Amnesty Hearings

ON RESUMPTION

MAFANDO JOKONIA MAFU: (s.u.o.)

MR DEHAL: Sorry, Mr Chairperson, in the Mafu matter we were at the stage when we had adjourned on the last occasion for Ms Deborah Quin to visit the Westville Prison. She has since given me copies of certain documents which she says she has managed to obtain from the file of Mr Mafu presently held at the Westville Prison. I've had regard to these documents, my instructions are that our position insofar as annexures C, D, F, G and H still stand. Additionally, Mr Chairperson, having ...(intervention)

JUDGE DE JAGER: C, D?

MR DEHAL: Sorry, may I go over that again? It would be C, D, the two applications or two additional applications, F, G and H, the three letters.

JUDGE DE JAGER: You are still denying that they've been sent by the applicant?

MR DEHAL: Correct.

JUDGE DE JAGER: Right, thank you.

MR DEHAL: And insofar as the documents that have now been given to me by Ms Deborah Quin, may I just make the following brief prime facie comments? Firstly, the cover sheet I presume we all have that as a cover sheet? The cover sheet ...(intervention)

CHAIRPERSON: Sorry, before you go on, have you got a bundle of documents?

MR DEHAL: I do.

CHAIRPERSON: Should we call that K?

MR DEHAL: K, indeed. On the basis that the document which, through you, Mr Chairperson, the applicant recorded his name and other details I see is marked J.

CHAIRPERSON: Yes.

MR DEHAL: There being no I.

CHAIRPERSON: No I.

MR DEHAL: Thank you. I don't know the order of K and the various pages but whatever the order be, the first page which apparently was taken off from the inside of the folder being a running diary recording the progress relative to the dates, the nature and the content of documents sent out, I have just the following comments to make in that regard.

Firstly, the file of each prisoner apparently follows the prisoner whichever prison he goes to. This I've established from the head of the Westville Prison, from the prison warders who are present here in this forum and from Ms Quin.

Secondly, the prison number of the prisoner is the same whichever prison he is in, in this case Mafu's prison number being 520633.

Thirdly, on the diary of events as recorded on the cover sheet, there is no reference to any of the three applications for amnesty except for the very first application namely those contained in the bundles, pages 1 to 10, for if you recall, Mr Chairperson, on page 10 of that bundle is the date 26 November, that being the date of the first application in the Zulu language and if you look on the bottom right hand corner of the cover sheet of annexure K you'll find in the sequential order the date 26 November 1996. Alongside that "Application Amnesty".

Now that's the only reference to an application for amnesty.

CHAIRPERSON: That is number 90?

MR DEHAL: Indeed. Well that's a better way of referring to it, thank you. If you look at the numbers 1 to 100 you'll find there is no reference to the other two applications namely annexure C and D, well to the best of my reading, I stand corrected.

Then you've got the three letters F, G and H, two from Pietermartizburg and one from Westville Prison but on the basis that the file is the same, it doesn't matter which prison it came out of, the dates are important, the 26th March 1997 for annexure H ...(intervention)

JUDGE DE JAGER: Where is that item number?

MR DEHAL: Sorry, that's not present in that cover of annexure K. So the point I'm making crisply is annexures F, G and H, to the best of my reading, are not referred to in annexure K.

CHAIRPERSON: Sorry which ones?

MR DEHAL: The three letters.

CHAIRPERSON: What about number 79?

MR DEHAL: My photocopy I cannot really read what the words are nor the date, it looks like 25th of something 1996 and it says "appli" something. Applicator.

CHAIRPERSON: 25th June isn't it?

MR DEHAL: Is it? Thank you. Application details?

Sorry Mr Chairperson, is that date the same as one of the letters? I see it's not but ...(intervention)

CHAIRPERSON: No, it's the same as an application.

MR DEHAL: Is it?

CHAIRPERSON: D.

MR DEHAL: Oh I see, D is dated 20th June though and this is dated 25th June and the other thing is, if you look at 26th November item 90, it records relative to the first application for amnesty in the bundle page 1 to 10 as being Application Amnesty. I wonder why here it says Application Details, if that what it says as opposed to Application Amnesty? Just bear with me Mr Chair?

CHAIRPERSON: Can be, I think it must because if you look immediately above 78 is Indemnity Application, isn't it?

MR DEHAL: Yes.

CHAIRPERSON: And 82 is Indemnity Hearing it seems to be.

MR DEHAL: Yes.

CHAIRPERSON: So this may be application details for the Indemnity Application?

MR DEHAL: Possibly, yes. Thank you. Mr Chairperson, the other comment I wish to make is this, pursuant to the consultations I held with the head of the Westville Prison and the warders here present and indeed with the applicant and I raised this with Mr Tom Mdlada, the other applicant I represented before his lordship Mr Mall, it seems clear that what does happen in regard to each prisoner is that when a letter and particularly an official letter like that to the Minister of Justice or to the TRC are sent, or applications are sent, copies of each of those are put into this file of the prisoner and cross-referenced by number to the schedule annexure K. Support for that submission is to be found in the fact that Ms Deborah Quin in the document she has brought has now also brought a letter written on behalf of this applicant Mafu which is the last or which are the last two pages of my bundle, a letter in handwriting addressed to the Minister of Justice dated 4th July 1994. Now Mr Mafu says that is a letter that was sent on his behalf, it was written by a co-prisoner of his, Mr Mafana Dlamini who was then on death row with him, you would see that that letter came out of Pretoria, it is not signed by him, what Mafana Dlamini did was tick his prison card in his presence and wrote the applicant's name and applicant's then prison number on that letter. But apart from those comments, I understand that all letters and applications of an official nature in particular are fully photocopied and kept in his file but originals are also kept in that file in regard to letters that are received by the prisoners. So if the prisoners lawyer were to write to him for example and the original of that letter is stamped by the prison and kept within the file. Like in this case for example if you look at the letter from the Commissioner of Correctional Services, Mr J A Knoesen, 97 on the annexure, that's called "Representations" you'll see on the photocopy of that original is here stamped by the prison, signed for by the prisoner and kept in his file. Now having regard to that ...(intervention)

JUDGE DE JAGER: Just as far as that is concerned, so this item 82 or 78 there should be copies of those applications in the file?

MR DEHAL: Yes, now what Ms Quin told me is that she did not make a copy of the entire file, there are in fact two bulky files.

JUDGE DE JAGER: You see because that couldn't relate to indemnity because Indemnity Act at that stage was repealed already in 1996. It was in fact repealed by this very Act of ours.

MR DEHAL: Yes except that apart from that comment which I accept, you'll find that in the bundle before us there is some document form A dated 12th November '92, Government Gazette date of course, dealing with indemnity applications.

JUDGE DE JAGER: Yes, that's previous.

MR DEHAL: Yes, agreed.

JUDGE DE JAGER: Long before '96.

MR DEHAL: Correct. Now I can't explain why they use the word indemnity here unless of course and I dare say this is just an observation I make as a lawyer, I've dealt with various indemnity applications and I know that some prisoners have been under the misguided impression that indemnity had been pursued, not being familiar with the fact that there was a cut off date ...(intervention)

JUDGE DE JAGER: Even lawyers these days still talk about indemnity.

MR DEHAL: Correct.

JUDGE DE JAGER: So it's not only the prisoners.

MR DEHAL: Indeed, indeed. So apart from that Mr Chairperson, my comments are the following or the summation of my comments are that these annexures which the applicant presently disputes namely C, D, F, G and H are neither referred to in his files nor are copies thereof in his files, nor is the ambiguity so wide as to arguably include the possibility of these documents being in his file or being referred to in his file. In the circumstances, it appears overwhelmingly obvious that those disputed documents are not his. Thank you.

Sorry, Mr Chairperson, I'm just reminded of further important comment that I ought to make and that is this. In the bundle itself, annexure K, cross-referenced with a number 90, application amnesty, is a document being a letter written out by Mr V Govender addressed to the Office for Indemnity, Immunity and Release, Private Bag X800, Pretoria, which refers to three prisoners, Mafu J Mfanu, this applicant, Mark Daniels and Eric Majia and also attached to it is a certificate signed by Mr V Govender relating to Mafu Mfanu. Do you see that Mr Chairperson? Shall I show you my copy?

JUDGE DE JAGER: Could you read the numbers of the pages, we didn't number the first page but we've numbered from thereon pages 1 up to 15?

MR DEHAL: If the order of our papers are the same this would be page 7, 8, 26th November 1996 and then the next page both have the number 90 on top of them. That number 90 cross-references with the first page 90 dealing with Application Amnesty. Now what Ms Quin has told us is this that the standing rules at the prison are the following relating to an application for amnesty. Apparently the TRC has an understanding with all prisons and prison officials on this. When an application for amnesty is made and this letter and the annexed certificate must be completed on behalf of the prisoner and kept in his file, now this you will see has been complied with relating to the application for amnesty admitted to by the applicant pages 1 and 10 of the bundle but no such letter nor certificate has been completed nor is contained within the bulky files of the applicant relative to annexures C and D, the other two purported amnesty application. Thank you Mr Chairperson, those are the comments.

CHAIRPERSON: No further evidence is to be led?

MR PANDAY: Cross-examination at that stage Mr Chairperson.

CHAIRPERSON: Very well.

CROSS-EXAMINATION BY MR PANDAY: Mr Chairperson, before I proceed for what it's worth I must point out is that unfortunately we've been given these bundle of documents with the registers and whatever and it has been noted that Ms Quin did not photocopy everything to allow us to really follow as to how this register has been compiled but as for what that is worth I'll proceed.

Mr Mafu, you confirm that your application exists from page 1 to page 10?

MR PANDAY: And that Exhibit E is a translation of that application?

MR MAFU: Yes.

MR DEHAL: Sorry Mr Chairperson, he does not have Exhibit E with him, he's not really familiar with the exhibit numbers. I see he answered yes, I don't know what you meant by that, I was just on my way to give it to him.

JUDGE DE JAGER: Yes I think that's been agreed to previously and it's common cause.

