CHAIRPERSON: Are we ready to proceed?
MR DEHAL: Judge, insofar as I'm concerned, yes indeed but for the heat I'm ready.
MR PANDAY: I'm also ready Chairperson.
Thank you Chairperson. Chairperson, we've now finally located Alzina Luthuli and the victims would like to call Alzina Luthuli.
JUDGE DE JAGER: Could you arrange for her to sit somewhere so she could give evidence?
MR PANDAY: I believe yesterday that the applicants placed the previous witness.
JUDGE DE JAGER: Where is she?
MR PANDAY: Alzina Luthuli, she's in the gallery.
CHAIRPERSON: Doesn't the other microphone work?
MR SIBANYONI: It does Judge but for the purposes of the camera that position is the only position.
JUDGE DE JAGER: I really think it's not a good arrangement for a witness of a victim to sit between the legal representatives of the applicant.
CHAIRPERSON: I think it's bad luck for the camera but I think she would be more at ease if she sat over there and the applicant can come back and sit next to his attorney.
JUDGE DE JAGER: Or otherwise the applicant's attorney should kindly move to another table.
CHAIRPERSON: It seems to me it would be perfectly possible to move the desk at which the applicant's attorney is sitting to adjoin that other desk so they have sufficient room for the applicant, legal advisors and the applicant and then we would have one desk over here where the witness or any other future witnesses can sit. Is it possible, could it be done immediately?
What language would you be speaking in?
INTERPRETER: I think it's Zulu.
ALZINA MKAZA LUTHULI: (sworn states)
EXAMINATION BY MR PANDAY: Ms Luthuli, how old you at present?
MS LUTHULI: I'm 25 years old.
MR PANDAY: And where are you currently residing?
MS LUTHULI: At Umlazi.
MR PANDAY: Now on the 1st January 1992 where were you residing?
MS LUTHULI: I resided at Umkababa in the Dlanzini district.
MR PANDAY: And tell me do you know Mfanafuti Mbukazi?
MS LUTHULI: Yes I do.
MR PANDAY: Who was he to you?
MS LUTHULI: He is the father of my child.
MR PANDAY: And in particular in 1992 were you going out with him, or his girlfriend?
MS LUTHULI: Yes I was his girlfriend.
MR PANDAY: Now just before we go any further, you mentioned that he is the father of your child. How old is your child at present?
MS LUTHULI: The child is eight years old.
MR PANDAY: Now tell me, on the 1st January 1992 were you in the company of Mbukazi?
MS LUTHULI: Yes I was.
MR PANDAY: Now I'd like you to tell the Committee, on the 1st January 1992 what took place while you were in the company of Mbukazi?
MS LUTHULI: On that day we left my home for the market. Mr Mbukazi accompanied me to the market and we met Lee and Luazi on the way who passed us. Gebu came following the two persons. My boyfriend then turned and went to these persons and on their return they immediately started assaulting him. When they did that I was standing by because there was nothing I could do. They fought up and till they overpowered him at which point Kwazi produced a knife, gave it to Gebu who stabbed him. After the first stab wound I ran away, fled to the market and from there I tried to get into a taxi to go report the matter to his home. Whilst I was still waiting there ...(intervention)
JUDGE DE JAGER: Can you go a little bit slower? Could you ask her to go a little bit slower, we've got to write down the things.
MR PANDAY: What happened on the day in question? Take your time, go through it slowly because everyone needs to write down what happened on the day. Now you ...(intervention)
INTERPRETER: The speaker's mike is not on.
JUDGE DE JAGER: Who gave the knife to another person, the names, I've missed the names, before the stabbing started?
MS LUTHULI: Kwazi produced the knife.
MR PANDAY: Kwazi, are you talking about Kwazi Mbambo?
MS LUTHULI: Yes that is correct.
MR PANDAY: Right, now you mentioned Kwazi Mbambo gave the knife to who?
MS LUTHULI: He gave it to Gebu.
MR PANDAY: Right, now who else was with Gebu and Kwazi?
MS LUTHULI: It was Lee.
MR PANDAY: What was the full name of Lee?
MS LUTHULI: I know him as Lee, his surname was Msomi.
MR PANDAY: Right now after Kwazi gave the knife to Gebu what happened thereafter?
MS LUTHULI: He was then stabbed.
MR PANDAY: ...(inaudible)
MS LUTHULI: Yes.
MR PANDAY: Now this stabbing incident in which area did it take place?
MS LUTHULI: It was at Zanzini at Umkababa.
MR PANDAY: And due you recall any particular place, what area?
MS LUTHULI: Please repeat that question?
MR PANDAY: You said the stabbing took place in Zanzina in Umkababa. Can you recall near any specific spot where this incident took place?
MS LUTHULI: It was on the road after you just passed Umkababa school.
MR PANDAY: And what was the name of that school?
MS LUTHULI: Umkababa, Umkababa City School.
MR PANDAY: Now do you recall any ...(intervention)
JUDGE DE JAGER: Do you know the - where's the - do you know the Power School?
MS LUTHULI: Yes, that is not a school but it is close to Umkababa City School. It is a power plant or power station.
JUDGE DE JAGER: So it's the same school that's sometimes been referred to as the Power School?
MS LUTHULI: Yes, that's because the power station is close to the school.
MR PANDAY: Now after the stabbing took place near the school what did you do thereafter?
MS LUTHULI: I then ran away, headed for the market and on my arrival there I left my key with a certain lady. I returned to the road looking for a taxi to take to Mfanafuti's home. Before I could board a taxi Mbambo approached and he had Mfanafuti in his vehicle and that is when they also took me to the hospital.
MR PANDAY: Mbambo approached? You say Mbambo approached?
MS LUTHULI: He was the owner of the vehicle that was transporting him.
MR PANDAY: That's not the same as Kwazi Mbambo?
MS LUTHULI: No, he is Kwazi's father.
MR PANDAY: Now the applicant Ngubane, Gebu, Ngubane testified that Mbukazi together with six or seven other people had attacked him. Would you be able to comment on his version?
MS LUTHULI: I dispute that, he is lying.
CHAIRPERSON: Did he have a gun of any sort with him?
MS LUTHULI: No he did not, he did not own a gun.
MR PANDAY: Mr Ngubane, Gebu Ngubane, also testified ...(intervention)
JUDGE DE JAGER: Would you perhaps refer to him as the applicant and to the deceased as the deceased, if you could follow that because that would make it much easier?
MR PANDAY: Yes Mr Chairperson.
Alzina, you know that Gebu is the applicant in this matter?
MS LUTHULI: Yes I heard.
MR PANDAY: If I refer to him as the applicant you will know I am talking about him, right? Now the applicant also testified that the deceased had attacked them in the Dangane area, I may have pronounced it a little bit wrongly. Would he be correct in that version of his?
MS LUTHULI: He is lying.
MR PANDAY: Tell me did you give evidence in court?
MS LUTHULI: Yes I did.
MR PANDAY: And the evidence that you give here today, was it the same evidence that you gave in court?
MS LUTHULI: That is correct.
MR PANDAY: Now Alzina, just one more question. Do you know if the deceased was a member of the IFP or not?
