CHAIRPERSON: ... and then we will follow it with the application of Mr Ntuli. Mr Mchunu?
MR MCHUNU IN ARGUMENT: Thank you Mr Chairman and members of the Committee, the applicant herein seeks amnesty in respect of acts committed between the dates in 1990 to 1993.
I will list the incidents as follows: An aborted attempt to assassinate Mr Matthew Phosa, which goes only as far as a conspiracy which never went beyond just a conspiracy. Two, an assault of Mr Cele, a school teacher. Three, an attack on young men at Nombete. Four, an attack on plus minus seven males at Mona Lisa. Five, an attack on taxi owner which can only be said to be attempted murder, and a killing of an unknown person at Songombo.
The first incident or act which I have referred to as an act of attempt to murder or to assassinate Mr Matthew Phosa, on that act, it does appear very, very clearly from the facts, that the applicant had during his time in 1990 whilst he was in Barberton town prison, associated, or had associated himself with the IFP and had been working in close association with prison warders who had proclaimed themselves to be members of the AWB.
He therefore, in the performance of this act which came to nothing at the end, acted within the direct instructions of those he held in high esteem. As I said who proclaimed themselves to be members of the AWB, without expectation of any gain whatsoever, despite the fact that there is evidence to the effect that there was a reward which was never explained, what type of reward it was.
But be that as it may, the applicant reconciled himself with those instructions, and clearly the applicant in his evidence too, did state quite categorically that in answer to a number of questions posed to him, whether he would have done, he would have committed the act, he would have killed Mr Phosa, his answer was in the affirmative, whether or not there was any reward, placed on the head of Mr Matthew Phosa.
This Chairperson, I believe is also covered by the provisions of Section 20(3)(e), of the Act, in that those are acts committed under direct instructions. If I may just read the provisions of the Act quickly, the relevant provisions of the Act - whether the act, omission or offence was committed in the execution of an order of or on behalf of, or with the approval of the organisation, institution, liberation movement or body of which the person who committed the act, was a member, an agent or a supporter.
This is supposed to define an act associated with a political objective. Without any further waste of time Chairperson, I will go straight to the next act, that is the next incident.
The incident relating to the assault on Mr Cele, the school teacher. It does appear also from the evidence of the applicant, that the applicant on joining the IFP when he was at Ndwedwe, became a member of the IFP, not only became a member of the IFP, but also became a bodyguard of Mr Mfayela.
When he saw a fight breaking out between Mr Mfayela and Mr Cele, he saw it fit as a bodyguard, to execute his duties, to fight against a person who was fighting against his leader, and two, he was also acting under the direct instructions of Mr Mfayela to assault Mr Cele.
Incident number three and four, are similar. They are quite similar in that in both incidents, the applicant and Mr Mfayela were in a car and that includes also incident number six as well. I will refer to them as follows: Incident number three and four relates to the incident of the shooting of men found in the street, and incident number six, relates to the killing of an unknown person, also found in the street.
Both, or all these three incidents, it does appear that the applicant was in the company of a superior or of other people he regarded as his own comrades, and in execution of a mission which was tabled or which was agreed upon between the members or was the instructions, the direct instructions of the leader.
I believe that this is also covered by the provisions which I have already elaborated on, which I have already covered, which I have already read before this Committee.
Incident number five, that is the assault, that is the attack on the taxi owner, which I have said, can only be said to be an attempted murder, because it also has appeared that Mr Cele died subsequently, as a result of something else, other than ...
MR LAX: You mean Mr Gumedi, sorry? You have said Cele?
CHAIRPERSON: Mr Gumedi yes. That was put on that he died of natural causes, not as a direct result of any injuries that he may have sustained in the attack described by the applicant.
MR MCHUNU: I am highly indebted for the correction, thank you very much. Mr Gumedi, actually yes. The taxi owner, Mr Gumedi, was seen by the applicant and his comrades at that time, as a person who was working in close association with the members of an enemy organisation.
