ON RESUMPTION
CHAIRPERSON: We continue our hearing and we now come to the application of Dumisane Eugene Nkabinde, AM 5636/97, who is represented by Mr R Harkoo. All the other parties remain the same. Right, carry on.
MR HARKOO: Thank you Mr Chairman, Members of the Amnesty Committee. Firstly I want to thank you for the indulgence that you granted me earlier. The applicant in this matter is Dumisane Eugene Nkabinde. He applies for the amnesty of the killing of one Nzinzi Francis Shabane. The incident occurred on the 30th March 1991. The applicant will state that at the time, he was a member of a political organisation, being the ANC and that the killing of the deceased at the time, was of a political nature and in furtherance of a political party.
He will allege that the deceased was a member of a gang, being the Kapanaz gang, which was aligned with the IFP at that time, being the opposing political party and that shortly prior to the incident in question, that the deceased has in fact collaborated with the KwaZulu police and the IFP and killed two of it's members. That is briefly the evidence that I intend to lead. I will now ask Mr Nkabinde to address you.
DUMISANE EUGENE NKABINDE: (sworn states)
CHAIRPERSON: Before we go on, I would just like to raise one question. There's one person in the hall. Have the victims been notified of the hearing?
MS MTANGA: Chairperson, the victims could not be located at the address that they were known to be, but a press announcement on Radio Zulu and also other papers that are circulating in Natal, where they had been asked to contact the Truth Commission for the hearing and that has not yet happened.
MR LAX: Sorry, just when was the press announcement done?
MS MTANGA: There is not date on the notice that I was given, Chairperson, but I think it was more than 7 days ago.
EXAMINATION BY MR HARKOO: Mr Nkabinde, could you tell the Members of the Amnesty Committee, whether at the time of the incident, were you a member of a political party?
MR NKABINDE: Yes, I was.
MR HARKOO: And which political party was this?
MR NKABINDE: ANC.
MR HARKOO: Were you a registered member, or a paid-up member or a card carrying member of this party?
MR NKABINDE: I had in my possession at that time, a Youth League Membership card.
MR HARKOO: Would you tell the Members of the Committee briefly the circumstances and the background relating to the incident, being the killing of the deceased Shabane, at the time of the incident for which you were charged?
MR NKABINDE: We were not in good relations with the Kapanaz. The Kapanaz were harassing and torturing the community. They associated themselves with the KwaZulu police and the IFP and their common enemy was to kill the comrades, the ANC comrades.
MR HARKOO: Could you tell us briefly of the incident that you've mentioned in your statement that occurred shortly prior to the killing of the deceased, that is the killing of Shabane? Could you tell us what in particular was it that related, or that prompted you to carry out this act?
MR NKABINDE: We were at Thulane Kehla Gumede's place. A certain car arrived and some people got off that car and started shooting in that house where we were and two of our comrades died there. Then we met as comrades, we looked at this car. We wanted to see as to where the car was going. We saw the car parked at Msizi's place. Then we proceeded to Msizi's place. We started fighting with them. That's how he was killed.
MR LAX: Sorry, if I may interpose. Who's Msizi?
MR NKABINDE: It's the deceased.
MR HARKOO: Thank you. You mentioned that you were at Gumede's house, was Gumede accused number 2 in the trial at which you were charged? Was Gumede cited?
MR NKABINDE: Yes, he was accused as well.
MR HARKOO: And those two comrades you said that were killed, were they members of your organisation?
MR NKABINDE: Yes.
MR HARKOO: Now, you say that you went to Msizi's. You found that the vehicle went to Msizi's house. From you knowledge was Msizi part of that group of persons who were instrumental in the death of your two comrades as you've mentioned?
MR NKABINDE: Yes, he was also in that car.
MR HARKOO: Now those that accompanied you in the killing of Msizi Shabane, were they all members of your organisation?
MR NKABINDE: Yes, they were.
MR HARKOO: So will you confirm then that your actions as such were firstly to promote the organisation and also as a revenge against those that you felt were your enemies?
MR NKABINDE: Yes.
MR HARKOO: In the light of the fact that we now have a fairly stable political climate, have you now overcome this kind of animosity against your political opponents? Shall I repeat that, Mr Nkabinde?
MR NKABINDE: Yes.
MR HARKOO: Sorry. In the light of the fact that we now have a fairly stable political climate, have you overcome your animosity, or this feeling of revenge, against your political opponents?
MR NKABINDE: Yes.
MR HARKOO: Are you now, do you now show remorse for your actions as you have done?