MS LUTHULI: I do not bear that knowledge.
MR PANDAY: And where was he residing at the time?
MS LUTHULI: He resided at Clermont but at the time he was visiting home at Umkababa.
MR PANDAY: And with who did he live at Umkababa?
MS LUTHULI: With his family.
MR PANDAY: ...(inaudible)
MS LUTHULI: At Zanzini.
MR PANDAY: Thank you Chairperson.
NO FURTHER QUESTIONS BY MR PANDAY
CROSS-EXAMINATION BY MR DEHAL: Thank you Mr Chairperson.
Ms Luthuli, sorry, this child of yours what was the date of birth of this child?
MS LUTHULI: On the 1st July 1991.
MR DEHAL: And where is the child at the moment?
MS LUTHULI: He stays with us, with me.
MR DEHAL: Would that be the same place where you stayed - sorry, would that be the same place as the home of the deceased in this area we talk of in Umkababa?
MS LUTHULI: Yes that's where he resided at my home.
MR DEHAL: Now is the child there now and are you living there now?
MS LUTHULI: The child is at Umkababa.
MR DEHAL: This home in Umkababa where the child lives is this the same whom where Mr Mbukazi's brother lives? Elder brother, sorry I'll get the name for you just now.
MS LUTHULI: No the child stays at my home.
MR DEHAL: Where is that?
MS LUTHULI: It's in the Zanzini district in Umkababa.
MR DEHAL: And how far is that from Frederick Mbukazi's home in Umkababa?
MS LUTHULI: It's not very far.
MR DEHAL: Is it walking distance?
MS LUTHULI: Yes it is.
MR DEHAL: And does Frederick Mbukazi, the elder brother of your deceased boyfriend, see this child regularly?
MS LUTHULI: Yes sometimes the child visits them.
MR DEHAL: Do you know when last the child and Frederick Mbukazi have seen each other?
MS LUTHULI: I will say it's been a while.
MR DEHAL: What do you mean by that, how long, a few days, a few weeks, a few months or years?
MS LUTHULI: If I'm not mistaken it may be two or three months.
MR DEHAL: Do I understand your evidence that apart from this two or three months Frederick Mbukazi regularly visits the child and the child on occasions visits Frederick Mbukazi and his family particularly because they live so close to each other, would that be correct?
MS LUTHULI: Well where Mr Frederick stays it's a bit far from my home so the child only visits during school holidays.
MR DEHAL: I thought you just now said that where Frederick Mbukazi stays and where you stay with the child is in fact fairly close, you pitched it at being at close walking distance and now you say it's far?
CHAIRPERSON: I don't think she said a close walking distance, she said it was within walking distance, it was not far away.
MR DEHAL: Indeed yes, whereas now you say it is far?
MS LUTHULI: When they moved from where they were residing before and therefore Umlazi and we remained at ...(indistinct).
MR DEHAL: Yes but we're talking of the house that Frederick
Mbukazi lives in Umkababa and the place you live in in Umkababa? You now say it's far, they are far from each other whereas earlier you didn't say they were far from each other?
Do you want to clarify that?
MS LUTHULI: They now reside at a place which is a bit far from my home.
MR DEHAL: And where is that?
MS LUTHULI: At Umlazi.
MR DEHAL: So Umlazi is very far from Umkababa, you've got to travel by transport to get there, you cannot even walk there, correct?
MS LUTHULI: That is correct.
CHAIRPERSON: We are talking about a killing that took place in 1992. What is the relevance of visiting in 1999?
MR DEHAL: It reflects adversely, Mr Chairperson, on the credibility of the previous witness who premised his version on the basis that he did not know well the age of this child for he hardly ever sees the child. His version is the child lived far from where he presently lives. He also said that he had not seen the child for many years and therefore the variants from two years to eights years to ten years was explained. This evidence is elicited to show ...(intervention)
CHAIRPERSON: It is clear that his estimated the age of the child was totally wrong, isn't it? The father of the child died in 1992?
MR DEHAL: Indeed but apart from that, Chairperson, it reflects adversely on his testimony and that is what I would argue later. I'm simply eliciting this evidence to support that submission. The point's made, thank you.
Do you know a person known as Tandakile Guzane?
MS LUTHULI: No I do not.
MR DEHAL: Was Mr Guzane never at the scene when your boyfriend, the deceased, came to be killed?
MS LUTHULI: It was Gebu Guzane who was present.
MR DEHAL: You say it was Gebu Guzane, Kwazi Mbambo and Lee Nsomi, correct?
MS LUTHULI: Yes.
MR DEHAL: So what did Guzane ...(intervention)
MS LUTHULI: That is correct.
MR DEHAL: Sorry, what did Guzane do on that day to the deceased?
MS LUTHULI: He stabbed him.
MR SIBANYONI: Sorry, is Guzane and Gebu the same person?
MS LUTHULI: Yes.
MR DEHAL: Mr Chairperson, may I just take instructions on this quickly? There's no need for an adjournment. Thank you.
Thank you, I'm indebted to you Mr Chairperson.
The Tandakile Guzane that I referred to is a female, the applicant's sister, do you know her?
MS LUTHULI: No I do not.
MR DEHAL: Was she not at the scene when the deceased was stabbed to death?
MS LUTHULI: No she was not present.
MR DEHAL: You see, my instructions are from the applicant that you did testify in the trial in which he was charged with murder and your evidence was to the effect that there were four persons at least including the applicant who attacked the deceased and that these four persons were the applicant, Lee Nsomi, also known as Isaac Nsomi, Kwazi Mbambo and the applicant's sister, Tandakile Guzane. Now would you dispute having said that in court?
MS LUTHULI: I do dispute it.
MR DEHAL: And of course you say you don't even know this Tandakile Guzane?
MS LUTHULI: Yes I maintain that.
MR DEHAL: Do you know the Ultra City in the vicinity of Umkababa?
MS LUTHULI: Yes I do.
MR DEHAL: Where is the market in relation to the Ultra City?
MS LUTHULI: It's very close to the Ultra City.
MR DEHAL: So after the deceased was stabbed did you go to Ultra City or did you go to the market as you say to leave your keys with this lady?
MS LUTHULI: I left the key at the market at the old market at Umkababa.
MR DEHAL: And did you ever get to the Ultra City or did you not?
MS LUTHULI: I did go to the Ultra City. I had assumed that my sister would be there but she was not so I had to go back to the road and wait for a taxi.
MR DEHAL: Sorry, so the purpose in your going to the Ultra City was to look for your sister?
MS LUTHULI: That is correct.
MR DEHAL: Not to call for the police?
MS LUTHULI: No.
MR DEHAL: In your statement in paragraph 4, the first sentence says
"After they had stabbed him I ran to Ultra City to call the police for help"
Why do you say that there?
MS LUTHULI: I went to the Ultra City to search for my sister. The thought did occur to me to call the police but there was a long queue at the telephones and when I didn't find my sister I decided it would be better to go to his home to report the matter.
MR DEHAL: When I just now asked you - when I just now made the proposition to you that you did not go to Ultra City to call the police you agreed with that. Why didn't you say yes you went, you looked at this long queue and you abandoned the idea?