In fact he was labelled at that time, as a transporter of comrades, of people belonging to the ANC, and therefore he was as the applicant has also elaborated in the background, that this was also agreed upon in a discussion as one of the people targeted to be killed, to be eliminated.
It is clear from the evidence of the applicant in all these incidents, particularly in the incidents relating to his stay at Ndwedwe and the acts committed during that time, that the applicant did not act for any specific gain. He has also explained that at many instances, or in instances which can be counted to two or three, he did receive payment, but which was only, which only served as pocket money.
CHAIRPERSON: Yes, I think it is from the evidence of the applicant in any event, the payment that he received was more in the form of subsistence payment rather than reward for specific jobs done.
MR MCHUNU: Thank you very much. It is on that basis Mr Chairman, and members of the Committee, that I believe that the applicant has been able to satisfy the requirements of the Act in that, the basic requirements of the Act, in that (1) the applicant did indeed act for a political objective, (2) that the applicant has made a full disclosure of all relevant acts. Let me just explain just briefly to that.
The provisions of Section 20(1)(b) and (c), (c) in particular, states that the applicant has made a full disclosure of all relevant facts, and all relevant facts here means relevant, acts relevant to his application. Any other acts, would in my mind be peripheral, it would no longer really matter, whether or not he did disclose them, but in any event, the applicant did state during his testimony that, he is willing to disclose any other acts, but then he cannot because his application is grounded on the acts which he has disclosed before this Commission.
On the basis of that Chairperson, I ask that the applicant be granted amnesty.
MR LAX: Mr Mchunu, just so that I can be clear in my own mind. You have mentioned five specific incidents, and you have described them as follows: the aborted attempt to assassinate Mr Phosa.
MR MCHUNU: Six actually.
MR LAX: Correct. The assault of Mr Cele, the young men at Nombete, Mona Lisa, that is three and four, the attack on the taxi driver and the killing of this unknown person.
In your client's evidence, he dealt with the conspiracy to kill Cele subsequently. Is he not applying for amnesty for that and having been part of that?
MR MCHUNU: Chairperson, I think that was, I believe, just an omission on my part. That was also explained in his evidence, that there was such a conspiracy. Even though he did not participate in the act or the murder of Mr Cele, at the end, but it also did appear that Mr Cele was finally killed, he was finally murdered.
But he also did participate in the act of conspiring against Mr Cele.
MR LAX: The other aspect that I was just wanting you to clear up for me is, in relation to the taxi driver, there was an attempted robbery of that vehicle and your address hasn't covered that at all.
MR MCHUNU: The attempted robbery, thank you for that Chairperson ...
CHAIRPERSON: One could even call it a robbery really, because he did get control of the vehicle, although not for a long time.
MR MCHUNU: Thank you. Thank you for that Chairperson and members of the Committee. The robbery actually or the attempt to do so, by the applicant and other members, was also in the furtherance of their objectives, in that - of their main objective actually - in that it was meant to take them to a specific point, where they would get a get away car. They were using this vehicle, the taxi, to run away from the scene.
Unfortunately, it capsized before it could get anywhere, and (2) there is another point which I also need to mention. I believe that the member of the Committee, wants to get straight into it, that is the robbery of cash which was put to the applicant by my learned friend.
The applicant has also explained in his evidence, that he knows nothing about this, but he has also not excluded the possibility of this having happened. In a situation like that, and in many instances, it is not uncommon to find others who would take that opportunity, who would be opportunistic enough to in the process of executing any particular mission, to further their own personal objectives in robbing and I believe that this is the case here.
The applicant does not know of that incident of the taking of cash, but he does not exclude that possibility because they were many.
CHAIRPERSON: And it wasn't part of the original plan or intention to steal cash?
MR MCHUNU: That is correct Mr Chairperson.
CHAIRPERSON: Thank you Mr Mchunu. Mr Falconer, are you going to address us.
MR FALCONER: I believe so, thank you Mr Chairman.