MR NKABINDE: Yes.
MR HARKOO: Mr Chairperson, that is briefly the evidence of the applicant. I wish to further then address the Committee Members in regard to the facts, if need be, that have taken place during the course of the trial and reference to the fact that the criminal action itself, was politically motivated, or in relation to a political nature. If the Committee so wishes.
NO FURTHER QUESTIONS BY MR HARKOO
CHAIRPERSON: You're going to address us on that you say.
MR HARKOO: Yes.
CHAIRPERSON: Well, let's finish this applicant's evidence first.
MS MTANGA: Thank you Chairperson.
CROSS-EXAMINATION BY MS MTANGA: Mr Nkabinde, in your application you state that you were a marshall, that is on page 1 of your application, but you don't indicate you were a marshall of which organisation.
MR HARKOO: You may answer that question Mr Nkabinde.
MS MTANGA: Can you tell us what organisation were you a marshall of?
MR NKABINDE: ANC.
MS MTANGA: You also indicate that at the time you were attacked by the people in the vehicle that you have indicated in your evidence, you were with other comrades at Gumede's place. Were you a unit of people working together, or were you just attacked whilst sitting there? Were you part of an ANC unit or not?
MR NKABINDE: I knew myself as a comrade because I had a membership card. Others, I don't know whether they had membership cards or not, but they used to attend meetings with us.
MR LAX: You haven't really understood the question. What you're being asked is, on that night when you were there at that place, were you just relaxing at Gumede's place, or were you on duty, were you part of an SDU of some description, were you busy with some activities involving the ANC Youth League, what was going on? That's really the nature of the question. Have I understood you correctly? Do you understand the question?
MR NKABINDE: Yes, I do.
MR LAX: Please answer.
MR NKABINDE: We were just relaxing at Gumede's place and then the car came and they started attacking us, but we were not on duty.
MS MTANGA: As a marshall, or as an ANC, what duties were you involved in? What political activities were you involved in?
MR NKABINDE: Usually, whenever there were meetings, we were the ones who were guarding the comrades and whenever there will be a march or marches, we will go before and check the place. Even the meetings, we will be guarding the people who are attending the meeting.
MS MTANGA: My understanding of your affidavit, that is the affidavit on page 4, the evidence there points to the fact that when you were attacked by this vehicle, you didn't see the people inside the vehicle, but you watched them follow it to the house of the Shabane's, isn't that correct? That's my understanding of what you've said in your affidavit.
MR NKABINDE: Yes, we didn't see all the people inside the car, but we watched the car and we saw it going straight to Shabane's place and that's when we saw them getting off that car and we ran towards Shabane's place and we started attacking them as well.
MS MTANGA: But in your testimony here today, you indicated that you had seen Msizi in that car, he was also in that car, that's what you said. Was that correct, when you say you saw Msizi in that car? Did you see Msizi in that car?
MR NKABINDE: We saw the car parking at Msizi's place and we saw people alighted the car and we ran towards Msizi's place, that's when we started attacking because the car stopped there and they alighted there.
MS MTANGA: Will I be correct to conclude that you didn't see who the people were who had alighted from the car?
MR NKABINDE: Yes, I can agree with you.
MS MTANGA: Yes, that's the view I would agree with because on page 27 of our bundle, it's indicated in the judgment that the person who had been away and who arrived late at home, was Lucky Shabane, not Msizi Shabane and that would be more in line with the evidence that's contained in the judgment. You also state that, in your evidence, that, - page 27 of the bundle, Chairperson, in the summary of what Lucky Shabane testified to, the bottom after, that will be line 22 up to the first few lines of page 28. You have also given evidence in your affidavit that Msizi Shabane was a member of the Kapanaz gang, the gang that was aligned to the KwaZulu Police, who were also aligned to the IFP that was fighting you. Can you just give some background as to what used to take place between you and this Kapanaz gang. What incidents had taken place, which had made you rivals at that time?
MR NKABINDE: The reason we were enemies with the Kapanaz, they usually came to our meetings and disturbed the meetings and interrupted everything and also they used to attack communities. We used to reprimand them on these things and it led to the conflict and we became enemies and later the KwaZulu police took them and they started associating themselves with the KwaZulu police and the IFP and they started attacking us.
MS MTANGA: Also in your evidence you've indicated that Msizi Shabane was a member of this gang. Can you state with certainty that Msizi was such a member of this gang, or you assume because the car had stopped at their house, that they were part of this gang that had attacked you?
MR NKABINDE: I know him as a member of Kapanaz, because he was always with the Kapanaz and we used to see them in the township.