CHAIRPERSON: Hasn't she just said she went to look for her sister but the idea did occur to her of calling the police but she looked at the long queue and decided against it. She did not say that she went to Ultra City to call the police, she repeated what she had said earlier and that she went there to look for her sister, isn't that so?
MR DEHAL: Indeed.
CHAIRPERSON: Well then you cannot put to her something she hasn't said?
MR DEHAL: The only distinction I'm drawing Mr Chairperson, if you'll allow me, is this that if the thought occurred to her at the Ultra City to call for the police or to join the queue and that's the distinction she drew earlier, namely that when she got to Ultra City it was principally for her sister and my question is why didn't you mention earlier that you had the idea to call for the police?
CHAIRPERSON: You didn't you said "why didn't you mention earlier that you went to Ultra City to call for the police?" She still said she went to Ultra City to look for her sister, hasn't she?
MR DEHAL: Yes.
CHAIRPERSON: She's not changed it.
MR DEHAL: Yes.
CHAIRPERSON: She said while there it occurred to her to call the police?
MR DEHAL: Perhaps I should change that question then. Thank you.
When I referred earlier to your statement, paragraph 4, the first sentence, relating to your having gone to Ultra City to call for the police, why did you not say in addition to just saying "no, I didn't go there to call for the police", why didn't you say "yes, the thought did occur to me when I was there" as you now say?
MS LUTHULI: I went to the Ultra City merely because I wanted to contact my sister even though the thought occurred in my mind but the queue was too long for me to entertain that. I decided to go back.
MR DEHAL: Where was the deceased on the night of the 31st December, do you know? 1991 that is, the night before the death?
MS LUTHULI: We were at my home at Luthuli's place.
MR DEHAL: Did you both spend the night together?
MS LUTHULI: Yes we did.
MR DEHAL: And on the morning of the 1st January did you go back to the Mbukazi home before you embarked on the journey to the market?
MS LUTHULI: We left at home together. He went first to his home, he chatted with the kids and then afterwards he came and join me to proceed to the market.
MR DEHAL: At what time in the day would that have been?
MS LUTHULI: It was in the morning even though I don't remember the time. I was going to the market to sell my product.
MR DEHAL: Can you tell whether on that morning the deceased had met his brother Frederick Mbukazi before both him and you left to go to the market or do you not know?
MS LUTHULI: I do not know.
MR DEHAL: Did you meet Frederick Mbukazi the morning of that day before you embarked on the journey to the market for the deceased?
MS LUTHULI: No we didn't.
MR DEHAL: Do you belong to any political organisation? Sorry, did you at the deceased was killed?
MS LUTHULI: No.
MR DEHAL: Do you accept that the area you lived in was an IFP area?
MS LUTHULI: Yes I do agree, it was IFP mostly.
MR DEHAL: Do you accept that the area that the applicant lived in was mostly an ANC area or predominantly an ANC area?
MS LUTHULI: Yes I do agree.
MR DEHAL: At the time the deceased was killed did you know that the applicant was an ANC supporter?
MS LUTHULI: No, I don't have that knowledge.
MR DEHAL: And at the time the deceased was killed did you know that the deceased was an IFP supporter?
MS LUTHULI: No I do not have that knowledge either.
MR DEHAL: If it is suggested to you on instructions from the applicant that the deceased was in fact an ardent IFP supporter, would you be able to dispute that?
MS LUTHULI: Yes I'll dispute that.
MR DEHAL: Why would you dispute that if you had no idea on whether he was an IFP or not?
JUDGE DE JAGER: If she's disputing that he's an ardent - you asked her whether she would agree that he was an ardent IFP?
MR DEHAL: There is that distinction, thank you.
MR DEHAL: Sorry, well generally, why would you dispute that?
MS LUTHULI: What I know is that he was completely nothing.
MR DEHAL: Is it not your version that the entire incident leading up to the death of the deceased started off would then meaning the applicant and his group calling the deceased an Inkatha person?
MS LUTHULI: Would you please repeat that?
MR DEHAL: Is it not your version that the death of the deceased started off with the applicant and the persons in his group calling the deceased an Inkatha person?
MS LUTHULI: Yes they did.
MR DEHAL: This calling of the deceased as an Inkatha person, was that in some derogatory fashion or was that complimentary?
MS LUTHULI: I don't know whether it was complimentary or not but I knew that he wasn't.
MR DEHAL: What word did they use when they said "Inkatha person"?
MS LUTHULI: Korva.
MR DEHAL: Is that not a word that has a sting to it that is derogatory on a person?
MS LUTHULI: I think so.
MR DEHAL: Did they deceased call the applicants anything?
MS LUTHULI: No he didn't.
MR DEHAL: And after the applicants and the persons in his group call the deceased an Inkatha person, what happened? Did the deceased and his group of persons chase the - sorry, did the applicant and his group of persons chase the deceased or did the deceased chase them?
MS LUTHULI: There was no running after each other. We met Lee and Kwazi, they were in front and Gebu was behind them and then the two passed us and then Gebu didn't, they only turned back and Gebu was in front of the deceased and Lee and the other one were at the back of him and then they started hitting each other.
MR DEHAL: You were asked the question on whether the deceased had a firearm. You said no, he did not own a firearm. You probably did refer to Kwasha as well, the home-made firearm but I just want to clarify, did he ever have a Kwasha, a home-made firearm?
MS LUTHULI: No he didn't have.
MR DEHAL: Did the deceased have knife on him?
MS LUTHULI: No he didn't have a knife.
MR DEHAL: Now how can you be so certain about a knife?
MS LUTHULI: He didn't have knife on him, he didn't own a knife and I'm certain because we came from home together.
MR DEHAL: At the time of his death was the deceased employed or was he at school or was he unemployed?
MS LUTHULI: He was unemployed.
MR DEHAL: Was he not attending school?
MS LUTHULI: He was a student at Mcotoyi.
MR DEHAL: What standard was he in?
MS LUTHULI: He was in standard 9.
MR DEHAL: And were you also at school at the time?
MS LUTHULI: No I had a child at the time so I wasn't at school.
MR DEHAL: And what standard did you make at school?
MS LUTHULI: Standard 7.
MR DEHAL: The applicant says that you were never at the scene, you are lying about your presence at the scene?
MS LUTHULI: He is the one who is lying.
MR DEHAL: He says you arrived at court and testified against him with a vengeance because you were opposed to the idea that he might win the trial and you wanted to see that he is in jail because you knew he stabbed your - the deceased?
MS LUTHULI: I will repeat again, I'm saying he is still lying.
MR DEHAL: And his instructions to me is that today you testify on the same lines, more or less, because you're opposed to him obtaining amnesty?
MS LUTHULI: If he is applying for amnesty he is the one who has a responsibility to tell the truth as it is and if he's telling the truth we will forgive him and we will request for him to get amnesty but if he is lying like this then we're opposing that.
CHAIRPERSON: Were you at court throughout the trial?
MS LUTHULI: Yes I was.
CHAIRPERSON: Didn't you listen to the judgment?
MS LUTHULI: I didn't attend on that specific date but Mbukazi attended.