CHAIRPERSON: Thank you.
MR FALCONER IN ARGUMENT: Mr Chairman, with your leave, I would like to open with the preliminary matter which is not addressed to the merits of the application. It does however relate to what in my submission is a grave injustice which has emanated from these proceedings, and I believe that it is incumbent upon me to put it before yourself.
Mr Chairman, as you aware part of the statutory objects of the Truth and Reconciliation Commission is exactly to achieve as true a picture as possible, of the past unfortunate history of this country.
Ultimately to hopefully end up with some form of reconciliation. It is for that very purpose that my understanding is the Truth and Reconciliation Commission is open to the public and to the media, the mass media, to enable the country to benefit from this process. Only under very extreme circumstances will the public and the media be circumvented from attending.
Mr Chairman, it has been brought to my attention that following the application proceedings in this matter the other day, various articles were carried in amongst others the Daily News publication on the 21st of October, entitled politician named as hit-squad boss, IFP hit-man confesses. I am also given to understand that there have been similar publications in the Mercury and also that there have been broadcasts to this effect on the SABC.
Regrettably Mr Chairman, what is contained in all of these broadcasts is an implication of someone who was never ever mentioned, by the applicant in his papers, or in his viva voce evidence before this Commission. Mr Senzo Mfayela, a member of Parliament in Cape Town, has been unlawfully implicated in the so-called alleged hit squad activities, and it is also suggested that he "was a killer" and it goes on to state that he essentially had hand in giving instructions which resulted in the deaths of persons in Ndwedwe.
As you are aware Mr Chairman, Mr Dinkiziwe Mfayela an MPP of the Provincial Legislature of kwaZulu Natal, was implicated and so too, was a Mr Semo Mfayela. No evidence whatsoever has implicated Mr Senzo Mfayela.
I have been instructed by Mr Senzo Mfayela, to place his feelings before you in the hope that, and I implore you Mr Chairman, if there is a means at your disposal, to please urge the mass media, to be more responsible in the manner in which it reports.
We all know the law relating to public liability in respect of the law of deformation. It is for that very reason that we've got very strict doctrines that apply. In most cases, the damage that has been done, is irreparable. Once there is a slur made on a person's name, it is very difficult to repair that.
In the circumstances Mr Chairman, I bring this to your attention under instructions of my client, and he obviously has remedies at civil law, which he will pursue.
CHAIRPERSON: Thank you, sorry I interrupted you.
MR FALCONER: On that point, I am finished, Mr Chairman.
CHAIRPERSON: Thank you Mr Falconer, yes the evidence before us related to Mr Dinkiziwe Mfayela and the son, Senzo Mfayela. I certainly can't recall Mr Gwamanda mentioning Mr Senzo Mfayela and we certainly don't know how the name of Mr Senzo Mfayela came to appear in the reports.
I agree with you that there is a huge responsibility on the media to report accurately in regard to such matter, particularly matters of such a sensitive and important nature. Thank you.
MR FALCONER: I thank you Mr Chairman. If I may now address to proceed you briefly in respect of the merits of this application.
Mr Chairman, I commence by stating that I believe the applicant is faced with severe difficulties in discharging the requirements of the Act and primarily I would submit that his first difficulty is discharging the requirement of identifying a clear political motive for his actions.
If we look firstly at the allegations relating to Barberton and the alleged plot to assassinate Premier Matthew Phosa. I know that my colleagues to my right, are going to deal more extensively with this issue, but just to make an observation.
On the applicant's evidence, during or about the time that he left school in 1976, he claims to have been affiliated to if I understood him correctly, some form of liberation movement, in the country.
We now have a quantum leap, where at Barberton, he, on his evidence, is coerced into collaborating with members of the AWB, to ultimately carry out this act.
Unfortunately, coercion does not constitute a political motive. On that basis alone, I submit that his application falls down.