CHAIRPERSON: You see, you made an affidavit, didn't you, on the 14th of July 1998 at Westville prison. Do you remember?
MR NKABINDE: On the 14th of July which year?
CHAIRPERSON: ...(indistinct - mike not on)
INTERPRETER: The speaker's mike is not on.
CHAIRPERSON: 1998. Somebody from the Truth and Reconciliation Commission came and saw you. A Mr Mbatha.
MR NKABINDE: Yes.
CHAIRPERSON: In that affidavit at page 4 of the papers, in the 7th paragraph, you said
"The reason why we decided to attack the victim was because they were opposing us and had formed their own group of Kapanaz. The Kapanaz were a group of vagrants and criminals who were breaking into the houses and stealing. They were not associating themselves with political organisations."
Was what you said there the truth?
MR NKABINDE: Yes.
CHAIRPERSON: Didn't they associate themselves with political organisations?
MR NKABINDE: They were our enemies. Later the KwaZulu police associated themselves with them and they KwaZulu police were associated with the IFP and therefore we were the common enemy.
CHAIRPERSON: So they were your enemies before they associated with the KwaZulu police?
MR LAX: Are you speaking to him, Ms Interpreter?
INTERPRETER: Yes.
MR LAX: Sorry, we just wanted to be clear, because there was nothing happening.
MR NKABINDE: Would you please repeat your question?
CHAIRPERSON: Were the Kapanaz your enemies before they associated, or before the KwaZulu police associated with them?
MR NKABINDE: Yes.
CHAIRPERSON: Well why were they your enemies then?
MR NKABINDE: They wanted to harass the community and to do whatever they pleased to the community, therefore we as comrades, we didn't agree with that.
CHAIRPERSON: So it was to preserve peace in the community?
MR NKABINDE: Yes.
MS MTANGA: Yes, Chairperson, I was finished.
NO FURTHER QUESTIONS BY MS MTANGA
MR LAX: Just one thing to be clear here. In the same affidavit at page 4 you say that and I'll read from the penultimate paragraph on that page
"The attackers were brought in by a vehicle which left them and drove into their area. We watched it. After the shooting they ran away into the house after alighting from the vehicle."
Now, you said that we then followed immediately and attacked them. Do I understand this correctly that the only link you really have between the Shabanes and this attack, is that the vehicle drove from the area where they attacked the house at which you were, towards the Shabane's home and that you saw people at a distance getting out of the vehicle and running towards the Shabane's house? Have I understood this affidavit correctly?
MR NKABINDE: What I can say is that this car came to Gumede's place and they attacked us and then they went back to the car. They boarded the car and the car drove straight to Shabane's place. That's where they alighted and we were still watching the car, because we saw the car after they attacked us. We immediately ran to Shabane's place. When we got there, we saw them, that these were the people who just arrived and then the others ran away and Msizi Shabane was there, then we attacked him.
MR LAX: You see the reason I'm asking this is that both these Shabane boys, Msizi was killed, but the other brother was injured and assaulted and he managed to escape, that is Lucky Shabane, but both of them were naked, they had already undressed, they were ready - the one was asleep and the one was about to go to bed. Isn't that so?
MR NKABINDE: When we arrived there, we found them getting ready, they were about to go to sleep, but they'd just arrived. One could tell that they'd just arrived, because there was no-one who was asleep at that time.
MR LAX: They may have woken up by that stage, but they were both undressed, that was the point I was getting at.
MS MTANGA: Chairperson, if I may be of assistance, on page 28 it is indicated that one of them had just arrived at home at that time.
MR LAX: I'm not disputing that. That's not the issue here. We've already covered that ground anyway. The point is that Msizi was undressed and his brother was undressed. Do you remember that, or don't you remember that?
MR NKABINDE: That Msizi had been undressed and getting ready to sleep, I don't remember that thing quite well, but what I remember is that he was dressed.
MR LAX: You see his brother's evidence, which wasn't put in dispute at all anywhere, was that Msizi was asleep when he got home and he had just got home and Msizi woke up to let him in and then the brother's evidence, Lucky, was that he himself was undressed. He escaped naked and all of this appears in the judgment. I won't refer you to the specific pages, but it's all there. The simple point I'm making is that Msizi could not have participated in the attack on you. His brother may well have. Do you understand?
MR NKABINDE: Yes, I do understand.
MR LAX: Of course because of how and do I understand this correctly - because of how you associated the Shabane's with the Kapanaz gang, you made the assumption that they were all involved in the attack?