MR DEHAL: May I proceed Sir? Thank you.
Sorry, what keys did you leave with the lady at the market?
MS LUTHULI: To open the cupboard where we leave our goods, our produce.
MR DEHAL: And when you say you got back to look for a taxi to get back to Umfana Futi's house, I'm just trying to understand this, this is a taxi to the deceased's home, is it, From where you had just walked?
MS LUTHULI: Yes the deceased's home, I wanted to report the matter to them.
MR DEHAL: And do you know how senior Mr Mbambo arrived at the scene? Sorry, how it came about that he arrived at the scene?
MS LUTHULI: No, I do not know that because it happened whilst I went to the market and while I was trying to get a taxi to go back to his home.
MR DEHAL: And do I understand you correctly that when you got back you saw Mr Mbambo approach you with the deceased already in his car and then you accompanied them and went to the hospital?
MS LUTHULI: Yes, we went to hospital.
MR DEHAL: Just on a point of clarity, when you did get back to where Mr Mbambo was, you did not - or did you see him load the deceased in his car or was he already loaded in his car?
MS LUTHULI: How could I have seen him because it happened whilst I was at the market? I only saw the deceased in Mr Mbambo's car.
MR DEHAL: So this part of your statement in paragraph 4 where you say
"I noticed Mr Mbambo loading the deceased into his private vehicle"
would be an error, would be a mistake?
MS LUTHULI: No, it is not true.
MR DEHAL: Sorry, I'm looking at an English version, I don't know whether the Zulu version is the same but sorry, I see that your original statement is also in English. When you signed your statement did you not see that this part of the statement being incorrect was contained therein? It's on page 9 in the written transcript and page 10, paragraph 4 at the bottom.
MS LUTHULI: I do not know how to speak English. I signed because I've spoken in Zulu but then I didn't read it because I can't even read, I didn't know what was written in English.
MR DEHAL: That's a fair explanation. Do you know whether - I'm sorry before I ask that maybe I should ask this, when you last left the deceased after he was stabbed and went in the direction of Ultra City, where was the deceased's body in relation to the ground, in relation to Power School, in relation to the road you speak of?
MS LUTHULI: When I left there they were still stabbing him, it was closer to the Mtjali's kraal.
MR DEHAL: I know that you now say that when next you met Mr Mbambo the deceased was already in Mr Mbambo's vehicle. Do you know whether the deceased was picked up by Mr Mbambo at the spot where you last saw him or was it on a ground?
CHAIRPERSON: What do you mean by where the spot where you last saw him or was it on the ground?
MR DEHAL: The evidence thus far is that, from the previous witness, that the deceased's body was on the ground.
CHAIRPERSON: Yes?
MR DEHAL: And my earlier question was to establish whether ...(intervention)
CHAIRPERSON: Well was he standing when he was being stabbed or was he lying down, I don't know?
MR DEHAL: Which is why I've asked this question just to seek that clarity.
CHAIRPERSON: When these people were stabbing him was he lying down at that stage or was he standing up still?
MR SIBANYONI: I think by the ground you're referring to the sports field?
MR DEHAL: Yes indeed, sorry, thank you.
MR SIBANYONI: He is referring to the sports field, by the grounds, not necessarily ...(intervention)
CHAIRPERSON: Well he hadn't put sports field to her.
MR DEHAL: Oh sorry, the word ground was loosely used until now so I thought they would better understand it that way?
JUDGE DE JAGER: Well I also understood it to mean whether he was standing or whether he was lying on the ground?
MR DEHAL: Forgive me, thank you.
I know that you say Mr Mbambo had the deceased's body in his vehicle at the time when you returned. Can you tell whether Mr Mbambo had picked up the deceased's body from the sports field or from any other spot or do you know which spot he had picked him up from?
MS LUTHULI: My apology, I can't hear. If they can change my ear sets?
MR PANDAY: Sorry Chairperson, before my learned friend rephrases or re-puts the question. I think if my learned friend could rephrase the question by asking the witness does she know where Mr Mbambo picked up the body from. That would less confuse the questioning to her and she would be in a better question to give an answer or not? I think it's, according to her evidence, we then understand where the incident took place. I think what my learned friend is trying to elicit as to where did Mr Mbambo pick up the body?
CHAIRPERSON: She quite clearly said she doesn't know. She wasn't there.
MR PANDAY: Thank you.
MR DEHAL: Ms Luthuli, do you know how many stab wounds were inflicted on the body of the deceased?
MS LUTHULI: I don't remember very well how many there were but I do remember one because I saw when he was stabbed right in the neck and then after that I ran away.
MR DEHAL: You point in the region of the throat, the one that you speak of?
MS LUTHULI: Yes where I'm pointing.
MR DEHAL: Mr Chairperson, she's pointing at the thorax - sorry, the larynx.
If it is suggested to you that the deceased was stabbed more than six times would you be able to dispute that?
MS LUTHULI: No I wouldn't, no I wouldn't be able to dispute that.
MR DEHAL: When you travelled with Mr Mbambo and the deceased in Mr Mbambo's vehicle were you seated with the deceased at the back of the vehicle or with Mr Mbambo in front?
MS LUTHULI: I was sitting with Mr Mbambo in front and at the back Umfana Futi's father was with Umfana Futi.
MR DEHAL: And do you know whether Mr Frederick Umagasi had arrived at the scene and spoke to the deceased before he was picked up by Mr Mbambo?
MS LUTHULI: No, I don't have that knowledge because I wasn't present, it was the time when I was at the market.
MR DEHAL: Bear with me Mr Chairperson?
When you met the deceased in Mr Mbambo's vehicle did you speak with him and was the deceased able to speak, was he conscious?
MS LUTHULI: There was no time to talk, I just got into the car and then we drove off to hospital, that's all.
MR DEHAL: And on the way, whilst you were driving, did the father of the deceased speak with the deceased? Did you ever speak with the deceased?
CHAIRPERSON: She's sitting inside a bakkie with the driver, when the deceased is in the back of the bakkie, how could she speak to him?
MS LUTHULI: I was in front.
CHAIRPERSON: You were in front?
MS LUTHULI: Yes I was in front and the driver was in front of the car, there's no situation where you find the driver at the back seat or at the back of the car.
MR DEHAL: Yes, I'm not getting funny with you, I just thought she might suggest a reason like the window between the front of the bakkie and the back could open and they spoke through it but in emergency situations like this I was hoping that she would elicit the answer.
In your statement that I referred to earlier on page 10 and 11 of the bundle, the handwritten part of 8 and 9 of the bundle, in paragraph 3, the last sentence, the last line, you referred to the deceased as having had three stab wounds. In fact, more correctly, you referred to the applicant as having proceeded to stab the deceased three times. Do you remember that?
MS LUTHULI: I said after he stabbed him once at the point where I've pointed, after that I ran away.
MR DEHAL: So this aspect relating to the applicant - sorry, to you having seen the applicant stab the deceased three times would be incorrect? Would you agree?
MS LUTHULI: Do you mean I stood there and I watched him stabbing him three times? No, I got scared after he stabbed him once and I ran to the market.
MR DEHAL: Bear with me Mr Chairperson?