MR PANDAY: Now Mr Mafu, you mentioned that you were ordered by Cyril Shezi to carry out the attack on Mkhize, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now on page 2 of Exhibit E, I'm going to read it out to you, the interpretation is as follows

"We were not ordered by anyone in the organisation, we just decided as members as to what we should do to protect ourselves from the killers. The person that was sent by us to go and report our situation to the offices of our organisation was told that we had to protect ourselves was Cyril Shezi."

Is that correct?

JUDGE DE JAGER: Where are you reading?

MR PANDAY: Mr Chairperson, it's Exhibit E from page 2, paragraph 11, right at the bottom.

CHAIRPERSON: Paragraph 11(b)?

MR PANDAY: Yes.

JUDGE DE JAGER: Going over to the third page?

MR PANDAY: Yes Mr Chairperson. Is that correct Mr Mafu?

MR MAFU: Would you please repeat your question, I didn't understand it?

MR PANDAY: Paragraph 11(b) in Exhibit E there's a translation of your application. That simply says that nobody gave you orders, you acted as members and the person that was sent to go and report to the organisation was Cyril Shezi, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now in your evidence you mentioned that Cyril Shezi was giving the orders to attack. Now why is it different here?

MR MAFU: Yes he is the one who gave us orders.

MR PANDAY: But over here you say that nobody gave orders, you had decided as members to defend yourselves?

MR MAFU: I meant that no one from the offices came and gave us instructions but what I meant was that Cyril went to the offices and then when he came back he came with this. In fact we took the decision together, he was with us, Cyril was one of us.

MR PANDAY: No this is not what this paragraph says. Cyril was only sent to report what you were doing, not to come back with orders. This paragraph says something else, not what you're saying to us now.

MR DEHAL: I just beg to differ with the last comment, Mr Chairperson, what he is doing is endeavouring to explain this paragraph. What he is saying is that Cyril Shezi sought orders from somebody in a more senior position whom Cyril Shezi had access to, return and there was a meeting and they together took a decision.

CHAIRPERSON: Yes and what is being put to him was that he said in his evidence that they were ordered by Cyril Shezi to do it? Not that Cyril Shezi provided them with information on the basis of which they formed an opinion?

MR DEHAL: That would be fair.

MR PANDAY: Now why is there a difference in your version Mr Mafu? First you say Cyril Shezi ordered you, now you say that Cyril Shezi went to come back with orders?

MR MAFU: Cyril was the one person who was going to the offices and he was one person we were listening to him. He's the one who went to the offices and came back and reported to us and then we took decision together with Cyril.

MR PANDAY: Now when did Cyril Shezi go to the office?

MR MAFU: On the very same day. He left in the morning. He came back at about 11 o'clock. That's when we sat down and decided on what to do.

MR PANDAY: Now when Cyril came back with the orders, what orders did he come back with?

MR MAFU: We were only told to protect ourselves. The people from the offices told Cyril to come back to us and discuss with us and see a way to protect ourselves. That's when Cyril said we should go and attack Mr Mkhize.

MR PANDAY: Now why exactly you had to attack Mr Mkhize? What was the reason to go and attack Mr Mkhize?

MR MAFU: He was one of the people who were fighting with us and he was a member of IFP.

MR PANDAY: Now the reason why you went to attack Mr Mkhize was because he was a member of the IFP and he was a person who was fighting you all, is that correct?

MR MAFU: Yes that is correct. Yes, that he was a member of IFP and he was also fighting with us.

MR PANDAY: Right now, do you recall the statement you made to your attorney?

MR MAFU: Yes.

MR PANDAY: And that was handed in as Exhibit A?

MR MAFU: Yes.

MR PANDAY: Right, now this is what you say in paragraph 7

"In order to execute Cyril Shezi's instructions I, together with 200 ANC comrades, marched to the deceased's home. As we were approaching his home we met the deceased on the road. I then saw as the best opportunity to ask the deceased whether he did in fact practice witchcraft and kill my brother."

Now your instructions to kill him or attack him because he was killing IFP members and he was attacking you. Why did you talk to him about your brother? Your brother was not an ANC boy? You brother was in fact eight years old at the time?

MR MAFU: This is what he had already said to me and my family. I wasn't supposed to go there and speak to him. All I was sent to do was to be there and kill him.

MR PANDAY: You said this is what he said to you and your family, what did he say to you and your family?

MR MAFU: He said my brother wasn't going to die if he was still working for him.

MR PANDAY: Yes, that we understand you gave that earlier on in cross-examination but you went there to attack him on a different instruction. Then you go on to say further

"I heard rumours from my family that my brother was killed in an accident a few days earlier, was bewitched by the deceased. The deceased refused to answer me."

Now in paragraph 8 you say the following:

"Upon arrival at his house my comrades and I started stoning the deceased with the intention to kill him and to give effect to Comrade Shezi's political instruction to us. It is possible that I then asked him further questions about the deceased's witchcraft and activity at this stage."

Now why did you take him back to his house?

MR MAFU: We didn't want to hide the fact that we had already killed him. In fact we knew in our area that if an organisation, if our members of the organisation killed someone you do not hide his body because we wanted it to be known.

MR PANDAY: What do you mean that "we in fact had already killed him"? He was still living when you took him to his house?

MR MAFU: We took him to his house because we were there to kill him therefore we wanted his body to be in his home. We brought him to his house in order to kill him there because he was guilty, in fact the community knew he was guilty and he was killed in front of everyone.

MR PANDAY: Did you not insist to see evidence of witchcraft?

MR MAFU: He admitted having muti in his home and when we arrived in his home he got inside the house to bring the muti but then when he got outside he didn't have muti with him, he had weapons and he started fighting. That's when they started throwing stones upon him.

MR PANDAY: Now when did you question him about the muti, when did he give you an answer?

MR MAFU: In the street when we first saw him in the street I questioned him about that and he gave me that answer. When we got to his home he had already told us that he's got muti.

JUDGE DE JAGER: Now did he come out of the house with weapons and started fighting you?

MR MAFU: Yes.

JUDGE DE JAGER: Why didn't you tell us that before? Why didn't you mention it in your statement?

MR MAFU: I think it was a mistake that I didn't put it but even in court I think I remember mentioning it. It was a mistake if I didn't tell my attorneys.

JUDGE DE JAGER: What weapons did he have?

MR MAFU: We were left outside and then he got inside. He brought the weapons and then he started fighting.

JUDGE DE JAGER: What, assegai, knives? Or tomahawk or what did he have?

MR MAFU: A spear and a bush knife.

JUDGE DE JAGER: Did he strike at anybody, did he hurt anybody?

MR MAFU: No, he couldn't because as he came outside people were ready then they started throwing stones on him and he fell down.

JUDGE DE JAGER: Could I ask you another thing? Was the deceased and informer?

MR MAFU: Yes.

JUDGE DE JAGER: What did he do?

MR MAFU: We will see him whenever we decided on holding a meeting and during our meetings we'll see coming with policemen and we will be helping them.

JUDGE DE JAGER: And was that the reason why he was killed?

MR MAFU: It is one of the reasons.

JUDGE DE JAGER: Now why didn't you mention that this morning when you were asked what was the reason for killing him because that's an important factor isn't it?

MR MAFU: He did not give me an opportunity to enumerate all of the reasons. He did not ask me one by one specifically. If he had I could have explained everything.

JUDGE DE JAGER: You see there's no details given at all of his activities as informer in your application or in your statement. It's mentioned at the beginning and never referred to again, not even at the meeting?

MR MAFU: When I filled in my application form I bore in mind that I would appear before the Committee and be able to explain everything. I had also hoped that I would meet with the family and be able to explain everything to them. I did not know that I was supposed to put every detail into the application.

JUDGE DE JAGER: Well you had the opportunity now to tell us about this informer and you didn't do so?

MR MAFU: It was my mistake, I thought the attorney was asking me about something that I already referred to, not everything but ...(intervention)

JUDGE DE JAGER: You create the impression to me that wasn't an important factor at all because you didn't testify about it so I thought well maybe he wasn't an informer?

MR MAFU: Well all I can say is that he did work with the police.

JUDGE DE JAGER: Well you never told us about it.

MR PANDAY: Now you mentioned that he told you about the muti when you were walking in the street, that is correct?

MR MAFU: That is correct.

MR PANDAY: Now I'm going to refer you to paragraph 7 again of Exhibit A. In the end of paragraph 7 you say

"The deceased refused to answer me."

You first questioned him about witchcraft and he refused to answer you. Now why do you change now?

MR MAFU: When I asked him the first time he started by refusing but when everybody else got into the argument when they started questioning him further he did answer eventually.

MR PANDAY: So why didn't you put that in your statement?

MR MAFU: Well I was saying maybe it was by mistake.

MR PANDAY: Isn't it also your evidence that witchcraft was being embraced by the IFP against the ANC?

MR MAFU: Yes they did practise witchcraft.

MR PANDAY: Now why did you particularly ask him about witchcraft against your brother and not about witchcraft against the ANC?

MR MAFU: The reason why I questioned him about my brother is because of what he had said. I would not have questioned him about witchcraft, if he had not said those words we would have just attacked him but because I wanted an explanation about what he said about my brother I did ask him that question.

MR PANDAY: So you were using this attacking for your personal gain as well?

MR MAFU: No it was protecting myself as well as other people who were suffering at the time and I was also following a command that I had been given. It was not my personal choice.

MR PANDAY: Then why question him about personal issues, you were following a command, you had a plan to attack him? Why were you now questioning him with personal issues?

MR MAFU: There were other members of the public who were present. It would have been difficult to just attack him without saying anything. They would have perceived us as criminals. For me to question him about this it was because I wanted the community to hear for themselves that this person had committed certain offences.

MR PANDAY: Yes but the only offence you questioned him about was the killing of your brother. So you wanted the community to hear that you were questioning him about the killing of your brother, no other offence you questioned him about?

MR MAFU: I questioned him about my brother as well as for his witchcraft practises.

MR PANDAY: It was used against your brother, nothing else?