MR NKABINDE: Yes.
MR LAX: Thanks Chairperson.
CHAIRPERSON: It appears that the deceased was taken out of his bedroom and was then stabbed numerous times.
MR NKABINDE: Yes.
CHAIRPERSON: That's correct, is it?
MR LAX: Just one question, what did you want to do with the paraffin?
MR NKABINDE: We wanted to burn his body.
MR LAX: Just one question. Looking back now from where we sit today. How do you feel about this? Is there anything you would want to say to the family if they were here?
MR NKABINDE: Yes, if the family was present, I was going to apologise to them about what happened.
CHAIRPERSON: Any re-examination?
MR HARKOO: Yes, thank you, just one or two.
MR LAX: Sorry before you go, just one last thing. Sorry, Chairperson. On page 29 of the judgment at about line 18, the judge who presided in the matter said this, he said that
"Lucky told the court that the problem between you was that his family had refused to join the ANC."
Did you try and recruit them to become comrades?
MR NKABINDE: No, we never discussed anything like that with them. What we used to do, we would announce to the community that we will have meetings, but we never forced them to join the ANC.
MR LAX: But they didn't participate in the ANC activities?
MR NKABINDE: Yes.
MR LAX: Thanks Chairperson.
RE-EXAMINATION BY MR HARKOO: Thank you Mr Chairperson. Whilst we're on that point, what was your belief, did you believe that they had in fact been members of any of the rival or opposite political parties at the time?
MR NKABINDE: Yes.
MR HARKOO: And I take it that was, as you've mentioned in your affidavit, the IFP?
MR NKABINDE: Yes.
MR HARKOO: And the ...(intervention)
CHAIRPERSON: This is all mentioned in the judgment, isn't it? Where the judge said
"As already indicated the deceased was and yourselves were in opposite camps. There's no doubt that all three of you were influenced by the prevailing circumstances in the community."
MR HARKOO: Yes, thank you, Mr Chairperson. And just one more point, the attack that was brought upon against members or upon you at the time prior to the killing of Msizi, what was your understanding of that attack? Would you consider that as being a merely ordinary criminal attack, or do you think it was an attack by the opposite party?
MR NKABINDE: I saw it as a political violence or attack, because they told us many times that they didn't want comrades.
MR HARKOO: Thank you, Mr Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR HARKOO
CHAIRPERSON: Right. Any further evidence?
MR HARKOO: I have no further evidence at this stage.
MS MTANGA: No further evidence, Chairperson.
CHAIRPERSON: ...(indistinct - mike not on)
WITNESS EXCUSED
MR HARKOO: That's fine, that's fine with me. I am ready to address, but if it's tea time, I'm quite amenable to having a short adjournment.
MS MTANGA: Yes, Chairperson, adjourning will be fine with me.
CHAIRPERSON: The people we so often tend to forget, who sit in a box down there, I'm sure would like a short adjournment now. We will take a short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: I understand that nobody wishes to call any further evidence, or put any further documents or information before us. We now come to the question of argument. I take it that the applicant will continue asking for amnesty and will refer us to the findings made at his trial where the court held there was a political difference between them that motivated them to behave as they did.
MR HARKOO: That is correct, Chairperson. May I proceed? Thank you.
MR HARKOO IN ARGUMENT: Mr Chairperson and Members of the Amnesty Committee, it is my submission firstly in so far as the evidence that was led at this hearing, that the applicant was open, he was honest and he was truthful.
In reference to the matter itself and his trial, there has been a number of instances where it has been indicated that the whole action was politically motivated. I refer firstly, the Committee to page 22, where this was an address by the counsel for the defendants, the accused in the matter at that stage and at about line 5 where it states:
"One reason which might be advanced why the witness points out the accused as being the culprits of the day, is that he had conceded that they were on different sides. The one being pro one party, political and the other being against or pro other political party."
That was the address at the time by the counsel for the accused in the matter. Then again on page 29, this is part of the judgment by the magistrate, where he again makes reference, if you look just above paragraph 20 or just below paragraph 15, where the magistrate mentioned"
"He is not aware of any particular problem between his family and the families of the accused, but did make reference to the fact that his family had refused to join the ANC."
There the magistrate referred to the State witness, being the views or the reasons that were advanced by the deceased's brother in that case, the deceased's brother being Lucky Shabane, the State witness.
Page 29, it would be around line 16 and then going down up to line 20. The magistrate himself in his judgement makes reference to the view that was advanced by the witness, by the State witness itself.