Mr Chairperson and Honourable Members, thank you very much, I'm indebted to you. That's the end of the cross-examination.
NO FURTHER QUESTIONS BY MR DEHAL
CHAIRPERSON: Can you remember when you made this statement?
MS LUTHULI: I think the statement was made on the very same day because after the hospital we went to the police station.
CHAIRPERSON: Did you all go to the police station?
MS LUTHULI: Yes.
CHAIRPERSON: And you were obviously in a very disturbed state?
MS LUTHULI: Yes.
CHAIRPERSON: Thank you. Further questions?
CROSS-EXAMINATION BY MR MAPOMA: Just a few Chairperson.
Ms Luthuli, on page 8 of our bundle we have got a statement which you made to the police. I just want to verify with you the contents that are contained in paragraph 3. I would like you to say if this is correct or not correct. You said in that statement, I want to read:
"As they passed us"
that is, you referred to those who attacked the deceased, you say:
"As they passed us, the deceased turned around. I then noticed them call the deceased an Inkatha person."
Did you say that?
MS LUTHULI: We met two first who talked to us and Umgasani was coming from the back.
MR MAPOMA: Okay, you go on to say
"The three black males are ANC members from Umkababa reserve."
Do you confirm that you said that?
MS LUTHULI: Yes, the area where they were residing it was predominantly ANC.
MR MAPOMA: Did you know as a fact that they were members of the ANC or supporters of the ANC or you just assume that they came from the ANC dominated area that they were ANC?
MS LUTHULI: The Englanzeni area was divided into two. There was one area which was ANC and the other area was IFP and where they were residing it was predominantly ANC and where we were residing it was predominantly IFP.
MR MAPOMA: Do you know Inganiwaki School?
MS LUTHULI: Yes I do.
MR MAPOMA: In which area is that school?
MS LUTHULI: Matino area.
MR MAPOMA: Is Inganiwaki the same school as Mcotoyi?
MS LUTHULI: No.
MR MAPOMA: Am I correct to say Inganiwaki is a lower primary school and Mcotoyi is high school?
MS LUTHULI: Inganiwaki it's where I was schooling and Mcotoyi that's where Mfanafuti was schooling.
MR MAPOMA: I just want you to clarify this, you have said that the deceased was residing at Clermont and only came at Inglanzeni for a moment?
MS LUTHULI: Yes he usually went to Clermont to work during school holidays.
MR MAPOMA: Now this Mcotoyi school, is it in the ANC area?
MS LUTHULI: I don't know whether it's ANC or IFP.
MR MAPOMA: In what area is Mcotoyi?
MS LUTHULI: It is at Naglino and Mnganwaki too.
MR MAPOMA: I thought you had just said that Naglino area was ANC dominated area? Did you not say that?
MS LUTHULI: There are three schools in Umkababa. There's Damgane, Inglanza and Naglino. The place was divided into two. Inglanza became IFP. Damgane became ANC. Even though in fact we didn't have full information about Naglino but Damgane, we were certain it was IFP.
MR MAPOMA: Is it not correct that during 1991 the deceased was no longer attending school because that was an ANC area and he was driven away from that area by the ANC people at that area where Mcotoyi is?
MS LUTHULI: Who drove him away? I dispute that.
MR MAPOMA: Is it your evidence that the deceased, during 1991, was attending school freely at Mcotoyi?
MS LUTHULI: No one scared him away from school. He would have told me if anyone scared him away from school. I never heard of that.
MR MAPOMA: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Re-examination?
MR PANDAY: None Mr Chairperson.
NO RE-EXAMINATION BY MR PANDAY
CHAIRPERSON: None? Thank you for having come here today to assist us. We'll now take a short adjournment which I neglected to take yesterday.
WITNESS EXCUSED
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: That's the victim's case, is it?
MR PANDAY: That is correct Mr Chairperson.
CHAIRPERSON: And are we leading any other evidence?
MR MAPOMA: There is no any other evidence Chairperson.
CHAIRPERSON: Right, so we're ready to hear argument.
MR DEHAL IN ARGUMENT: Thank you. Mr Chairperson, I want to begin by saying that insofar as the applicant is concerned there are indeed some problems and the problems do appear to be pitched at a level that there is a variance in the version presently adduced to that, adduced at the trial but I dare say if one dissects that difference it does not become so mammoth, so counter-productive, so self-defeating as to negate the application for amnesty.
Principally there are three fundamental contradictions in his version between that at the trial without a record of course, looking at the record or the bundle as we have it.
The one is that he says "we stabbed the deceased". He explained that when Mr Sibanyoni asked him the question that by "we" he meant the one Nsomi held the deceased was "I stabbed him and because we both participated in this, I said we" and I think that is a fair explanation.
The other contradiction that he has is he stabbed the deceased with his knife, meaning the deceased's knife as opposed to the applicant's knife. Now there are three points to be made there. The first is this, there is indeed a statement which the applicant testified - sorry, deposed to, it is the statement contained on pages 5 to 7 of the bundle, it is no doubt a statement that was made under oath and it is a statement in which he says:
"I had a knife in my possession."
Now when I took instructions from him he said it should have read:
"I had no knife in my possession."
His evidence makes it very clear that he did not have, that means the applicant did not have a knife in his possession. The applicant makes it very clear, crisply clear, that he took this knife from the deceased and that having used the deceased's knife he stabbed the deceased to death. Now what turns on this? If he had a knife of his own, premeditation would probably be the argument. If he had a knife of his own it exacerbates his problem. If he had dispossessed the deceased of his knife it's supports his contention of self-defence. Now to support the contention that there must be some truth in the fact that he must have dispossessed the deceased of his knife, one looks at the earlier versions contained on pages 24 of the bundle - sorry, 24 and 25 of the bundle. When this applicant, then the accused number two, appears before a magistrate unrepresented, unaided by any person, even though unaided whilst the police were allegedly assaulted him, being present in court, he says words as crisply and clear as:
"I stabbed the deceased with his knife"
and later in the middle of that page says:
"I admit that I stabbed the deceased with his own knife."
So support for the contention that there is a level of veracity in that version more than in the version that the knife of the applicant was used is to be found in the unaided version of the applicant when he was unrepresented as early as when he appeared at court on the 22nd January 1992.
Mr Chairperson, that being the two contradictions, there is the third and that is where he says on these pages 24 and 25:
"We chased the deceased".
Now that contradiction I concede is one that he did not explain at best. His explanation there is not very satisfactory. In fact he says or rather he responded in response to Mr Sibanyoni's question about this by saying
"I did not say that, that is an error, it was recorded incorrectly."
There appears to be a ring of truth about his explanation. Now when one ties that explanation with the fact that he was unrepresented with the fact that he had just made a statement to the police which talks about five persons as opposed to about six or seven, to a policeman who allegedly assaulted him and a policeman who is now present in court and who as an accused then is speaking through an interpreter to a magistrate who now records the matter, there is the possibility of a level of confusion, is intrinsically present, it cannot be argued that it may not be possible that this was an error.
Those are the only three contradictions of merit. There is nothing else that the applicant has made. Generally the applicant was forthright in his testimony, he spoke with candour, in a manner that showed that he was being as honest as he could.
