOMBELA: Yes, during 1994.

MR VAN WYK: I want to show you a photograph and I will ask you to mention to the Committee whether you recognise the person on the photograph.

Mr Chairman, for the record purposes, the exhibit was used at the inquest and at the inquest it was marked Exhibit "X1" in bundle 2.

Can I ask her, is she prepared to look at the photo, or.

MR LAX: If you'll just hold on a second, Mr van Wyk, just give here a moment to compose herself.

MR LAX: It's okay ...(indistinct) , you can take a bit of time if you need to. Can you continue now, Ms Ntombela.

Mr van Wyk?

MR VAN WYK: I'm sorry, can I get your reply please.

MS NTOMBELA: Yes, I will.

MR VAN WYK: Did you look at the photograph?

MS NTOMBELA: Yes, I did.

MR VAN WYK: Who is that on the photograph?

MS NTOMBELA: I see my son.

MR VAN WYK: Did he have any children?

MS NTOMBELA: Yes.

MR VAN WYK: Who is at present looking after the children and maintaining them?

MS NTOMBELA: It's myself.

MR VAN WYK: Do you have any employment?

MS NTOMBELA: I'm not working, I'm self-employed, I'm weaving some mats.

MR VAN WYK: Do you have sufficient funds on your own to look after these children and to educate them, that's the deceased's children?

MS NTOMBELA: No, these are not sufficient means, because at times they don't buy these mats and we're left destitute as a family.

MR VAN WYK: Now you were present during this hearing when the guards at Shell House testified as to what they did, is that correct?

MS NTOMBELA: Yes, I was listening throughout, but I do not understand the proceedings.

MR VAN WYK: But have you heard what they said?

MS NTOMBELA: Yes, I did.

MR VAN WYK: Do you accept what they say?

MS NTOMBELA: What I could say as a mother who has given birth to a son, who has experienced suffering, I know that I'll never ever be able to forget, and I don't know how I can ever accept that, because I'm suffering now, I'm working for other women because I want to make ends meet so that I'm able to educate his children. As I'm here, I don't know what is happening to them because we are supposed to pay there school fees and I do not have the money to pay their school fees or to let them further their education, so it's very difficult on my part and I thought that I thought that my son as the breadwinner was the one who was going to maintain me for the rest of my life. I never ever had any problem because he maintained the whole family as well as his children. I could say he was the sole breadwinner and ever since he died I'm suffering and my suffering cannot even be described or equated to any.

MR VAN WYK: We have heard several of the guards expressing their regret as to what happened. Do you accept that?

MS NTOMBELA: It's very difficult for me to accept that. How can I, I don't see any way in which I can accept it.

MR VAN WYK: Do you forgive them?

MS NTOMBELA: They are with their families, their children are being maintained, they're being pampered, they're being spoiled and they are going to get educated up to wherever they want and Veli's children are remaining at home, they won't be able to further their education and they've got no one to spoil them. There is another one who I'm already realising will drop out, the rest of them I believe will end up dropping out of school because of the lack of funds.

MR VAN WYK: Do you forgive the guards for what they've done?

MS NTOMBELA: I don't know whether you're joking if you expect me to forgive them for what they have done.

MR VAN WYK: I have no further questions, Mr Chairman.

CROSS-EXAMINATION BY MR BIZOS: Mrs Ntombela, I want to say to you that we understand the difficult position that you find yourself in, and I'm sure that anyone whose had children of his own would share your views about the death of your son. You yourself don't really know what happened on that day, do you?

MS KHAMPEPE: Mrs Ntombela, will you be able to continue, are you prepared to answer questions, or would you like us to - would you like to be given a chance to recompose yourself so that you can be able to answer questions posed to you?

MS NTOMBELA: I will try.

MS KHAMPEPE: If you feel that you cannot go on, we would request you to say so and if you need a chance to recompose yourself, please do say so.

MS NTOMBELA: I think I will continue.

MR BIZOS: I'll ask the question again, you yourself don't know what happened on the day that your son was killed?

MS NTOMBELA: No, I don't.

MR BIZOS: You have heard some of the guards at Shell House say that they shot at people, you heard that evidence?

MS NTOMBELA: Yes, I did.

MR BIZOS: And you heard them say that they did it because their lives were in danger?

MS NTOMBELA: Yes, that is correct.

MR BIZOS: Now, did anybody, your lawyers or anyone else explain to you that according to the evidence your son was not killed from a gun that was shot by the people here in court that spoke, did anybody explain that to you?

MS NTOMBELA: All I know is that he was shot, I do not know anything besides that.

MR BIZOS: If I tell you that it is generally accepted in the evidence that your son was not killed out of a bullet coming from any of the guns used by these guards, can you not find it in your heart to say, well, I don't know what happened there, I'm told that the people that are before this Committee used guns, but their guns did not kill my son, can you not find it in your heart to say that, my attitude will change because I was not informed properly?