Then again on page 30, just after line 20 at the bottom, the magistrate in his judgment says:
"The police came and took his body, but according to her, the reasons for the attack were that her sons did not join the group whom the three accused belonged to."
It was referring to the evidence that was given by the mother of the deceased in that case and he referred to the reason that was advanced by the mother of the deceased as to what she believed at the time.
Again on page 41 at about line 4, here it is reference to accused number 1 and in his judgment the magistrate says:
"He and accused 2 and 3 attend the same meetings of the ANC, also Zizali Nthuli."
I pointed this out because there's reference to meetings previously and it would, it is clear that the reference to meetings actually meant political meetings.
Again at page 42, just above line 15, should be around line 13, the magistrate in his judgment states:
"He then indicated on further questions in this regard, Lucky Shabane said so because he hates the comrades."
Here comrades meaning those members of the ANC.
Then on page 43, here it is a reference to accused number 2 in that hearing, where the magistrate in his judgement states:
"On the day of the incident, he was not at the deceased's house"
sorry on line 4, it starts on line 4,
"on the day of the incident he was not at the deceased's house and he does not belong to any political organisation."
It was part of his judgment where he was referring to the accused number two's defence at that point.
MR LAX: Was his alibi.
MR HARKOO: Yes.
MR LAX: Of course that doesn't help us here because he denied his involvement. We now know from your client that in fact he was involved.
MR HARKOO: That is true, but we must understand that at that point in time, the denial obviously, it stems from the fact that the accused basically wanted to avoid conviction.
MR LAX: No absolutely. The point I'm trying to make is a simple one and that is that whatever that accused said at the time about his political, where he may or may not have been on that day, is irrelevant now because we know it's a lie.
MR HARKOO: As the Committee pleases. Again on page 52, it's reference to accused number 1 and the magistrate in his judgment refers to meetings, as I've mentioned earlier, being political meetings, just below line 10 the magistrate says
"Significant from his evidence is further that according to him accused 2 and 3 did attend meetings with him and that the last meeting was in February 1991 at Krokus School."
The significance of that is that accused 2 and 3 were also part of this group that went down and it indicates that they all belonged to one organisation.
CHAIRPERSON: Well, it's not in dispute, is it, that they went there as a group which had been attacked, that this was in retaliation for an armed attack on them and they laboured under the impression that all the people to be found in the house were their attackers and unfortunately for the deceased, he had just woken up from a sleep, he wasn't agile enough to run away as his brother did and it appears probably, from what we have heard in the evidence of your client today and from what appears from the record, that his brother had been one of those who had taken part, because he arrived 5 minutes earlier.
MR HARKOO: Yes, thank you. I was merely attempting to highlight the issues raised at the trial itself, that the trial referred to matters of a political nature.
MR LAX: You can rest assured we've taken note of all of these instances.
MR HARKOO: Thank you. Then I will proceed to address the issues that have arisen since. As it was rightly pointed out by the Chairperson that the accused, or that the applicant, accepted the fact that it, or that it was part of a political group that was involved, I might also mention that in his evidence here today, the applicant was honest in the sense that he conceded that the deceased himself may not have been the person involved in the actual killing that took place previously but his action was that - he in fact believed that the deceased or members of that family were part of that group and his entire action was a clear one of trying to get revenge as to what happened previously and in so doing, in attempting to promote his own organisation.
CHAIRPERSON: Well revenge, it was perhaps revenge, but wasn't it equally well to show that you could not do that, commit acts of that nature safely? It was to promote his own organisation, to show that you couldn't casually come and kill members of his organisation, that there would be retribution, repercussions.
MR HARKOO: Yes, precisely so. Thank you.
It was also clear, as the Chairperson pointed out as well, that the magistrate in his finding, went on to state, in referring to a particular case where he referred to the circumstances that prevailed and the state of unrest that took place in the community. It is my submission therefore that the applicant has shown here that the trial that was held, was clearly one of a political nature. The applicant here has also shown that the situation has now been eased, he has apologised, as it was put forward to him by Members of the Committee and he's now shown remorse and I accordingly ask that his application for amnesty be granted. Thank you.
MS MTANGA: Chairperson, I won't be making any submissions. I'd like to leave the matter in your hands.
NO ARGUMENT BY MS MTANGA
CHAIRPERSON: ...(indistinct mike not on) ...to those hearings?
MS MTANGA: That is so, Chairperson.
CHAIRPERSON: ...(mike not on)
MS MTANGA: 9.30 will be fine Chairperson.
CHAIRPERSON: 9.30 tomorrow morning.
COMMITTEE ADJOURNS