Now one must look at the applicant's testimony against the background of what truly is the position today. This is an applicant who has been convicted of this murder, this is an applicant who has been to jail on the sentence, has served his full sentence, appears before this Committee in the pursuance of an application for amnesty. In truth, in effect, no purpose would be served on this applicant's lay life if the application for amnesty were granted or refused. If it were refused ...(intervention)
JUDGE DE JAGER: When he applied for amnesty was he still in jail?
MR DEHAL: Indeed he was correct, but he had the option when last he appeared in these Pinetown courts at a time when Alzina Luthuli was not present and his matter came to be adjourned to consider, on my advice, whether he should not withdraw this application or not. He said to me and I can place this on record as an officer of the court, that he did not know quite what to do but he reasoned on the basis if he were to come to the Committee and say it as truthfully as it is, hopefully when he gets back to society there will be a level of reconciliation and at that level perhaps I should pause and interject with this digression. Shortly after Alzina Luthuli testified and this Committee adjourned, I talked to the applicant and Alzina Luthuli and they both met with each other and apologised, or the applicant apologised to Alzina Luthuli, they've embraced each other, they've forgiven each other and in that spirit of reconciliation which is indeed an intrinsic element of this TRC process, that purpose has been achieved. I can place that on record. Okay, apart from that ...(intervention)
CHAIRPERSON: Didn't she say he should be telling the truth to us today?
MR DEHAL: Oh yes indeed, she said so.
CHAIRPERSON: She said no reconciliation till he tells the truth which he's not doing?
MR DEHAL: Yes correct, at the level that her version must be the believable one. I will address on that shortly but just for the sake of the reconciliation, he has apologised to her for having caused the death of the deceased, which is common cause, whatever the reasoning being and she says "well I accept that and there was a fight going on between the ANC and the IFP at the time and I accept that."
Now apart from that, the applicant as I've just submitted has served his time, he is now free and whether he gets amnesty or not, the only effective positive is that it will clean the slate. When I explained that to him he said even that makes no difference to him because he is not so gainfully employed in high echelons of society where a record has a meaningful impact on him and that even if it's not granted he will still continue with his life unaltered.
CHAIRPERSON: Can I go back a little in your argument? Why didn't he mention this falling down till he did it right at the end in the statement that you produced?
MR DEHAL: Well quite frankly I do not know. I must say that when I consulted with him the aspect of the falling down was as the backbone of his case came off as lucidly from him as breathing and I asked him why didn't he mention it and he said he doesn't know whether he did mention it, it never seemed to him very important. We must understand ...(intervention)
CHAIRPERSON: What he said was contrary to it? It wasn't just not mentioning?
"I then turned around and stabbed the deceased."
That is clearly contrary to "I, falling down and being grabbed."
MR DEHAL: I agree, I have no argument against that. All I want to suggest is this, if there is testimony uncontroverted from the applicant that there were some problems in regard to this statement, why for example my knife, the deceased's knife, he says "I never said that." He says he didn't read the statement before he signed it. When asked pertinently about that aspect as to whether you turned around he says
"I never turned around, I never chased the deceased, I fell. I dispossessed him, I wanted to subdue him"
And that's the level at which he pitched version. No amount of cross-examination defeated him on that. It's only the statements, which he, the applicant, also casts doubt on which stands against him.
Mr Chairperson, there is this aspect that you've asked us to consider and address you on, namely whether there is an offence. I have just a few submissions to make on that. Basically two. The first is this, the applicant no doubt has been convicted. I accept that this is not a court of appeal. He is endeavouring in the hope of if he gets amnesty granted to have his slate cleaned. That's the most positive effect he can achieve from this process.
But secondly, not his view but my view as a lawyer looking at his version, if one looks clinically at his approach of self-defence, it seems to me it is not one that really succeeds as self-defence for here is a man, who on his own admission, is in the company of Nsomi who holds down the deceased at a time when the appellant - sorry, when the applicant dispossesses the deceased of his knife. Now at the level of arguing his activity hadn't gone beyond the bounds of self-defence one can see clearly that if he dispossessed of the knife he could well have taken that knife and run away. He needn't have stabbed the deceased, he needn't have stabbed him to such an extent that three stab wounds were inflicted which indeed common cause caused the death of the deceased. At that level of exceeding the bounds of self-defence it is murder with the firearm but yes, that was negated by the time the applicant got to him.
CHAIRPERSON: He fired one shot which means it has to be reloaded?
MR DEHAL: Yes.
CHAIRPERSON: So you don't give a man a chance to reload his gun while you're running away, you stab him?
MR DEHAL: With respect, that would be acting on the premise that there was another bullet to rearm the gun. I would accept the argument that had there been another bullet, presumably the deceased would have loaded it.
CHAIRPERSON: But he had been running after him? He fired and chased them?
MR DEHAL: Yes.
CHAIRPERSON: So? To save himself, he stabs him?
MR DEHAL: Yes, there are difficulties in that argument, I concede that and my first submission but the point I'm making crisply is that if one accepts at the worst that the applicant has exceeded the bounds of self-defence, then there is an offence and that offence is murder. At worst, at best assault and GBH. There is an offence for which he needs to apply for amnesty.
CHAIRPERSON: Have you seen the judgment?
MR DEHAL: Not at all.
CHAIRPERSON: Has anybody? Is it available?
MR MAPOMA: No, it is not Chairperson.
CHAIRPERSON: It is not available? Have any enquiries been made of the prosecutor or the magistrate? I tell you why I ask this, because of the sentence imposed. If the court had found - argument rather, it's not conclusion, but if the court had found that three men deliberately set upon an unarmed man and repeatedly stabbed him wouldn't six years have been the sentence imposed?
MR DEHAL: I see the point you're making Mr Chairperson, I agree and I think looking at that judgment would have been correct.
CHAIRPERSON: But if it's not, if we can't get any further information we just have to draw conclusions.
MR DEHAL: Indeed, yes. Mr Chairperson, apart from that we have the brother of the deceased and Alzina, the common-law wife or girlfriend of the deceased to have testified. I deal firstly with the brother of the deceased. I submit respectfully that his testimony is not one that can be accepted. His testimony is pitted with contradictions of material value. He is one who had, for want of a better term, to gain effect, to show that the applicant was really a criminal, pitched his entire version on the basis that this was a criminal act but yet in contradiction concedes the correctness of his wife's statement about the political motivation being present, that these persons being IFP and ANC being correct.
Now on the probabilities, Mr Chairperson, you raised one important aspect with this witness. If his father celebrated on the New Year's Eve, to have been so under the stupor as not to have known that the applicant - sorry that the deceased had spoken or not, then surely if the witness had celebrated as indeed he must have, then he also would have been as confused as he would have us believe his father was but he did not respond to say he did not celebrate, he evaded the question. The probabilities favour the conclusion that he must have celebrated the night before for it was a New Year's Eve night, that if his father was in fact under a drunken stupor as to be confused then surely he must have. But the probabilities are part, the contradictions are so apparent, I mean he talks firstly about:
"my father having reached the spot of the deceased on the ground"
sorry, on the sports ground,
"well after I reached there so my father cannot tell that the deceased spoke or not"
and this in explanation of the term used by the father in his written statement that - sorry, if I may just get to that - on page 14 of the bundle, where in the second last paragraph the father says:
"he was unable to speak".