MS NTOMBELA: What is bad is that a dead man tells no tails, now he cannot come forward and tell us as to who shot him and now I'm not going to listen to what is being said here, whether it is true or it isn't, I'm just not going to listen.

What I'm going to say is that I lost a son and that's it.

MR BIZOS: Did anybody advise you that in the difficult circumstances that you find yourself in, that there is an emergency fund to which you could have applied for help in order to solve some of your difficulties?

MS NTOMBELA: I've never been informed.

MR BIZOS: Well, perhaps you can speak to the people working for the Commission, either when the court adjourns or tomorrow and try and find out. Thank you, Mr Chairman, I don't want to ask any further questions.

JUDGE NGCOBO: Mrs Ntombela, I would just like to ask you briefly about the deceased's children. How many children does he have?

MS NTOMBELA: He has five children.

JUDGE NGCOBO: How old are they?

MS NTOMBELA: I do not know their respective ages.

JUDGE NGCOBO: Are they of school going age?

MS NTOMBELA: Yes.

JUDGE NGCOBO: Could you please just give me their respective classes?

MS NTOMBELA: The first one is in standard 5.

JUDGE NGCOBO: And please give me his or her name.

MS NTOMBELA: The name is Mpendulo and Mpendulo is in standard 5. Siboneso, Siboneso is in standard 3. Siyabonga, Siyabonga is in standard 2. Nontebo, and a set of twins who are at pre-school, their names are Sandile and Sanele.

CHAIRPERSON: What standard was Nontebo in?

MS NTOMBELA: He was in first year, grade 1 or sub-A.

JUDGE NGCOBO: Was the deceased married?

INTERPRETER: The answer was not heard by the interpreters.

JUDGE NGCOBO: Who are these children staying with?

MS NTOMBELA: They are staying with me. The twins are with their mother.

JUDGE NGCOBO: Do you know marriage constitution was it?

MS NTOMBELA: It was a white wedding, they signed at the Magistrates Court, it was not a traditional or common law thing.

CHAIRPERSON: Can I ask you, how old was your son, please?

MS NTOMBELA: He was born in 1963.

CHAIRPERSON: And do you know what work he did?

MS NTOMBELA: He was working at Allied.

MR LAX: Could you just give us the name and whereabouts of your son's wife?

MS NTOMBELA: It's in Johannesburg.

MR LAX: And the name please?

MS NTOMBELA: He was a truck driver at Allied.

MR LAX: Sorry, the question wasn't properly translated, I said what is the name and whereabouts your late son's wife?

MR VAN WYK: Mr Commissioner, can I assist you, she was of the objectors, she had attended most of the hearing here. I do have some of her particulars which I can supply to you. I see that she unluckily couldn't attend today because of her employment.

MR LAX: That's fine, just so we get it on record for the purposes of any possible findings that may be made.

MR VAN WYK: As you please, her name is Sesi Ntombela.

MR LAX: Thanks, Mr van Wyk, the rest we can get later.

MR VAN WYK: If necessary I can supply it to you, thank you.

CHAIRPERSON: Thank you very much.

MR VAN WYK: Mr Chairman, there's one thing - I don't want to re-examine the witness, I just to place one aspect on record, it is not totally correct to say that this man was not shot and killed with an AK by one of the ANC guards, we will still submit he was shot and killed by an ANC guard, whether from the corner or from the parapet. The ballistical evidence concerned the fragments, and the fragments ballistically could not positively be connected to a specific AK47, but that does not exclude either of the two AK47s. I will address you on that aspect too.

CHAIRPERSON: I understand.

MR VAN WYK: Thank you, Mr Chairman.

CHAIRPERSON: Thank you.

MR PRETORIUS: Mr Chairman, may I perhaps with your leave just ask the witness one question?

CHAIRPERSON: Certainly.

MR PRETORIUS: Your son, did he hold any position in the Zulu tradition?

MS NTOMBELA: I don't know what position he had according to the Zulu tradition. According to my knowledge he had none.

MR PRETORIUS: Do you know what an Induna is?

MS NTOMBELA: Yes, I do.

MR PRETORIUS: And do you know whether he was an Induna or not?

MS NTOMBELA: He was not an Induna. There are two types of Indunas.

MR PRETORIUS: Yes, would you like to explain?

MS NTOMBELA: There is a Chief and there is a person who is placed as a leader for the younger generation, that is the bachelors.

MR PRETORIUS: Did your son hold any of those positions?

MS NTOMBELA: No, he was nothing, he didn't hold any position.

MR PRETORIUS: Thank you, Mr Chair.

WITNESS EXCUSED

CHAIRPERSON: Yes, thank you very much. This brings us to the end of the hearing for the day. We adjourn now and we'll resume at 09h30 tomorrow morning.

HEARING ADJOURNS