MR MAFU: It was proper that I should ask him about his witchcraft practises because when he uttered those words I was in the presence of just a few people. The other members of the community had not been present. It would not have been acceptable for us to divulge the offences that he had been touched with after his death.

MR PANDAY: Who were you going to divulge this information to?

MR MAFU: The intention was to inform the entire community so that they were aware of what had happened, that he was a resident.

MR PANDAY: The only thing you informed the entire community was about the death of your brother because you questioned him about the death of your brother, nothing else?

MR MAFU: That is one incident that I had an opportunity to discuss. I could not attend to any other issues because I had already been given a command, that would have wasted a lot of time.

MR PANDAY: Which was more important, to protect the ANC or the death of your brother?

MR MAFU: The important thing was what I had been ordered by the ANC because even when my brother's issue was raised at the meeting it was decided that we should not be hasty, we should not take action before we investigate. One of the comrades suggested that we should not be hasty and take steps before investigating the issue and that was where it was left. When he was being assaulted I found it proper that I should remind him of what he had said on the previous occasion.

JUDGE DE JAGER: Well why didn't you ask him about his informer, him being an informer because that would have been of interest to the community if you had to investigate the allegations against him?

MR MAFU: I regarded that as something that was public knowledge because when he walked around with the police he was in clear view of everyone, there was no need for me to start questioning him about it.

MR PANDAY: Now you say that was public knowledge. Now why didn't you just put that in your statement? He was an informer, he was a threat to the ANC, we had to eliminate him. Why did you talk about your brother's witchcraft practise, the witchcraft practise against the ANC. The entire sequence of events only revolved around your brother?

MR DEHAL: Sorry Mr Chairperson, I think that's a trifle unfair because if you look at paragraph 6 on the first page of Exhibit A at the bottom, it does say it was made clear at the meeting that the deceased was going to be killed because he was an IFP member who was a police informer and was responsible further for killing of several ANC members. It was also well known that witchcraft was embraced, etc. etc., and so he goes on talking about it.

MR PANDAY: Mr Chairperson, we're not talking about what took place at the meeting, we're talking about what took place in front of the community. In fronted of the community he wanted to make them know what was taking place, that the victim was an informer and so forth.

MR DEHAL: Well his answer there is that the ...(intervention)

JUDGE DE JAGER: Well, leave it for him to answer and then argue it ...(inaudible)

MR DEHAL: My only objection is that his answer is that he says it was already public knowledge in that regard and he has answered that already.

MR PANDAY: Now Mr Mafu, you said that the deceased went into the house and brought the bags out with the weapons, is that correct?

JUDGE DE JAGER: No, not that he brought out bags with weapons, he had weapons in his hands when he appeared.

MR PANDAY: Okay, sorry. You mentioned that the deceased entered his house and when he reappeared he had weapons in his hands, is that correct?

MR MAFU: That is correct.

MR PANDAY: Now you mention in paragraph 8

"Upon arrival at his home my comrades and I started stoning the deceased with the intention to kill him."

Now at what point did he go back into the house? Did you stop the stoning?

MR MAFU: When we arrived at his home he went into the house, came out with weapons and that is when we started stoning him. When we went into his house we wanted to give him an opportunity to go inside and fetch the bags. Instead he came out with the weapons that is when we started stoning him.

MR PANDAY: Now did anyone else go in the house with him?

MR MAFU: No one did, he went in alone because there was nothing that he could do to disappear because there were many of us and we had surrounded his place. Even if he had delayed in the house we could have gone in to fetch him. We just assumed that he was going to go in and get the bags.

MR PANDAY: Did you not fear that he may come out with guns? He could shoot you?

MR MAFU: We may have thought of that but that would not have stopped us from carrying out whatever we had intended to do to him.

MR PANDAY: Do you know Kenneth Mkhize?

MR MAFU: Yes we grew up together.

MR PANDAY: Yes you mentioned in paragraph 6 he was present at this meeting where you all decided to kill his father, is that correct?

MR MAFU: Yes he was present.

MR PANDAY: And when did this meeting take place?

MR MAFU: It was on a Tuesday.

MR PANDAY: How many days before his father's death?

MR MAFU: The meeting was held on a Tuesday and his father was killed on the following day.

MR PANDAY: Now Kenneth Mkhize who firstly denied being at this meeting, he in fact gave evidence in court, that's on page 27 of the bundle of documents, there he says he was approached by Babalo who questioned him about his not attending ANC meetings. Would Kenneth be lying?

MR MAFU: He may say that he was questioned, that I may not dispute but I would dispute it if he says he was not present at the meeting but I do understand his motive, it is his father that was killed. I do dispute that he was not present at the meeting but I understand because it is his father that died therefore he would say whatever to deny any involvement but he was present at the meeting.

MR PANDAY: So you don't think it's strange that he wouldn't have told his father you were going to kill him?

MR MAFU: I cannot speak on his behalf but as far as I can tell, as far as I'm concerned I would have told my father because even when we approached the deceased he seemed to have some knowledge that he was expecting us, he seemed to have an idea that he might be killed because he even apologised and said "please don't kill me" which indicated that he may have had some prior knowledge. I cannot say though that Kenneth might have informed me of that.

MR PANDAY: You say he apologised, when did he apologise to you?

MR MAFU: When we met him on the road he apologised and said that we should not kill him. That is when I started questioning him.

MR PANDAY: You say on the road he apologised for not killing him?

MR MAFU: That is correct.

MR PANDAY: Now how would he have known at that time on the road you were coming to look for him, that was not even at home? You met him on the road?

MR MAFU: He deduced that from the way that we were approaching him because it was clear that we were coming directly to him, that is when he started apologising.

MR PANDAY: Now you mention that he went into the house and came out, did he come out with the bags?

MR MAFU: No, he came out with a bush knife and an assegai.

JUDGE DE JAGER: He answered that before, is it really necessary to repeat it and repeat it?

MR PANDAY: Okay Chairperson, moving on. Tell me, did you all insist on seeing the muti?

MR MAFU: Yes we called Kenneth and told him to go fetch the bags. Instead he came out with a bag containing spanners and other tools as well as another bag containing a few herbs. We just left that bag because we did not regard those herbs as dangerous. At that time the deceased had already been killed. He was then doused with petrol and Kenneth was told to light him and his body was late and then we fled thereafter.

MR PANDAY: So you said before you poured petrol on him he was already dead, is that correct?

MR MAFU: He seemed to be dead because at that time he was not moving and his legs were broken but I cannot be absolutely certain that he was dead because from what I heard in court he died at the hospital but when he was doused with petrol he looked to be dead because he had also been assaulted and stoned.

JUDGE DE JAGER: Didn't he tell Kenneth that Kenneth should obey your order and pour petrol on him when Kenneth was hesitant in doing so?

MR MAFU: He did not. Kenneth said, he said it himself that there's nothing he can do except to do what we were telling him. I told Kenneth that there was money inside his father's coat and he removed the money. When he was supposed to light him he did not do it but fled and I continued doing so.

MR PANDAY: You know that Kenneth's evidence is opposite to what you say?

MR MAFU: I cannot comment on that but I'm only relating what happened when we killed his father. I cannot comment on the contradictions in our evidence.

MR PANDAY: And who eventually lit the body?

MR MAFU: I did.

MR PANDAY: And where was Kenneth?

MR MAFU: He had already fled.

MR PANDAY: You see the family is opposing your application because they maintain that your attack was merely a revenge attack for the death of your brother and not a political attack. Do you have any comment to that?

MR MAFU: The family did not have full knowledge of why the deceased was attacked. The matter relating to my brother was divulged by myself, they didn't even know about it. I am here because I would like to reconcile with them, I grew up with his sons and we were all together and they assisted me in many ways. Some of his sons had their own houses. They would sometimes give me odd jobs to do at their homes because we were all living together as neighbours. I came before the TRC so that they could understand fully the incidents and the reasons surrounding their father's death. Some of them were not even present when he was assaulted therefore I do understand when they say that because they do not have full information and I'm here to disclose exactly what happened. I would plead with them to believe me because they know the sort of person that I am, we grew up together and I would like us to be reconciled. Even if I had been killed when I was given the death sentence they would not have benefited in any way therefore I request from them, I plead with them to listen to me and forgive me for what I did.

MR PANDAY: Did you eventually learn how your brother died, Siboniso?

MR MAFU: No I did not learn about it but he was not done by a car. Mr Mkhize's involvement in my brother's death came about from what he had said that my brother would not have died had he continued working for him. It was not because I had seen him giving him muti or something of that nature.

MR PANDAY: And how did your brother, Sidlagu, die?

MR MAFU: He was killed by the deceased's son after we had killed their father. They came across him in a shebeen and they killed him there.

MR PANDAY: And your father?

MR MAFU: My father died of an illness although when he was ill he would say a lot of things that did not make sense. I do not think that by the time he died he had his full mental capacity with him at the time.

MR PANDAY: So your father was ill at the time when he died, very sick? Your father was very sick when he died?

MR MAFU: Yes my father died after a long illness.

MR PANDAY: Now paragraph 9 in Exhibit E, that is the translation of your application, it says that your father was killed in 1985 by IFP and

"us as members of the ANC had to defend ourselves."

Now how did your father really die?

CHAIRPERSON: Where is this?

MR PANDAY: Paragraph 9 Exhibit E, Mr Chairperson. 9(a)

MR MAFU: That was a mistake. My father would not have been killed by the IFP because he was a member of that organisation. I think I did explain before that my father was an IFP member and for an ANC branch to be launched in our area we are the persons who went to join the UDF, therefore it is not sure that my father was killed by the IFP, he died of an illness.

MR PANDAY: But you also in your evidence in chief or I think it maybe under cross-examination previously or the day before indicated that your father was in fact killed by the IFP, they were being attacked?

MR DEHAL: No, I beg your pardon, that's not my recollection. He said his brother was.

MR PANDAY: That's what I can recall and I stand to be corrected.

MR DEHAL: No that's incorrect, it never was mentioned.

MR PANDAY: When evidence - a question was put to the applicant he mentioned that he was attacked two or three times his family and his father was also attacked.