When this aspect is put to him and he is asked about:
"What do you mean by your father was confused or celebrated the night before? If he arrived later you see then you need to explain that?"
He says:
"Well, my father and I did arrive there together"
reverting to his first version which he had used in response to Mr Sibanyoni,
"And that because we arrived together"
he then adduces the explanation that:
"Oh well, my father could not have heard me speaking to the deceased because he celebrated the night before and was confused."
Now when this is again dealt with he alters it marginally and indeed pads that version to distance himself from it endeavouring to explain it again and again. All those four contradictions were put to him, he could not explain it properly.
He then talks about three stab wounds not being possible, he pitches it at a level of being more than six stab wounds. He says so evident were the stab wounds that the lungs were showing. Now if one ties his version with Alzina's version, which I must submit at this stage is the more believable of the two. By the two I mean between the brother-in-law Frederick and Alzina. Then Alzina's version is that the deceased has a stab wound right here in the larynx and it must obviously follow that speech would have been debilitated to such an extent as to render the version of Frederick that he has this ongoing full version and discussion with the deceased implausible to say the least.
Now to tie that together than more than six stab wounds as against the entire documents before us, speaking of three stab wounds, unfortunately we don't have the post-mortem report etc., but it would appear as though in the formulation of this record having regard to the court record, one stuck to three stab wounds and that might have been common cause in the trial. Now to say more than six stab wounds is really pitching it at the worst.
He then talks about the child. No doubt he must be mistaken about the age but he talks firstly about the child being four years now. When Mr de Jager questions him how could it be possible that the child could be four when this murder took place in 1992 he says he doesn't know because he has not seen this child for a long time, the child lives on the farm if I recall what he said. Mr de Jager then correctly tells him well, that if the death occurred in 1992 then the child must be 10 now. He easily concedes yes, that's possible. Now if he is that intelligent man he wants us to believe him to be, then surely he must know the difference between four years and ten years, even at the level of a mistake. My submission is that he was simply trying to distance himself from the reality to show a child very young to buy sympathy and shows that he was not sticking to the truth generally.
CHAIRPERSON: What is the purpose of that? He knows his brother died in 1992, he must know the whole world must understand the child must be 8 or more?
MR DEHAL: Correct.
CHAIRPERSON: So it's entirely pointless, it surely just shows that he was in a state and wasn't able to think coherently.
MR DEHAL: That or the following, that when one ties Alzina's version with his version and looks at them as flip sides of a coin, here is a man, Frederick, who no doubt on Alzina's version has been seeing this child regularly. In fact the child has been visiting his home and he has been visiting the child, he is the elder brother in the family. In the nature of things, that must be the more believable version. That is as true as Frederick's version is untrue about his having not seen the child for many years. He says "I don't associate with the child, the child since the death of my brother has gone back to the farm, I've not seen the child." So at that level I say that there is a ring of untruth in his version and therefore that reason must be unbelievable, his version must not be acceptable.
But then there is another contradiction. He says he last met the deceased and Alzina - sorry, may I just look at my notes, bear with me? Yes, he said he last met the deceased and Alzina on the morning of the 1st January and when questioned about this he distances himself from that and says "no, no, I did not meet them, this was a report made to me by the children". Now Mr Chairperson, against the background of this I submit that Frederick was a man who was simply stretching the elastic to it's limit in his desire to gain effect. His version must be rejected. Alzina on the other hand I concede immediately is a believable witness. She comes in here and she says it with so much of candour and truth that even I could not cross-examine her to break her at any level. There are, despite that, contradictions between her written statement and herself. Indeed the contradiction relating to the three stab wounds as opposed to one stab wound and the contradiction between "the body having been loaded into Mbambo's vehicles at the time I got there" as opposed to "having already being loaded in there when first I got to Mbambo" are versions that can be argued away on the basis that no doubt she made a statement as is common cause as is evident on the statement on the day of the death so she must have been at level disturbed.
CHAIRPERSON: Isn't there the possibility if not the probability that somebody at the police station took notes and then prepared statements for them all?
MR DEHAL: Exactly the same argument could go for the applicant's statement, I concede that. At that possibility one could even say ...(intervention)
CHAIRPERSON: The applicant was not the morning of the killing when they were all there together, the applicant was some considerable time later?
MR DEHAL: Oh no, no, no.
CHAIRPERSON: They said they all went to the police station and isn't it from the experience one has of these, some policeman is given the job and he makes notes, writes it out and he says sign this, sign this, sign this?
MR DEHAL: Absolutely possible, absolutely acceptable.
CHAIRPERSON: He got the three from somewhere and he puts it all the ...(inaudible)
MR DEHAL: In the nature of things that's usually how it goes, my experience tells the same. I'm levelling my analogy in comparison and pitching it on the basis that it may well be that the person who took the applicant's statement may well have made notes and if you recall, the applicant at one stage said he came back later with a statement and he said "sign" as though he had taken notes, went back, formulated the statement and brought it to the applicant and where both Alzina and the applicant who says "we did not read our respective statements we signed it." I'm saying at that level to the extent that the applicant is believable, indeed Alzina is believable. Now that is where the difficulty begins. The versions between Alzina and the applicant.
I must begin by conceding as I've done already that there are difficulties at that level, I cannot for one moment stand here and say you must believe the applicant against Alzina, there is a ring of truth in both their versions but I ask you, Mr Chairperson, to look at it in this way. What motive would the applicant have to come here and lie? What motive would the applicant have to come here and lie? He's served his time, he knows that if he comes here and says that on the basis as most ANC or politically motivated applicants before TRC are doing, "listen I went there, I had an agenda, I had instructions, I executed my instruction and I did it coldly, I had no difficulty with that", the probabilities of him getting amnesty would be all the better? Now I have canvassed that with him, he's again and again said to me "listen, it was self-defence". It seemed to me that the deceased on the applicant's version had not chased him, the applicant and the applicant did not respond by stabbing him, it would have been inevitable and conceivable that at some future foreseeable event, the ANC, through the applicant would have executed an agenda to eliminate this deceased and but for this event it just became earlier.
JUDGE DE JAGER: What has been troubling me, according to his evidence the deceased murdered people from 1998 onward?
CHAIRPERSON: 1988.
JUDGE DE JAGER: 1988 and the ANC never took any steps against him?
CHAIRPERSON: Apart from reporting it to the police station.
JUDGE DE JAGER: Yes, the never decided to eliminate him, nobody ordered him to eliminate the deceased, there was no sort of order in any event of attacking, one section attacking the other section?
MR DEHAL: Mr de Jager has actually tapped his finger on the pulse that I was going to address on. If you tie these two versions, there appears to be a third that emanates from this and that is it may well be that the applicant is lying. He's the type of unsophisticated, uneducated person who wants to stick to a version that was used at the trial court. It seems to me that the more real version, which Mr Chairperson, you and the Honourable Members are to look at is this, that given the onslaught of acrimonious fighting going on between the ANC and the IFP over the years, given the uncontroverted version about the ANC and the IFP killing each other over those years, given the uncontroverted version of the applicant that indeed the deceased had killed so many ANC people, had been one that had been an ANC and defected to the IFP, that there must have been a motive to eliminate this deceased and that the killing must have been in the execution of that order to eliminate the deceased.
