Amnesty Hearings

JABULANI WISEMAN MZIMELA: (sworn states)

EXAMINATION BY MS MOHAMMED: Thank you Mr Chairperson.

Mr Mzimela, I'm showing you a copy of your amnesty application which you signed earlier this morning. This application is in fact in English but it was interpreted to you in Zulu. You confirmed the correctness of the contents and you then signed the form, is that correct?

MS MOHAMMED: Now on page 2 of the application ...(intervention)

CHAIRPERSON: ...(inaudible)

MS MOHAMMED: Thank you Mr Chairperson.

Now Mr Mzimela, on page 2 of this application, paragraph 9(a)i, lists the acts for which you are applying for amnesty. It reads as follows:

"Murder of Mr Vusi Maduna" next number: "Mr C B S Makatini" next number: "Mr Mapamolo" and "One count of robbery"

Now for the purposes of this application, your testimony will be confined to the murder of Vusi Maduna, is that correct?

MR MZIMELA: That is correct.

MS MOHAMMED: Thank you, now I'm going to take you to the day on which Vusi Maduna was killed. Now on that day in question you were in Clermont, isn't that so?

MR MZIMELA: That is correct.

MS MOHAMMED: And on that morning you were at the bus stop as you were making arrangements to join your fellow comrades to attend a funeral?

MR MZIMELA: That is correct.

MS MOHAMMED: And at some stage you saw Mr Vusi Maduna?

MR MZIMELA: Yes.

MS MOHAMMED: Can you tell the Committee what happened when you saw Mr Maduna?

MR MZIMELA: When he approached the rank we were together with Hammarsdale comrades because we were going to attend a funeral to kwaMashu where comrades had been killed. Vusi came and other Hammarsdale comrades went to him and started talking to him. I didn't know as to what they were talking about, therefore I went closer in order to hear what they were talking about and I heard them saying to us "this is the Vusi Maduna we've been telling you about, that he is a police informer" and we said "oh" and they started assaulted him.

MS MOHAMMED: Who assaulted Mr Maduna?

MR MZIMELA: I don't remember the first one, it was a mob.

MS MOHAMMED: Okay but did you assault Mr Maduna?

MR MZIMELA: Yes I did.

MS MOHAMMED: What exactly did you do to him?

MR MZIMELA: I stabbed him twice.

MS MOHAMMED: Now we've heard testimony from the previous applicant that at some stage Mr Maduna had gotten onto a bus?

Now when you stabbed him did you stab him before he got onto the bus or after that?

MR MZIMELA: After he'd got out of the bus.

MS MOHAMMED: Okay, just to confirm, isn't it correct that in the 1980's you were a member of the UDF and more especially a member of the Clermont Youth League?

MR MZIMELA: That is correct.

MS MOHAMMED: And can you tell the Committee what you are presently serving a sentence in Westville for?

MR MZIMELA: Murder of Mr Mapumulo and murder of Mr Makatini.

MS MOHAMMED: And how many sentence are you serving?

MR MZIMELA: 16 years.

MS MOHAMMED: Thank you Mr Chairperson, I have nothing further for this applicant.

NO FURTHER QUESTIONS BY MS MOHAMMED

MR HARKOO: I have no questions, Mr Chairperson, thank you.

NO QUESTIONS BY MR HARKOO

CROSS-EXAMINATION BY MR PANDAY: Mr Mzimela, how many comrades from Hammarsdale were you with on the day Vusi Maduna was murdered?

MR MZIMELA: I wouldn't be able to say the number because it was quite a big number.

MR PANDAY: Do you know any of the names of them that were present?

MR MZIMELA: George, Mjay, I remember these two.

MR PANDAY: And why do you remember these two?

MR MZIMELA: They were two close to me.

MR PANDAY: Now did you know that Mr Maduna was the Chairman of the Hammarsdale Youth League?

MR MZIMELA: No, I didn't know that.

MR PANDAY: Did you know he was also an active member in terms of educating the community on policies of the ANC and UDF?

MR MZIMELA: No, I didn't know.

MR PANDAY: Now is it common policy for comrades to just kill another comrade just be the mention of him being an informer?

MR MZIMELA: What I will explain it's exactly what I knew at the time. We were told that he was a police informer.

MR PANDAY: That I know, but what I want to know is that was it policy of the UDF to merely kill a person upon suspicion?

MR MZIMELA: During that period it was common.

MR PANDAY: Yes, now tell me, Mr Khumalo, was he at any stage suspected of being an informer?

MR MZIMELA: Which Khumalo are you referring to?

MR PANDAY: The applicant that appeared here first, is he not known to you?

MR MZIMELA: I know him and I don't know that he was an informer.

MR PANDAY: You never knew he was an informer?

MR MZIMELA: No.

ADV SANDI: Were you not aware of a suspicion on the part of some people which existed that he was an informer?

MR MZIMELA: I only heard about it today.

MR PANDAY: Were you close to Philani Khumalo, as a comrade were you close to him?

MR MZIMELA: Yes.

MR PANDAY: Did you confide in each other?

MR MZIMELA: No.

MR PANDAY: So what sort of close relationship did you share?

MR MZIMELA: We were just friends or comrades.

MR PANDAY: Now did you ever contact the leadership of the UDF and explain to them that there were lots of informers in the area?

MR MZIMELA: No.

MR PANDAY: So is it correct to assume that you would kill whenever you felt like?

MR MZIMELA: No.

MR PANDAY: Why do you say that?