MR MAFU: That is not true. I was attacked by the deceased on three occasions and on two occasions he tried to stab me with an assegai and on that occasion he came to my home together with IFP members and he instructed Mr Mavudla to shoot me but my mother intervened and threatened to take the matter to the police if they kill me. I was then told to leave that area and my house was destroyed. I was then forced to go live with the in-laws. I do not remember having said my father was attacked with me. This happened after he died.

MR PANDAY: Now why in your application form you said your father was attacked and killed by the Inkatha?

MR MAFU: That is why I say if that is in my form then it's a mistake. I do not remember my father being attacked by the IFP. He was an IFP member. My father was not murdered he died of an illness.

MR PANDAY: Thank you Mr Chairperson.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Does that conclude your questioning?

MR PANDAY: Yes Mr Chairperson.

CHAIRPERSON: Questions?

CROSS-EXAMINATION BY MR MAPOMA: Thank you Mr Chairperson.

When did you join the Operation Vula?

MR MAFU: I was taken to Sipho Mkhize in 1987 and we went to the Transkei in 1988. Our intention was to go to Lusaka but then we did not because we had to go to Transkei therefore I say it was in 1988 that I signed for this Operation.

MR MAPOMA: Then why in paragraph 8 of your application for amnesty did you say that you joined the military and Operation Vula in 1980?

MR MAFU: I must have made a mistake, it's 1988. I joined Operation Vula in 1988.

MR MAPOMA: Who are those who might have made a mistake?

MR MAFU: I may have made a mistake, I can except that I made a mistake but if I remember correctly I went to the Transkei in 1988.

MR MAPOMA: Who wrote this application for you?

MR MAFU: I filled this application form from page 1 to 10.

MR MAPOMA: When why did you say your father was killed in 1985 you said somebody must have made a mistake? You did not say that you yourself must have made a mistake?

MR DEHAL: Sorry, we don't have that on record and I don't think the Evidence Leader is purporting to be an expert. I think perhaps he should be asked as a question "did you not say this?" Because none of us heard that and the interpretation was different.

MR PANDAY: I think Mr Chairperson must give also due weight to the Evidence Leader in that obviously he is versed in understanding of the language. Now there may very well have been an interpretation coming across to us who don't understand Zulu obviously as opposed to the Evidence Leader who very well may understand the questioning.

MR DEHAL: May I beg to differ, I understand Zulu and I didn't hear that and it led me to - but put as a question I'd have no difficulty with that.

JUDGE DE JAGER: But he said that was a mistake?

MR DEHAL: Yes that's true.

JUDGE DE JAGER: Okay, who made the mistake?

MR MAFU: What are you referring to because we had discussed two matters one about my father and two about Operation Vula.

JUDGE DE JAGER: Your father being killed by the IFP as stated in your application and you said that's a mistake. Who made that mistake in your application?

MR MAFU: I would say it must have been me because I filled in the application form.

MR MAPOMA: Where in Transkei did you train?

MR MAFU: At Nkoso in Flagstaff. We were on a mountain known as Embanani in Nkoso.

MR MAPOMA: Trained by whom?

MR MAFU: By Sipho Mkhize.

MR MAPOMA: Who is Sipho Mkhize?

MR MAFU: He was a person training in the military, he was from Umbumbulu.

MR MAPOMA: Did he ever go to exile that Sipho Mkhize?

MR MAFU: Please repeat that question?

MR MAPOMA: Did Sipho Mkhize ever go to exile?

MR MAFU: I am not certain but he had close contacts with exiles. I think he used to go outside the country because sometimes they would tell us that he was from Angola and Namibia.

MR MAPOMA: Why did they choose Transkei as a base to train?

MR MAFU: It's not that we chose Transkei but it was the people who were from exile who decided on Transkei because our intention initially had not been to go to Transkei but to Lusaka but we were directed to go there.

MR MAPOMA: I'm asking this to your Mr Mkhize to be fair for two reasons. One, during 1988 ANC was banned, the Transkei security forces were so vicious against MK operations in Transkei and secondly the victims contest that you were trained at all. What is your comment?

MR MAFU: I wouldn't know about the group which went first and I don't know how they used to choose the spot to train us but we were trained in a certain place which was far from the police but then I wouldn't know why we were moved from one place to the other and how they got to know if that place was safe.

MR MAPOMA: Okay, let's leave that one. I suppose Boniso is the younger brother who died as a result of a car crash, is that correct?

MR MAFU: Yes that is correct, that's my brother.

MR MAPOMA: And then Stelaku, how did he die?

MR MAFU: Stelaku was killed by the sons of the deceased because they were revenging after we had killed their father.

MR MAPOMA: So the deceased had nothing to do with the death of Stelaku, is that correct?

MR MAFU: No he had already died because Stelaku was killed because he was one of the people who killed Mkhize.

MR MAPOMA: Is there someone else other than Stelaku who was killed as a result of the death of the deceased?

MR MAFU: Do you mean at home? No, no one at home. There are quite a number of people who died because of the deceased, I think some of them I would have been with them here today because I wanted them to come but then when I wrote a letter to invite them to come before this Committee I was told that they were killed.

MR MAPOMA: No, no, get my question correctly. My question is, in your locality you say a fight arose between the deceased's sons revenging the death of their father. Who else other than your brother did they kill in revenge to the death of your brother?

MR MAFU: No one was killed after Stelaku was killed because after the murder of Stelaku we revenged again until they fleed the place. There were other people who were killed but I wouldn't say that they were killed by the sons of the Mkhize's but they were killed because of political violence and they will flee to Ndwalale and other areas, nearby areas but not that they were killed by the sons of the deceased.

MR MAPOMA: I suggest that the feud was between your family and the family of the deceased and not the community that you are professing to make to this Committee. What do you say to that?

MR MAFU: That is not true, I've never quarrelled with the deceased. We worked together and we never quarrelled. We only became enemies when we became a member of an organisation but when I was growing up we were in good terms and good relations between me and the deceased. It was not families, I dispute that. Even today the deceased's family and my family they see each other and they greet each other, they don't have a problem. I will dispute that completely if they say the families were in conflict.

MR MAPOMA: Let us leave that one. When you met with the deceased on the road and confronted him about his witchcrafting, did you assault him at all?

MR MAFU: No I didn't but one could see that it was going to be easy for him to get hurt because people were armed. Some were armed with stones, some with sticks but at that very moment when I was questioning him no one put a hand on him.

MR MAPOMA: When exactly did the assault start on the deceased?

MR MAFU: The assault started after we told him to get inside the house to fetch the muti but then he didn't bring the muti, instead he brought weapons, that's when the assault started. It started there and that's where it ended.

MR MAPOMA: So is it your evidence that he was only assaulted when he went out of the house with weapons and it's only then that he got assaulted, is that what you're saying?

MR MAFU: Yes, nothing else, it was there.

MR MAPOMA: How did he happen to get injuries on his legs, on one of his legs?

MR MAFU: He got injured there when stones were being thrown at him, he was never assaulted anywhere else except when he came out of the house. In fact I personally thought that he had fractures all over his body because stones were all over his body.

MR MAPOMA: You know, I'm asking this question because Kenneth, if called, will say that when you arrived with his father he had already sustained some injuries because of the assaults on him, what do you say to that?

MR MAFU: That will be a terrible mistake. His father came there when he didn't have anything except that he was scared, he had perspired and he was wet, not that he had been beaten or assaulted.

MR MAPOMA: I will leave it there. Thank you Mr Mafu, thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR MAPOMA

FURTHER CROSS-EXAMINATION BY MR PANDAY: Mr Chairperson, before you allow Mr Dehal the chance to cross-examine if I may just put a few questions to the applicant? Thank you.

Mr Mafu, is that correct that Mr Mkhize was attacked because he was killing or oppressing the ANC?

MR MAFU: Yes it is true.

MR PANDAY: Now paragraph 10(a) the Exhibit E reads the following, you were asked to state your political objective that was sought to be achieved and you say the following

"We were oppressed by the Amakosi of the area. Our objective was to be liberated"

and you go on to say in paragraph 10(b):

"We were attacked and arrested by the police. We were made to pay some money to the Amakosi in the area."

Now why didn't you attack the Amakosi? He was oppressing the ANC?

MR MAFU: Police and Amakosi of that area were together with Mr Mkhize and if I remember very well the comrades had just killed Induna and he had and the chief had fleed the place and also another Induna, Kunumene had been killed therefore the chief was not around, he had fled. Mr Mkhize as well, he was together with the Amakosi and the Indunas.

MR PANDAY: And who was the Amakosi?

MR MAFU: Samiel Mavundla.

MR PANDAY: Is that Cyril Shezi's father?

MR MAFU: No, Chete Mavundla is another one, it's another Induna.

MR PANDAY: Is he the Induna of the same area

MR MAFU: Yes at that time.

MR PANDAY: And then which Induna was killed in the area?

MR MAFU: The Induna from Emkulu. I am from Samwene. The Induna which was killed was Induna was Emkulu.

MR PANDAY: Now why did you kill that Induna?

MR MAFU: He was one of the people who was fighting comrades, he was like Mr Mkhize, he was fighting the comrades and the comrades decided to kill him. These were Indunas who were promoting the IFP and who were fighting the comrades of the area therefore comrades decided to kill them.

MR PANDAY: And Cyril Shezi?

JUDGE DE JAGER: Did you assist in that killing?

MR MAFU: No, I wasn't present because it was an area nearby my area and I wasn't present but if I was present I would have accompanied them. I do have this information because we as comrades we used to report such matters.

MR PANDAY: Thank you Mr Chairperson, nothing further.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Any re-examination?

MR DEHAL: None at all, thank you.

NO RE-EXAMINATION BY MR DEHAL

JUDGE DE JAGER: You didn't know whether Kenneth would be at home on that day when the killing took place?

MR MAFU: I basically thought that it was going to happen no matter who was there whether Kenneth was there or not there but then it basically didn't matter to me whether he was going to be present, I didn't even think about it whether he was going to be there but even though it was during school days and during school hours but he was present.