CHAIRPERSON: So we must assume an order that's he's denied having for his benefit? I'm afraid I find that very hard to accept.
MR DEHAL: No ...(intervention)
CHAIRPERSON: You are arguing that we must accept that he was carrying out an order to eliminate when he has denied that categorically?
MR DEHAL: Mr Chairperson, as difficult as it may sound, was that is not his version. It is a version that is in a way plausibly tainted with the version of Alzina and the brother Frederick who says listen, there's an ANC/IFP conflict going on. I'm not saying that the deceased was IFP and whilst Alzina today said "I'm not saying the applicant is ANC" her statement says yes, they were ANC members. At that level it must be seen clearly that there were ANC and IFP conflict.
Now if one takes that a little further, ask the question, is there really opposition before us here today to the applicant's amnesty application? If you look at Alzina's application she agrees when Mr Mapoma asked the question, that yes, the applicant and his members were ANC members, that is in my statement and I said so, they lived in an ANC area and indeed that was so. My boyfriend the deceased was in an IFP area, he comes from an IFP area and that's principally the reason for the fight. Frederick goes further, he says I agree with my wife, it's an ANC/IFP conflict, it's politically motivated. Now political leanage is established even on the witnesses for the victims. Full disclosure is the problem and there I have no argument. Sorry, if you'd bear with me?
The only one reservation that I have with Alzina's version is that appears to distance herself today until Mr Mapoma raises a statement with the ANC leanage and the IFP leanage. It seems if at all - I'm sorry, I'm not sure that I can submit this but it seems to me personally that knowing that this is an amnesty application there is a need for political leanage that she distances herself from it. I do not know what happened at the trial but I'm told by the applicant that she punctuated her entire evidence on the basis that he, the applicant, then an accused, was an ANC man, that the deceased was an IFP man, that this was ongoing conflict between the ANC and the IFP. That is the only reservation that I have and Mr Chairperson, with those submissions I submit that if one reads within section 20(i) of the Promotion of National Unity and Reconciliation Act 34 of 1995, at the level of there being an act or omission or offence without reading too much into the need to establish whether there is an offence here, perhaps looking at whether it's an act in itself, the applicant has made out a case for amnesty, he does have difficulties with Alzina's version looked at against him but there has been many matters of this sort with difficulties for the TRC. That in itself, like a trial, does not dismiss his application as negatory. Thank you.
MR PANDAY IN ARGUMENT: Sorry Mr Chairperson, just wondering a bit. What motive does the applicant have to launch his application for amnesty? That answer is quite simple, Mr Chairperson. It's my respectful submission that when this application was launched for amnesty, if one looks at page 3 of the bundle of documents, one would note that this application was commissioned on the 1st November 1996. Now at that time the applicant would have still been serving his sentence. In his attempt to launch his application it would have given the will to foresee that he may be out of prison sooner than expected and more importantly had he most probably stuck to this application itself as opposed to submitting Exhibit B, he would have had almost no problem in most probably succeeding his application.
The Committee sits here today and has to make a decision as to whether (i) was the act or acts of the applicant political? And (ii) has he fully disclosed as to what had taken place on the day? He has expressly stated under his evidence in chief and cross-examination that he acted in self-defence. He has also in paragraph 11 of his statement submitted on the 14th of this month stated that his act was self-defence. Now the Committee now faces a problem in deciding whether we need to grant him amnesty for this application. As the Committee you are faced with an issue of a political agenda. Now the applicant has abandoned his political agenda and has brought to the Committee's front that this action was one of self-defence and his most fateful submission that this is not the forum to have raised this issue.
My learned friend has argued that one can look at Section 20 and consider the acts, offences, in it's wide sense to embrace this argument. My learned friend has further argued that ...(intervention)
CHAIRPERSON: But on this one it's a matter that causes me some problems. If you get what is obviously a political fight between an ANC group and an IFP group who are seeking to take over a building or something and it is in furtherance of their objective, but during the course of that fight one of them gets cornered and he manages to take the knife away from the person who has cornered him and stabs him so he can get away safely. Does that mean it's no longer political?
MR PANDAY: Well Mr Chairperson, I concede the point that that still remains political. The action stems from a political objective and continued. Now the applicant seems to now distance himself from the political objective. He mentions that he did not have the intention to kill the person and thereafter goes on to say it was self-defence. He merely had to stick to his version that the killing of the victim was as a result of the original act that was political?
CHAIRPERSON: He is saying "they were political in coming to attack us and drive us out of the area. We were just fleeing for our lives."
MR PANDAY: Mr Chairperson, I may concede that point that it can still be very well construed as political. Now the second test of this application is that there has to be full disclosure. Now as my learned friend has pointed out, he cannot submit or make any submissions with regards to full disclosure. The full disclosure of the applicant is hampered seriously by the evidence of Alzina. Even if one has to disregard or not hold the evidence of the brother Frederick Mbukazi in much light, it is my respectful submission that Alzina was straightforward, she was candid, she was able to give a detailed account and a precise account of what took place. She was not able to have been broken under cross-examination and she merely related what took place on the day in question. Now if one has to look at the version of the applicant who suggests that she was there to just merely see the people punished, a person of that sort, Mr Chairperson, would not have been able to sustain a detailed cross-examination. She gave her evidence straightforwardly, she had no problems in relating the sequence of events that took place. She detailed the place where they were at as well as the incident and as to how the body got to the hospital.
Now the applicant would like us to believe that the incident took place at the ANC stronghold, that being Dangani and she quite emphatically denied that. She states that they were on the way to the market and this took place near the power school, that is in the Hlangesi area and that is where the incident took place where the applicant attacked, together with two other, attacked the victim.
The applicant further denies there being a person namely Mbambo, Kwazi Mbambo. Now judging from the evidence delivered by Alzina she was very sure as to who was present. She gave a detailed account, there were three people. So and so gave the knife to the applicant and he did the stabbing. Shows the person that did not add frills and thrills, if she did not know something she blatantly denied it, "I do not know, I can't say for sure" and that was it.
Now even if one accepts this entire in the mind of the applicant there was a political feud going on, everyone accepts he is an ANC activist, he is an ANC supporter, everyone has to accept that the victim was an IFP supporter or IFP activist, that will cover the political aspect of this application.
The second issue to address is the full disclosure. It is my respectful submission that the applicant has not made any full disclosure or has not made full disclosure. It is common cause that the victim was killed but the circumstances under which the victim was killed and as to why exactly he was killed, that in my respectful submission is not full disclosure and it is therefore my respectful submission that the applicant has failed the test to be countered amnesty and accordingly his application should be refused. Thank you.
MR MAPOMA: I have no argument Chairperson, thanks.
NO ARGUMENT BY MR MAPOMA
MR DEHAL: I have nothing to add, thank you.