Mr Chairman, if one also then has regard to the evidence relating to the alleged activities in Ndwedwe, I submit that that evidence has got to be considered within the context of the other evidence of the applicant which was extracted under cross-examination, namely that and it is a very sad picture, since the tender age of 15, the applicant has been involved extensively in crime, serious crime, crimes relating to armed robbery amongst others, and sadly he has spent most of his adult life in custody.
It was established that there were eight previous convictions on the record, which we were furnished by the Commission, and in addition to that, besides all of the other activities, there are at least two incidents which would appear to be unrelated to politics, namely the pension robbery which was planned and in addition, the other robbery for which he is presently incarcerated.
It is also interesting to note Mr Chairman, that his release during March 1993, he finds on his evidence, his way to Ndwedwe, and then during or about December on his evidence if I recall correctly, the 6th of December, he is arrested for further serious crimes.
It seems that these crimes which took place on his evidence, took place within a very short space of time during or about November, and the crimes which he claims were politically motivated and which he claims, were carried out under the instruction of certain of my clients, were interspersed by crimes which he committed clearly to obtain pecuniary benefit for himself.
Mr Chairman, if we look briefly at the matter pertaining to the murder of the taxi owner, Mr Gumedi, well the attack on him I should say, not the murder, it is clear that their intention was to make off with one of the taxi owner's motor vehicles.
It is also, evidence has been put before us by Mr Gumedi's son, that money was stolen during that incident. I would submit that it seems to be highly improbable that in a so-called political attack, people are going to go there with a motive of stealing to put it more stronger, property. I would submit that the probabilities point very heavily in the direction that that attack also forms part of the other criminal activities, that the applicant refers to where he was going to obtain pecuniary benefit.
He also in his evidence stated that it was very difficult to not execute the orders in Ndwedwe, given the fact that if you didn't do so, you would fall foul of Mr Mfayela and essentially you were obliged to obey his command. There is absolutely no evidence that he was forced to remain in Ndwedwe. There is absolutely no evidence that he was forced and coerced into conducting these crimes.
He on his own admission, is now an ANC member and prior to this, he was also an ANC member. I submit that it is really pushing the probabilities to the extreme to try and suggest that he through a political motive, on his evidence, was involved in these activities, given those particular aspects.
Getting back to the monetary aspect, it was clear and with respect to my learned colleague for the applicant, it was clearly established Mr Chairman, that the applicant understood the reward for the attack on Mr Matthew Phosa, would be monetary. He even said in answer to one of my questions, what other form of reward could there possibly be?
I would say in submission Mr Chairman, that the probabilities point overwhelmingly in the direction of the fact that his actions were motivated for pecuniary gain whereby he would achieve and further himself in that regard. I would say he falls down in establishing a political motive.
Mr Chairman, in conclusion also, in passing mention that the applicant's evidence with respect, was far from adequate and given the fact that the papers which he submitted in support of his application, together with his viva voce evidence before us, does not provide a full disclosure as would be required, particularly in respect of establishing his alleged political motivation.
Thank you Mr Chairman.
CHAIRPERSON: Thank you Mr Falconer. Mr Nel?
MR NEL IN ARGUMENT: Thank you Mr Chairperson. Members of the Committee, if I may quote to you from the preamble of the Act, the functions, one of the functions of this Commission is to establish the truth in relation to past events, as well as the motives for the circumstances in which gross violations of human rights, have occurred, and to make the findings known in order to prevent a repetition of such acts in the future.
Now, I submit with respect that before the amnesty application of Mr Gwamanda could be considered, this Commission must make a decision whether he is to be believed, in what he is saying.
In order to believe that Mr Gwamanda has told this Commission the truth during his evidence, the Commission must believe certain things like that the AWB and the IFP has worked hand in hand, it must believe that the AWB planned and plotted an assassination on Mr Matthew Phosa and that the AWB in fact, wanted to kill Mr Phosa in 1993.