JUDGE DE JAGER: Yes and if he was - and who would have poured - where did the petrol come from?

MR MAFU: We brought the petrol. In the meeting we gathered everything we will need in order to kill Mr Mkhize and we were given all these things, when we left the meeting we had everything with us.

JUDGE DE JAGER: Did you carry the petrol?

MR MAFU: No at that time it wasn't me. I took the petrol from Bonga Novela.

JUDGE DE JAGER: Now why didn't you pour the petrol?

MR MAFU: It was decided in the meeting that if ever we were to find another family member at the Mkhize's household then we were going to instruct that member because his sons were ANC therefore we were going to instruct one of his sons ...(intervention)

JUDGE DE JAGER: So you would force one of his sons, any one of his sons to pour the petrol on him? Was that what you decided to do?

MR MAFU: Yes, that's how it happened because we had decided so that one of the family members should put petrol.

JUDGE DE JAGER: Right and if a family member, if he wouldn't do it, what would you do to that member? If he wouldn't obey you, what would you do to him?

MR MAFU: We were going to pour the petrol ourselves, we were not going to kill that individual because it was not decided so but we thought that it was going to be difficult for anyone to refuse because at that time comrades were dangerous and whenever comrades ordered you to do something it wasn't going to be easy for any person to refuse.

MR SIBANYONI: The request that one family member should pour petrol, apart from taking the blame away from you and putting it to his family member, did it have any other significance?

MR MAFU: No.

MR SIBANYONI: You said during those times comrades were dangerous. When you decided upon asking one of the family members to pour petrol did you expect them to agree or you foresaw that you may refuse?

MR MAFU: Yes.

MR SIBANYONI: I didn't understand your answer?

CHAIRPERSON: What do you mean by yes? Did you expect him to do it or did you expect him to refuse?

MR MAFU: Anything. I expected that he was going to say yes or no but I believed that since we were many it was going to be difficult for that person to say no. He was going to do that and we were going to get away with it because if we implicate a family member then we aren't the one that did that.

MR SIBANYONI: Thank you Mr Chairperson.

CHAIRPERSON: Right, thank you.

WITNESS EXCUSED

MR DEHAL: I have no further witnesses on behalf of this applicant. I do however notice it is twenty five past one and I was cautioned about the 1 o'clock time.

JUDGE DE JAGER: You should have been cautioned about the 3 o'clock time because members and staff members are booked on the 3 o'clock flight?

MR DEHAL: This matter is not in my hands, Mr Chairperson.

JUDGE DE JAGER: We'll have to continue through the lunch hour.

MR DEHAL: I have no difficulty with that, yes.

CHAIRPERSON: Right you have concluded your ...(intervention)

MR DEHAL: Indeed. Any evidence being led by the victims?

MR PANDAY: Yes Mr Chairperson, we call the son of the deceased, Kenneth Mkhize.

MR DEHAL: Mr Chairperson, could I whilst he's being called and sworn in seek the indulgence just to quickly answer nature's call?

CHAIRPERSON: Oh yes.

MR DEHAL: There's no need for an adjournment, thank you.

CHAIRPERSON: Well you may not be the only one in that position, I think one tends to forget the people who have to work to make the thing go, we will take a very short adjournment.

MR DEHAL: I'm indebted to you.

COMMITTEE ADJOURNS

ON RESUMPTION

KENNETH MKHIZE: (sworn states)

EXAMINATION BY MR PANDAY: Mr Mkhize, is it correct that you're the son of the deceased?

MR MKHIZE: That is correct.

MR PANDAY: And that on the 16th January 1990 you were residing with the deceased?

MR MKHIZE: That is correct.

MR PANDAY: Right, is it also further correct that you were a witness in the trial that ensued after the death of your father?

MR MKHIZE: That is correct, I was a witness.

MR PANDAY: Now during the period of 1990 did you belong to any political party?

MR MKHIZE: Yes I was in the ANC.

MR PANDAY: And did you remain with the ANC?

MR MKHIZE: I did support the ANC and although I was still young it did appeal to me as an organisation.

MR PANDAY: And did you continue to support the ANC and attend all the meetings?

MR MKHIZE: I would attend some meetings.

MR PANDAY: And did you eventually stop?

MR MKHIZE: Yes, there came a time when I stopped attending meetings because my father disapproved of that as well as the fact that I was still at school so I had to concentrate on my studies.

MR PANDAY: Now was your father a member of the ANC or any political organisation?

MR MKHIZE: My father was not an ANC member. In fact he was apolitical, he was just a church-goer.

MR PANDAY: Did your father belong to the IFP at any stage?

MR MKHIZE: I cannot say for certain that he was a member of the ANC because at that time there were no political organisations in the area but the area was dominated by the IFP.

MR PANDAY: Can you just report your answer, I don't think it was correctly interpreted? You said you are not certain whether he was a member of which organisation?

MR MKHIZE: I do not think he belonged to any political party because there were no political organisations at the time. There were Amakosi because that was a tribal area but I cannot say whether he was an IFP member or not but he was a religious person.

MR PANDAY: Thank you. Now Mr Mkhize, do you recall the day that your father was killed?

MR MKHIZE: Yes it was on a Tuesday.

MR PANDAY: Can you explain to us the events that took place on the day in question and which led to the death of your father?

MR MKHIZE: I was at home on that day with my younger brother. My father was not home. We just saw him coming home in the company of comrades. They were in possession of his clothes, his umbrella and a hat as well as a coat. When they arrived I asked them what seems to be the matter, why are you driving my father in this fashion and they said my father practised witchcraft so I said to them they must select four people who will go with me so that we search all the huts and see if we will find any herbs. We did so and we and did not come across any bags. We only found a bag that contained spanners and as we came out of the huts I discovered that my father was being assaulted, he was lying on the ground and his legs were broken and he had wounds on his head as well.

MR PANDAY: On being questioned they said they believed the father was practising witchcraft. Did they mention any incident in particular in which witchcraft was used?

MR MKHIZE: They did not mention any incidents.

MR PANDAY: Now after they had come out of and seen them bearing your father what went on thereafter?

MR MKHIZE: I discovered that they had already assaulted my father. Some of them said he should be left alone because they did not find muti. Mr Mafu then responded, said that no, they should continue killing him. They then gave me petrol to douse my father with. My father then said I should do as they order because if I do not we'll both be killed. I then did so. Thereafter Mr Mafu gave me a match to set the body alight. I threw this down and fled. Afterwards I saw them fleeing and I returned home. On my arrival I found my father on fire. I went inside the hut and took two containers containing water and tried to put the fire out. Shortly thereafter my brother and my mother arrived and he was rushed to hospital and he died there.

MR PANDAY: Now you mentioned that the others said that they must stop hitting your father, is that correct?

MR MKHIZE: That is correct.

MR PANDAY: And that Mr Mafu insisted to continue?

CHAIRPERSON: Mafu insisted they should kill him.

MR MKHIZE: Yes.

MR PANDAY: Do you have any idea why Mafu insisted to kill your father?

MR MKHIZE: I do not really have that knowledge because I do not know what the source of the conflict between because they had never quarrelled before.

MR PANDAY: Now Mr Mafu alleges that your father was involved with politics and was using witchcraft against the ANC. Can you comment on that?

MR MKHIZE: That is not correct because I remember that the ANC was launched in 1989 and there was no conflict that erupted in the area. The war only started after my father's death, he was not in the IFP.

MR SIBANYONI: Was it launched as the ANC or was it launched as the UDF in 1989?

MR MKHIZE: It was the ANC.

MR SIBANYONI: But it was still banned during those years, organisations were only unbanned on the 2nd February 1990, how was it possible to launch an ANC when it was banned?

MR MKHIZE: At that time they called themselves ANC. Mr Mafu alleges that my father was an informer in collusion with the police. The police did not come to that area because there was no war going on there and my father was never an informer.

MR PANDAY: Mr Mkhize, did you attend the court case where Mr Mafu was being tried for the death of your father?

CHAIRPERSON: He's told us he was a witness, hasn't he?

MR PANDAY: Oh, sorry Mr Chairperson.

Now - no, no, I'll rephrase the question. You mentioned in your statement to the TRC that you learnt at the court that your father caused the death of Mr Mafu's brother by using muti?

MR MKHIZE: That is correct, that is what I heard in court in Scottsburg.

MR PANDAY: You also mentioned that Mafanalo's mother denied this by saying that her son had died in a car accident. Do you recall that?

MR MKHIZE: Yes that is what she said.

MR PANDAY: Do you know if the mother blamed the death of her son in any way through the use of muti?

MR MKHIZE: From what she said in court she did not think that her son's death was as a result of being poisoned with muti. She explained that her son had been knocked down by a car. She had been with her son and he had walked straight into a car. She did not mention muti.

MR PANDAY: Thank you Mr Chairperson. Thank you Mr Mkhize.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Cross-examination?

CROSS-EXAMINATION BY MR DEHAL: Thank you Mr Chairperson.

When the ANC was launched in 1989 even at the level of it being understood as being the ANC, it must have been very secretive and operated underground, isn't that correct?

MR MKHIZE: When the ANC was launched underground I was not involved but when they toyi-toyied I did take part.

MR DEHAL: And did the toyi-toyiing start in 1989?

MR MKHIZE: Yes it did.

MR DEHAL: And did you join in 1989 because you said you started when the toyi-toyiing started?

MR MKHIZE: I was saying yes I did join in 1989 because I would be present.

MR DEHAL: And Mr Mafu, was he - sorry, did you also understand him as being a member of the ANC as well?

MR MKHIZE: We were in the same organisation because I remember one instance where we had a meeting and somebody came with a piece of paper and claimed that he had been upon that at Nyandezulu to become the chair therefore he was one person who was prominent.

MR DEHAL: Sorry, who was prominent? Mafu or the person who came in with the paper?

MR MKHIZE: Yes.

MR DEHAL: Sorry, I think the interpretation was short, the answer was long?

CHAIRPERSON: Mafu?

MR DEHAL: That's how I understand it yes.

MR SIBANYONI: Did Mafu arrive with the paper?

MR MKHIZE: Yes he did have a piece of paper that he said was given to him at Nyandizulu, that he was going to be the chair of our area.

MR DEHAL: You do not deny of course therefore that he was the chair of the ANC Youth League of your area?

MR MKHIZE: I would not deny it.

MR DEHAL: And do you know whether Mr Mafu had any training as a cadre, as a trained soldier under MK, under Operation Vula somewhere in Transkei or in Umtata?

JUDGE DE JAGER: He wouldn't have the knowledge out of his own knowledge unless he trained with him. He might have heard it from somebody?

MR DEHAL: That's the question, yes.

MR MKHIZE: I do not have knowledge or I do not remember him going for training.

MR DEHAL: But if it is told to you that Mr Mafu had training you wouldn't be able to dispute that, wouldn't you?

MR MKHIZE: I would not dispute it because I heard that for the first time here, I didn't know about it.

MR DEHAL: Do you know Mr Cyril Shezi?

MR MKHIZE: Yes I do.

MR DEHAL: Does he feature prominently in the rank and file of the ANC in your area? Sorry, did he at the time?

MR MKHIZE: I do not remember him in armies at the time.

MR DEHAL: You see, both you and Mr Mafu were in youth league, Mr Cyril Shezi I understand was not in the youth league he was in the senior structures of the ANC in your area. Are you able to comment on that?

MR MKHIZE: Yes I don't think that Mr Mafu and myself were in the youth league but I did not know anything about Mr Shezi at the time because as I have explained before I did not attend meetings regularly because I was still young. Perhaps he did attend some of the meetings but I'd never seen him.

MR DEHAL: And Mr Bheki Cele, do you know him?

MR MKHIZE: No I do not, I've only seen him on TV.

MR DEHAL: Would it be correct to say that both your family and that of the applicant's family were in fact close, you spoke to each other, the applicant visited your home regularly, on occasions assisted your family until the applicant joined the ANC when relations soured?

MR MKHIZE: That is true. We were neighbours and we were close. Sometimes he would help us in ploughing the land. We were very close with Mr Mafu.

MR DEHAL: You would agree with him that he says members of your family and him, the applicant, grew up together?

JUDGE DE JAGER: Because they were neighbours and he helped with the ploughing so it's obvious they grew up together.

MR DEHAL: I accept that, thank you.

Do you know whether the Amakosi had a large membership in your area?

MR MKHIZE: Yes I do have that knowledge because if the Inkosi called a meeting people would go attend such meetings so I'll say yes, the Amakosi had followers.

MR DEHAL: Did you ever understand your father as being a member of the Amakosi?

MR MKHIZE: My father was not an Inkosi but if the Inkosi calls a meeting you would attend whether you are a follower or not because he would call a meeting for a specific reason to discuss issues effecting the community so every man had to attend.

MR DEHAL: And your father did he attend these Amakosi meetings?

MR MKHIZE: Yes he would.

MR DEHAL: Was the ANC opposed to the Amakosi?

MR MKHIZE: I cannot say with certainty that they opposed Amakosi because the organisation was only launched towards the end of the year because they started with the toyi-toyi in October. As time went on in 1990 my father was killed by the ANC and they also burnt my home as well as confiscated our cattle. We were forced to leave the area and move to Bopoye. I do not know after that time if the ANC would attend meetings called by the Inkosi.

MR DEHAL: Was your father opposed to you being a member of the ANC and continuing to attend ANC meetings?

MR MKHIZE: As I explained before he was a very religious person.

MR DEHAL: Can you tell what about the ANC made him find it unacceptable to his religious practice or can you not?

MR MKHIZE: What I can say is that the ANC did not enjoy support from the older people, it was only in organisations that was supported by youngsters and when they held meetings all the people did not attend therefore I don't think he would have been in a position to go attend such meetings therefore I cannot say that he did not like the ANC or was against the ANC.

MR DEHAL: Mafu says that there was a meeting of the ANC the day before your father was killed, do you know of that meeting and did you attend that meeting?

MR MKHIZE: I do not remember such a meeting where older people were involved it was just the youth. Maybe that took place after my father's death.

JUDGE DE JAGER: Was there a meeting of the youth the day before your father was killed?

MR MKHIZE: Yes there was a meeting held. It was on a Thursday, I was present at that meeting. Mr Mafu then said to us we should go home because we were younger, that is how they managed to ensure that we're no longer part of the discussions when my father's issue was discussed. That meeting was held on a Thursday and they came to kill my father on Tuesday therefore it's obvious that I was being chased away so they could be free in discussing my father.

MR DEHAL: Do you know why your father was discussed at these meetings?

MR MKHIZE: No I did not have knowledge thereof.

MR DEHAL: Did you not suspect they were intent on executing your father?

MR MKHIZE: No I did not suspect that because my friend Babalu once approached me and asked me why I did not attend meetings and longer and he advised me that if I stay away from meetings my father will be in danger. I did not take much notice of that. Thereafter I attended a meeting that was held on a Thursday and I was told to leave so that they could discuss my father.

CHAIRPERSON: Did they tell you they were going to discuss your father?

MR MKHIZE: No they did not, they just told us we were young we should go home.

JUDGE DE JAGER: So, did you draw the conclusion that asked you to go home because they wanted to discuss your father after he'd been killed or when did you draw that conclusion?

MR MKHIZE: I concluded that after my father's death that they were chasing me away so that they could discuss my father because shortly thereafter they came to kill my father.

MR DEHAL: As a matter of interest when Babalu received this report from you about - sorry may I rephrase that? When Babalu had told you that your father would be in danger since you were not attending meetings is it not correct that you had told Babalu that your not attending these meetings was because your father had stopped you from doing so?

MR MKHIZE: I did explain to him that my father had forbidden me to attend meetings because we were having exams so if I attended meetings I would be in danger of failing and my father was ...(indistinct), he survived on a pension, therefore I could not afford to fail just because of politics.

That is why I did not attend those meetings, I concentrated on my studies.

MR DEHAL: I see the judge in his judgement, you know, the judge during the criminal trial had mentioned on pages 26 and 27 of this bundle, the last line at the bottom of 26, the first line on top of page 27, the following. If I may just read it and tell me whether you agree with this?

"Babalu Mkhize was a follower but not a member and he took no part in the making of decisions."

That's follower of the ANC and not member of the ANC and took no part in the making of decisions?

MR MKHIZE: Yes Babalo was a supporter and we were in the same boat because we both did not have membership cards.

MR DEHAL: In your statement contained in the bundle on page 18 you say that - referring now to the crowd that came by to execute your father, you called them comrades, you called them ANC comrades, you say this consisted of Mfanalo Mafu and more than 50 other ANC comrades. If it was suggested to you there were a total of about 200 in the group of ANC comrades who had come there to kill your father would you dispute that?

MR MKHIZE: I would not dispute it because there were many people there and you would not really have the time to check the number of the people there considering the nature of the problem that they had brought.

MR DEHAL: Generally from your knowledge of these meetings you attended from the way crowd behaved this ANC crowd behaved and the things these comrades and Mafu told you before they executed your father thereafter, would you say that - or would you agree that the act of killing your father was a political act in the execution in the pursuance of a decision taken by the ANC at their meetings?

MR MKHIZE: I would not say that my father's death had something to do with politics but I mentioned before my father was a religious person, he was not politically active.

MR DEHAL: How old were you at the time your father was killed?

MR MKHIZE: I was sixteen.

MR DEHAL: And where were you schooling?

MR MKHIZE: I attended Giandizoli School.

MR DEHAL: Is that in the area that you lived in?

MR MKHIZE: Yes.

MR DEHAL: Were you very close to your father?

MR MKHIZE: Yes we were and I was still with him.

MR DEHAL: Now it is obvious that in those days because the organisations were all banned the organisations were secretive about their activity and no doubt your father would have been secretive about his political activity as well and if I were to suggest to you that you did not know of your father's various political activities firstly because you were young, sixteen years old and secondly because in the nature of things he would have been secretive about it, you wouldn't be able to dispute that, would you?

JUDGE DE JAGER: There was no real evidence that he's been involved in a political organisation having meetings or whatever? The main emphasis was on his witchcraft?

MR DEHAL: Here I'm referring to the IFP membership and police informer aspects and all of that.

Would you care to comment?

MR MKHIZE: Would you please repeat?

MR DEHAL: Yes, you see in those days the organisations were all unbanned and as you heard Mr Sibanyoni say, these political organisations were only unbanned in February 1990 at the earliest.

JUDGE DE JAGER: Not the IFP? It wasn't banned.

CHAIRPERSON: It was a banned organisation was it?

MR DEHAL: Not the IFP, yes.

CHAIRPERSON: No.

MR DEHAL: Sorry. Apart from the IFP, I'm talking of ANC, MK, Operation Vula, etc. But despite that, even persons in the IFP and the ANC were very secretive about their political activity because of the war going on between those two organisations. Now since you were sixteen years at the time is it not possible that because you were young and because your father may well have been secretive about his political activity if any, you did not know about them?

MR MKHIZE: Yes I was still young and I was sixteen but it doesn't mean that I was a "duimpie", I could see things and like I'm saying here today that he was a religious person, he never told me he was a religious person, this is what I've seen. I've seen my father, he was never involved in politics.

MR DEHAL: In the area you lived in was there any activity in the IFP, were there IFP members that lived in that area?

MR MKHIZE: No I wouldn't have information about that, all I know is that there was IFP but I won't have knowledge whether they were active. It was quiet in that area and we were under Amakosi.

MR DEHAL: Sorry, just bear with me? Mavundla, did he feature in the IFP at any level?

MR MKHIZE: No, Mavundla a chief of that area.

MR DEHAL: Was he a member of the Amakosi?

MR MKHIZE: Like I said I was a chief, a chief is a member of Amakosi.

JUDGE DE JAGER: Isn't the Amakosi the members of the royal family, the Amakosi?

CHAIRPERSON: The chiefs.

JUDGE DE JAGER: The chiefs.

MR DEHAL: Ja, correct. And it's not true that the Amakosi was supportive mainly of the IFP?