It must also believe that prison warders would train a man with an atrocious criminal record in the handling of AK47's, R1 rifles and various assault weapons, it must believe that the AWB will use somebody to assassinate Mr Phosa who has never even seen Mr Phosa, who does not even know from his own evidence, at the time that he went to Nelspruit, what Mr Phosa looked like.
It must also believe that an assassination of this nature is planned without giving the assassin any concrete instructions. It must believe that an assassination is going to take place in the middle of broad daylight, where the members of the so-called hit squad or planners, are clad in full AWB uniform, there is a congregation of 4 x 4's planning this assassination in the middle of Nelspruit, in front of the post office.
MR LAX: Sorry Mr Nel, that wasn't the evidence. The evidence was that they were going to go to another place where Mr Phosa would be addressing some sort of a gathering, and it would happen there, but anyway.
CHAIRPERSON: Yes, I think Lebisi or something.
MR NEL: Be that as it may, thank you Mr Chairperson, it must also believe that Lieutenant Venter who is today the Head of the Barberton prison, would way back in 1991 if my memory serves me correct, way back in 1992, February 20th, already fabricate an official document where the applicant was charged for possession for dagga. That is what this Commission must believe before his amnesty application can be considered.
Now, turning to the Act, the applicant must satisfy this Commission that his offences relates to acts associated with a political objective. Now, from the applicant's own evidence, with respect, I submit he did not have any political objective in taking part in planning the assassination of Mr Phosa.
Even if it is to believe that there was such a plot, even if the AWB and these members implicated here, were involved in an act which they have strenuously denied, then the applicant himself says that he did this for a reward and he did not have any political motive in taking part in such a plot to assassinate Mr Phosa.
It is mainly on that basis, that I must object to Mr Gwamanda getting amnesty for what he has applied for. That is my submissions.
CHAIRPERSON: Thank you Mr Nel. Mr Mukadam?
MR MUKADAM IN ARGUMENT: Thank you Mr Chairman and members of the Committee. Mr Chairman, my instructions are not to oppose the application of amnesty by Mr Gwamanda. I submit that we are satisfied in so far as his association with a plot to assassinate Mr Phosa, the surrounding facts, he has disclosed to this Committee.
We submit further that there was no reason for him to make the application, he was not standing trial for it. There was no obligation, known to anybody that he would be indicted of a crime of conspiracy to murder. He has come to this Committee we believe because he wanted to speak the truth.
The role Mr Chairman, of the Truth and Reconciliation Commission, is a difficult one in that truth in itself, is never an easy commodity to handle. In speaking the truth, allegations that may appear to be far fetched, are made. Consideration Mr Chairman, must be given to the time that we have come through in this country.
Hopefully the truth and sometimes it may appear far fetched, would be the catalyst to ensure that those acts are not repeated again.
Our submission Mr Chairman and members of the Committee, is that at the time of the conspiracy to assassinate Mr Phosa, Mr Gwamanda had associated himself with the objective of that conspiracy, and that was a political objective.
He was recruited by a person with political affiliations, Mr Elijah Mahlaba, who says that he was part of an organisation in the Mpumalanga province where Mr Enoch Mabusa was a member. He also was recruited and told that if he showed that he has IFP leanings, that that would be considered almost as a kosher political ideology and that would be recognised by members of a right-wing grouping.
It is under that guise that he became part of this conspiracy. I agree with the representative for the applicant that the applicant's application falls squarely in terms of Section 20(3)(e) that he had in fact committed the offence in execution either of an order or on behalf of a political organisation, although he may not have been a member thereof, but as an agent thereof.
He could not have acted on his own, but purely in concert with the members of the AWB and in that regard, my submission is that the objective was a political one and falls squarely within the requirements of the Act.
My further submission Mr Chairman and members of the Committee is that as my learned friend to my left has indicated, this Committee has to believe various issues.
One of the issues that one would have, that the Committee would have to look at Mr Chairman, is that the manner in which the evidence of Mr Gwamanda was given, he was forthright, there was no hesitation to answering any questions, he demeanour in answering the question showed that he indeed wanted to speak the truth, and I submit that he did so.