MR MKHIZE: I would say it's true.

MR DEHAL: Sorry, I only mentioned Mavundla, was Samuel Mavundla and Chete Mavundla both members of the Amakosi?

MR MKHIZE: Samuel Mavundla was a chief, he was the chief of the area, the Amakosi were under him.

MR DEHAL: And Chete Mavundla?

MR MKHIZE: Chete Mavundla was an Induna.

MR DEHAL: And finally, I think you've agreed this, I just want to end up with that, you say your father attended Amakosi meetings, your late father?

MR MKHIZE: Yes I said so because if the chief calls for a meeting he calls for everyone in that area in other words the residents of the area. My father was one of the residents in the area so he will attend those meetings.

CHAIRPERSON: As I understood what you said and you've just confirmed it to me, your father did not attend meetings of the Amakosi, he attended meetings called by the Amakosi of the residents of the area?

MR MKHIZE: Maybe I need to repeat my father will attend to meetings whereby a chief called the residents of the area to come. If the chief says the residents should come to a meeting then my father would attend that meeting but he was a very religious person and also a resident of that area because if a chief calls for a meeting it doesn't discriminate. If he says the residents then my father is also a resident of the area.

MR DEHAL: Sorry, perhaps I should just ask following from that, would you agree that the ANC members in that area both elder and junior did not attend these meetings called by the chief, the Amakosi meetings?

MR MKHIZE: I will not agree with you there because if the chief calls for a meeting never once did he call for youth. He will call for elderly or the older people of the area. That is the time whereby the ANC was present but it was mainly the youth. Even myself I was one of the ANC youth, we were not fighting with anyone we were just toyi-toyiing at that time and no one threatened to fight with us, even though one could assume that the youth were ANC and adults were IFP but there was no violence.

MR DEHAL: Mafu tells me and correct me if I'm wrong on this, if he is wrong on this, that because the Amakosi were seen as being supporters of the IFP and the ANC were not friendly with the IFP, in fact they were fighting with each other, generally throughout the country, that the ANC youth consisting of Mafu and yourself did not attend Amakosi meetings as in fact you regularly attended the youth ANC meetings?

MR MKHIZE: As I've already explained that we as youth we never used to attend meetings which were called by the chief because whenever the chief called a meeting it was for adults but at that time there was no war or fights between the IFP and ANC. When the fights broke out in the area Mafu was already in prison. At that time when this incident occurred there was no fights.

MR DEHAL: I have no further questions, thank you Sir. Thank you Mr Mkhize.

NO FURTHER QUESTIONS BY MR DEHAL

CHAIRPERSON: Any re-examination?

MR PANDAY: No Mr Chairperson.

NO RE-EXAMINATION BY MR PANDAY

MR MAPOMA: I have no questions Chairperson, thank you.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

MR PANDAY: Mr Chairperson, that is the only witness the victims intend calling.

CHAIRPERSON: And leader of evidence?

MR MAPOMA: I have no evidence to tender Chairperson, thank you.

CHAIRPERSON: Gentlemen, what do you think we should do now?

MR DEHAL: Sorry Mr Chairperson, if time permits I don't intend to be unduly long but if we could address at this stage and finalise the matter, I'd be agreeable to doing so.

CHAIRPERSON: What's the position?

JUDGE DE JAGER: Yes we've changed our flights until half past five this afternoon, so you could continue as long as you want to.

CHAIRPERSON: Shall we have address now?

MR DEHAL: May I proceed?

CHAIRPERSON: Very well.

MR DEHAL IN ARGUMENT: Thank you. Mr Chairperson, it is the evidence of both the applicant and that indeed of the deceased's son that we have to consider and apart from that a chasm of documentation that has unsurfaced itself. I submit that the applicant has been very thorough in his testimony, he has been one that has testified clearly with no ambiguity, with no doubt, whenever asked a question he answered forthright, he answered directly, he answered with no hesitation. Indeed he made some mistakes, he conceded the mistakes he made. It has a ring of truth about a person who testifies and concedes openly his own mistakes. There was lengthy cross-examination that ...(intervention)

JUDGE DE JAGER: Could it be a mistake to say "my father was murdered by the IFP" and then come and say "oh, this is a mistake I've made". Can it be a mistake?

MR DEHAL: In my respectful submission yes, especially considering that his brother was killed by the IFP in a reconciliatory attack in a response attack from this ...(intervention)

JUDGE DE JAGER: His father died of natural diseases, he himself said so?

MR DEHAL: Yes.

JUDGE DE JAGER: Now how could he make the mistake by saying the IFP killed him? That can't be a mistake? It was misleading?

MR DEHAL: It's misleading yes I agree. In fact it was ...(intervention)

CHAIRPERSON: Deliberately so because as my colleague has said I do not believe that anyone would make a mistake about how his elderly father died when he had told us he took a long time to die, he didn't think he knew what things were happening about him when he died, he was obviously suffering from a long disease, you don't make a mistake about that sort of death?

MR DEHAL: I certainly wouldn't yes, but then we with respect - are not to take an armchair approach with this applicant, he is not an educated man, he's not one who speaks English as well, he is not one who is familiar with all these proceedings. You know, he wrote that in Zulu I agree. I accept immediately it's misleading but one must also have regard to the fact that his brother was killed by the IFP as he says, that I'm not saying that he suggested this as an excuse, it's an excuse that goes through my mind as a possibility of a person languishing in prison, endeavouring to complete a form in his own handwriting, desirous of obtaining amnesty. But then, if that's what he said he could well have perpetuated that lie by saying it here, I mean there's nobody to gainsay how his father died? He could well have sat there whilst testifying and said "I didn't lie, I didn't make a mistake, my father was killed by the IFP". No witnesses were going to be called, the bundle shows no evidence against him on that.

On the other mistake, again he openly said yes, I made the mistake and that is 1980 as opposed to 1988. There has been much confusion during the time when the applicant testified, that emanated from the various documents that featured. I consulted with him at length during the periods of the intermission in these matters and I think I must record that this is an applicant who was heavily questioned by me about various documents before he even testified. So when he came to testify he came in after all of that badgering. Cross-examination was not as simple, pleasant and straightforward, it was heavy and he stood well. The Evidence Leader asked him some very pertinent questions, he stood well on those.

The same can be said indeed about the deceased's son but the fact that you have two good witnesses who are complimentary in many respects about the political aspects, in itself shows that the deceased's sons evidence is corroborative of the applicant's testimony insofar as the existence of the ANC is concerned, when it came to be launched, it's opposition to the IFP, the existence of the Amakosi, the fact that there were meetings at which the deceased was discussed and that ANC comrades in the main, in fact totally ANC comrades had arrived at the house to execute the father and that the execution was done by ANC comrades in the main, Mafu. Now all of that's common cause so the political content seems not to be an issue, I can't see full disclosure as being an issue, it seems to me that apart from the errors that the applicant has made which he has conceded however misleading they may be, a test for the grant of amnesty it seems has been abundantly complied with.

On the act itself, compliance with sub-section 20(i)(a)(b) and (c) of the Promotion of National Unity and Reconciliation Act 34/1995 seems on both sides to be abundantly complied with. There seems to me little reason why I should address any further on any difficulties that are evident so for the present that is my address, those are my submissions, I submit respectfully that amnesty should be granted and unless my colleagues take me by surprise perhaps I can deal with things thereafter. Thank you.

MR PANDAY IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, before one goes into the merits of the application, just to deal with the documents that surfaced. I accept that you don't have confirmation as to the posting and the receiving and the receipting of documents but if one had to peruse those documents it is so strange that the fax appears to be almost identical as far as how the brother was killed, what political problems took place in the area but the moment the document seemed to have had a slight twist as to what - to some other event, that was disputed.

Now Mr Chairperson, we are dealing with a person that went to many prisons. It is strange only the documents that worked in his favour were accepted to be his documents. Now if one has to look at the probabilities, the prisoner has been to Ncome, Pretoria, Westville, Pietermaritzburg. Now for one to follow his trail and to now start implicating him unnecessarily or deducing evidence that may be unnecessary or to his detriment, that seems a bit farfetched for one to accept or just dispose of these documents and therefore I ask the Committee to consider the documents in great detail before one disregards such documents.

Now on the merits if one has to accept there's a political situation in the area that by far may be a problem to dispute then the second test that needs to be followed or fulfilled is that was there full disclosure? We've heard the evidence of the victim's son that his father was not a political activist. Now the victim's son indicates that he was sixteen years old. Now as a sixteen year old boy he is quite aware as to what is going to be the position in his household. He would be able to inform us as to whether there were any political activities or not. He himself went to the stage to say that "my father disapproved with my political affiliation because I was in school" and he quite adamantly pointed out that his father was apolitical. Now he obviously what was the position in his household.

Now the applicant on the other hand when faced with why he questioned the deceased on the death of his brother didn't give a decent enough explanation. He was sent there on a political objective. The political objective was to kill the deceased due to his political interferences and he didn't see fit to question him on any other interference, that of being an informer, that of using witchcraft against the ANC but merely questioned the deceased on the death of his brother. At no stage did he ever indicate in his evidence when being cross-examined that he was questioning the deceased on any acts against the ANC. Now as Mr Chairperson quite correctly pointed out, the applicant now says he seems to have made a mistake as to how his father was killed. Now that I find strange, he insisted that all the forms that were filled out were filled out in Zulu, he filled it out in great detail by himself and as such he would have been able to account for the sequence of events that he is applying for amnesty and what led to his amnesty application. Now he seems to say there was a mistake. Then there seems to be a mistake as to why he didn't inform the Committee that the deceased was an informer. Then when questioned again on his translation about the Amakosi being involved he seems to have committed that doubt as well in the statement.

Now the entire sequence of events that took place on that day purely related to the death of his brother. There seemed to be no indication as to why he was going there for the political objective. He didn't question the deceased on any political interference in the area.

JUDGE DE JAGER: And the brother's killing, no politics were - even if we accept that witchcraft might have been a factor there, there's no allegation that the witchcraft used on his brother if that would be so was in any way connected with politics.

MR PANDAY: Politics, the brother was eight years old, the brother was not even politically active at that stage.

Right now Mr Chairperson, it must be pointed out that only under cross-examination that the applicant seemed to include so-called important aspects, that he was attacked, his family was attacked and if I may point out that my learned friend indicated that his brother was later killed by the IFP, that would indicate that there was no evidence of that nature. There were two brothers, one was killed in an accident and the other one was killed as a revenge attack on the deceased. That was the evidence led. There was no evidence led that either of his brothers were killed as a result of the IFP attacking them.

JUDGE DE JAGER: Yes but he himself was a member of the ANC and his brother was a member of the ANC?

MR PANDAY: Yes but in regards to the second brother that was killed ...(intervention)

JUDGE DE JAGER: Yes but the second brother was killed by the children of the deceased?

MR PANDAY: As a revenge attack.

JUDGE DE JAGER: Yes.

MR PANDAY: So there was no evidence to the effect that ...(intervention)

JUDGE DE JAGER: The children of the deceased were members of the IFP.

MR PANDAY: Mr Chairperson, after weighing all the evidence and that of the applicant and the victim's son it is my respectful submission that the applicant is merely trying to shadow his attack on the deceased as being that of political. We also received an affidavit by the implicated person, I concede that he has not testified but one must give weight to that.

JUDGE DE JAGER: But if that was so why should 50 or 200 people accompany him to attack the deceased?

MR PANDAY: Well Mr Chairperson as you said it may very well have been a group that was created or led by the applicant himself.

JUDGE DE JAGER: Yes they were led by him but were they ...(intervention)

CHAIRPERSON: Would they have gone to attack a devout Christian?

MR PANDAY: Well unfortunately Mr Chairperson we haven't had evidence as to whether the group was informed by any other means except for the version that we have of the applicant. Now we have to assume that the group that went out there went out on a political objective. Unfortunately the only evidence led here is that of the applicant and the sad part of it all is that the applicant upon cross-examination even in his statements submitted Exhibit A, merely emphasised the death of his brother. Had the applicant at one stage emphasised the political motive for going to kill Mr Mkhize, one may have accepted it. It's our respectful submission that this applicant has not made full disclosure.

CHAIRPERSON: I have just thought of a possible problem which I should have put to the applicant perhaps, that the reason for saying as I understand it, that the deceased was involved in the killing of his brother was because the deceased was alleged to have said "yes, if he had been working for me it wouldn't have happened" or words to that effect and it was on that it was based that there was witchcraft involved and what have you. But may the answer not be because we've heard now they ploughed together, they worked together, that when the brother was working for him he stayed and looked after the cattle on Saturdays and Sundays and didn't go to the village where he was run over by a motor car and that it's simply a statement of fact by the deceased that if he'd still been working for me he wouldn't have been run over? No indication that it was as a result of any action by the deceased?

MR PANDAY: Now Mr Chairperson, as you pointed out the applicant now merely interpreted what was said by the deceased and automatically linked witchcraft with it. He didn't give any other suitable examples or situations where witchcraft was used against the ANC except for the death of his brother. It's my respectful submission that the actions of the applicant were purely out of revenge and he wanted to revenge the death of his brother and as such does not qualify for amnesty in this matter. Thank you.

MR MAPOMA IN ARGUMENT: Mr Chairperson, I just want to respond to what the Chairperson has just raised now, the other possibility of explanation to the effect that the child must have been killed because had he not been on the road that would not have happened.

Chairperson, it will be recalled that the applicant in his testimony made it clear that out of the utterances of the deceased they formulated a certain idea that he might have bewitched the young boy. In fact he even went on to say that they had a meeting as a family about the utterances of the deceased person and in his affidavit on paragraph 7 he says:

"I had heard rumours from that my family that my brother who was killed in an accident a few days earlier was bewitched by the deceased."

So in a way Chairperson, this gives a clear mindset on the part of the applicant that the deceased was to condemn for the death of the younger brother, that was what was happening in the mindset of the applicant.

And Chairperson, one other point I want to raise, it will be recalled that the applicant in that area was a person who says he was a commander or a leader of that area of the ANC, an ANC which was newly launched at that time. During 1990, Chairperson, there was such excitement about the ANC and there were incidences in our country which we were aware, a person who seems to prominent about the ANC to be able to instigate the mob who'd use that for personal gains, to woo the masses, to go and do what will suit that person as a person. This is a tried example of what probably what might have happened in this case hence a mob of people. It is clear from what has been given here that the applicant to a certain extent did have a command on a number of youth there, that he agitated the position to the youth into believing what he made them to believe does not take away the fact that he was beater about the deceased, condemning him for the murder of his brother. Thank you Chairperson.

JUDGE DE JAGER: But even so Mr Mapoma, would that relate to a political situation?

MR MAPOMA: It would not Chairperson, it would not, that's my point. It would not, it would only advance personal revenge, hiding behind witchcraft. That's my point Chairperson, thank you.

MR DEHAL IN REPLY: May I just make three points in response?

Firstly, in response to the Evidence Leader's last point there is nothing before us to suggest in the slightest that the applicant had usurped his position which is common cause, his position as leader of the youth in the ANC to achieve his own private personal objectives. In fact the witness on the contrary concedes that he was a member of this ANC youth league, that there were distinct meetings and discussions at the meeting. We don't have evidence that "oh no, Mr Mafu was the leader of the youth league and he as Idi Amin always decided what's to be done and told us what's to be done". No he agrees as an objector that there were democratic meetings, there were discussions. So I don't think one can ever have regard to that suggestion of the Evidence Leader's, there is nothing to gainsay that or to support his contention.

On the same lines, insofar as the documents are concerned, especially the documents that the applicant's taken issue with, C, D, F, G and H, my learned colleague Mr Panday for the victim has endeavoured to suggest that one must regard to those documents and has endeavoured to suggest that there are some probabilities that favour it. Those suggestions that he has adduced do not emanate from the papers, we must know that one, the papers have been taken issue with. On the contrary, having been taken issue with they have not been proven. It's for the Evidence Leader and my learned colleague Mr Panday to prove them, they have not been proven. But apart from that thanks to yourself, Mr Chairperson, we have some documents that come off from the Westville files which read in conjunction with those documents that we seek to take issue with, favour the conclusion, favour the submission that on the probabilities themselves, these documents cannot be said to be one associated with the applicant. In the circumstances they must be regarded as documents that have not been proven and which alternatively on the probabilities cannot be regarded of those of the applicant's.

Insofar against that and on the alternative, insofar as Mr Panday's submission as regards the content of the document going against the applicant is concerned, the very opposite. In fact if you have regard to the content of those documents they do substantially favour the applicant more than his own application. If I take you to page 12 of the bundle the English translation of what is otherwise the Zulu in (d) or (c) shows that his membership began in 1988. It also shows that his father - sorry it does not say that his father was killed. In 9(a)(i) the comparable provision of Exhibit E, he says here rather "I killed Mkhize, we were also killing members of the ANC", he doesn't say that "my father was killed." But there are ...(intervention)

JUDGE DE JAGER: But the problem is should we use that or shouldn't we use it?

MR DEHAL: No, all I'm saying is I'm not taking that argument further to say use it. All I'm saying is one cannot say that the contents go against the applicant therefore he chooses to reject them, in the contrary it does go in his favour, he's just being as astute and prudent and honest as he can in saying they are not. He's in fact - I endeavoured, perhaps I can place this on record, in my consultations with him to tell him that the letters themselves go in great lengths to talking about ANC/IFP activity and could it not be possible that somebody wrote it on your behalf and your instructions and because you don't read English you don't remember them? He categorically denies them, I endeavoured to have them concede that they were his but I could not and verily for the reason that the contents particularly of the letters favour him. Thank you.

MR PANDAY IN REPLY: Mr Chairperson, if I may just briefly respond? Just stemming from my learned friend's argument that document seems to go in favour of the applicant. The fact is just today it was vociferously opposed that the English translation on pages 12 onwards were actually his because the problem one encountered thereafter is on page 14 where he admits that if one has to except these documents but if in ...(indistinct) did not come to me and say he's the one who killed by brother, Siboniso, and my dad, he wasn't going to die. Now that's one of the contradictions and now obviously it said otherwise the documents go in their favour.

Now if one has to look at the letters that were drafted the letters aren't totally in favour of the applicant if one has to peruse them. If I may just point Mr Chairperson, briefly ...(intervention)

CHAIRPERSON: He was not cross-examined on the contents of these documents with a view to showing that he must have provided the information contained in them?

MR PANDAY: This is just a response to my learned friend's ...(intervention)

CHAIRPERSON: Nor was he asked to show that the passage you've just referred to that that hasn't been correctly translated because there's yet another bit that hasn't been added on that should have been added on?

MR PANDAY: I concede that Mr Chairperson, but to just to point that the documents do not go totally in his favour. If one has to read the letters there are paragraphs that show that he was paying for the death of his father so one must not be under the misconception that the documents go totally in his favour, thank you.

CHAIRPERSON: Right, thank you gentlemen.

MR MAPOMA IN FURTHER ARGUMENT: Sorry Mr Chairperson, just one point. On the argument on the possible abuse of power on the part of the applicant I understand Mr Dehal says that there's no evidence to suggest that. I appreciate that but whilst that being the case it must be remembered as well that the applicant in his own words, in his application, on paragraph 11 (b) he says

"We were ordered by no one in the organisation to do what they did"

And later on during the hearing he comes out with a particular Shezi, a Shezi who in his own affidavit, Chairperson, which is Exhibit B says:

"I categorically deny that I ever approved or gave instructions to Mr Mafu or anyone else to kill the deceased."

So it's a situation where I don't know really who gave the order that the deceased be killed.

MR DEHAL IN REPLY: It would on the face of it to be a good point but I'd be failing to say that the very paragraph of my learned colleague refers to on the next page concludes by referring to Cyril Shezi giving his address and pursuant to which Cyril Shezi came to be contacted by the Evidence Leader without which he would have never been contacted. I thank you in particular, thank you.

HEARING ADJOURNS