I submit in so far as his application is concerned, he has made full disclosure with regard to the relevant facts. At this stage Mr Chairman, and members of the Committee, I wish to state that my instructions are that when Mr Phosa had looked at the television set last night, he had indicated that the applicant was not the person that had come to see him at his home.
The person purporting to be Boy Gwamanda, was somebody else. The questions put to him in that regard, I must submit Mr Chairperson, that the answers to those questions were therefore truthful. My instructions are further Mr Chairperson, that Mr Phosa forgives Mr Gwamanda for his part in the conspiracy and my instructions are, to submit that Mr Gwamanda has satisfied the requirements of the Act and that he should be granted amnesty. Those are my submissions Mr Chairman and members of the Committee. I thank you.
CHAIRPERSON: Thank you Mr Mukadam. Mr Mchunu, do you have any reply? Sorry, sorry, I forgot about Mr Mpshe.
ADV MPSHE: Mr Chair, I was going to say I am now assuming my position of neutrality, I have nothing to say.
CHAIRPERSON: Thank you Mr Mpshe. Mr Mchunu?
MR MCHUNU: Mr Chairman, I believe that it will do justice to respond to a few comments made by my learned friends on my right.
My learned friend Mr Falconer challenged the evidence of the applicant in as far as it related to an attempt on Mr Phosa. He further stated that the applicant was or did state in his evidence that he was coerced to do what he did, but with respect, I differ to a large extent in that regard.
The applicant did state that after a long discussion with a colleague of his in prison, Mr Elijah Mahlaba, he was finally agreed or he was finally convinced that he should follow what Mr Mahlaba was suggesting, and therefore I do not believe that there was coercion at all.
On the attack of Mr Gumedi, the taxi owner, I think that one, I have pre-empted because I had expected an argument on that, whether or not there was pecuniary interest. I have addressed I believe, that is already on record. The Committee has it.
On whether or not the applicant was coerced to stay at Ndwedwe, with fate being what it is, this Committee must understand the following that the applicant had just been released from prison, he had nothing on him, he had nothing left, he only had his family in Greytown. On his release from prison, he went straight to his home in Greytown, only to be advised that his family members had fled Greytown to Ndwedwe because of fear that they could be eliminated.
CHAIRPERSON: The surviving members of his family had fled?
MR MCHUNU: That is correct, the surviving members of his family. When he reached Ndwedwe, when he was following his other family, surviving family members, particularly his sister, who was the only one according to his evidence, who was left at that time, he found that his sister was living at this area Ndwedwe, despite the fact that the IFP was in a dominating position at Ndwedwe, but his sister was able to make a living within that area.
His brother-in-law too, also did try to convince the applicant and finally the applicant was convinced that he had to live in the area of Ndwedwe. The applicant had nothing on him, he had no hope. In other words he was just hopeless at that time, he had to make a living, he had to make a living, he had to stay somewhere, and the only place he could stay closer to his family members which was the only thing he had on earth, was his ... (tape ends) ...
I believe that my learned friend, Adv Mukadam, has also explained quite thoroughly or quite correctly and I agree entirely with the argument, with the submissions which he has made.
CHAIRPERSON: I didn't think you would be disagreeing with Mr Mukadam's submissions.
MR MCHUNU: Definitely yes, naturally I would agree. The submissions with regards to the questions posed by my learned friend, Mr Nel, I think I am in full agreement with that.
Other than that, I do not have any further response, unless the Committee members want me to address it on some other point.
MR LAX: Did I hear you say that you are in full agreement with what Mr Nel said?
MR MCHUNU: Not exactly. Mr Mukadam.
MR LAX: Mukadam, I beg your pardon.
CHAIRPERSON: Thank you Mr Mchunu, Mr Falconer, Mr Nel, Mr Mukadam. We will reserve judgement and we hope that the decision will come out in the very near future. Thank you very much.