MR MZIMELA: What I know is that UDF was affiliated to the ANC and Oliver Tambo once announced that we should make this country ungovernable.

MR PANDAY: If someone had to tell you that Mr Khumalo was an informer, would you have killed him?

MR MZIMELA: I wouldn't be able to answer that question.

MR PANDAY: Why wouldn't you be able to answer that question?

MR MZIMELA: It is a difficult question.

MR PANDAY: Well why is it difficult? You would kill people that were informers, you were told that Maduna was an informer, you partook in the killing. Now if I had to tell you or someone had to tell you that in 1987 that Khumalo was an informer, would you have killed him?

MR MZIMELA: If we knew that he was we would have.

MR PANDAY: Okay. Thank you Mr Chairperson.

NO FURTHER QUESTIONS BY MR PANDAY

CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chairperson.

It's just an issue, I think I'm raising it quite late, Mr Chairperson. I'll address it to you first. In the indemnity application that was sent to the TRC, the applicant seems to be applying for the murder, robbery and for which he was convicted and then there's a statement as well, addressed to the indemnity office, where he seems to be outlining the incidents with regard to what he is convicted of.

CHAIRPERSON: Which application is this?

MS THABETHE: Mzimela's indemnity application.

CHAIRPERSON: Indemnity application?

MS THABETHE: Yes, which was forwarded to the TRC as an application for amnesty and really I think the concern is that this incident was not raised then. The only incident which seems to have been raised is the murder of Mapumulo and Makatini.

JUDGE POTGIETER: Where does that appear from?

MS THABETHE: It appears for example in number 9, particulars in offences in respect of which amnesty is sought, he cites the case no. CC150/89 and number C, he cites murder, robbery with aggravating circumstances, murder with extenuating circumstances and then in his statement, attached statement, dated the 6th October 1992, he elaborates, he gives an elaboration of - sorry, no it's a letter to the indemnity office, dated the 31st May 1995 where he mentions the assassination of Makatini, this is the incident for which he is convicted and nothing is mentioned about this incident in question.

JUDGE POTGIETER: Yes now what ...(intervention)

MS THABETHE: So I don't know whether I should address the question straight to the applicant as to why this was not included then.

JUDGE POTGIETER: But our letter of 25th March 1997, what application for amnesty are we acknowledging receipt of? In respect of which incidents?

MS THABETHE: We're acknowledging receipt in respect of the application for indemnity.

JUDGE POTGIETER: No, no, it's says "application for amnesty".

MS THABETHE: It does but there's no application for amnesty.

JUDGE POTGIETER: But how do we know that? He was given a number?

MS THABETHE: Because, Honourable Member of the Committee, there were applications that where there were no amnesty applications where there were only indemnity applications and still they were given numbers.

JUDGE POTGIETER: So are you suggesting that we shouldn't hear this application?

MS THABETHE: No, I'm not suggesting it, Mr Chairperson, I'm just raising it as something that has - you know, dawned on me.

JUDGE POTGIETER: Oh.

MS THABETHE: I don't have any objections if we continue but ...(intervention)

JUDGE POTGIETER: You're not submitting that there is no application for the killing of Vusi Maduna before us?

MS THABETHE: In the indemnity application?

JUDGE POTGIETER: No, no, on the whole?

MS THABETHE: Whether we should?

JUDGE POTGIETER: Yes, otherwise it's irrelevant if you're not going to submit now that we shouldn't hear this application, it's irrelevant for you to be arguing this case in the middle of cross-examination. If you're accepting that there is an application from this applicant in respect of the incident that is now before us, then you must proceed in cross-examining?

MS THABETHE: Yes Mr Chair, but I thought it's my duty to highlight that to you?

JUDGE POTGIETER: Yes, no, no that's fine. I appreciate that but I can't ...(intervention)

MS THABETHE: Yes, it's only raised in the application that was completed today or yesterday.

JUDGE POTGIETER: Yes I just couldn't understand why you're raising it now before you question the applicant?

MS THABETHE: Yes. But I can continue, Mr Chair, with cross-examination. I just wanted you to take note of that.

Mr Mzimela, I have one question for you. You have indicated that you heard that Vusi Maduna was a sell out. Now I want to know, did you hear it from the Clermont comrades or you heard it from the Hammarsdale comrades?

MR MZIMELA: I heard from Hammarsdale comrades but there were Clermont comrades as well present.

ADV SANDI: The day he was killed?

MR MZIMELA: Yes.

ADV SANDI: Was it the first time you heard about it?

MR MZIMELA: Yes.

MS THABETHE: And the killing, it happened in Clermont is that correct?

MR MZIMELA: Yes.

MS THABETHE: Okay, thank you Mr Chairperson, no further questions.

NO FURTHER QUESTIONS BY MS THABETHE

MS MOHAMMED: Thank you Mr Chairperson, I have no further questions.

CHAIRPERSON: Re-examination?

MS MOHAMMED: No.

NO RE-EXAMINATION BY MS MOHAMMED

CHAIRPERSON: Thank you.

WITNESS EXCUSED

JUDGE POTGIETER: Have you got anything else Ms Mohammed?

MS MOHAMMED: I have nothing further for the Committee.

JUDGE POTGIETER: That's your case?

MS MOHAMMED: Yes.

MR PANDAY: Mr Chairperson, the victims intend calling just one witness, that is the brother of Vusi Maduna. We have a chair for him to sit here. I believe it's the end of the applicant, where the applicant sits. Mr Vusi Maduna?

JUDGE POTGIETER: Is it also Vusi Maduna?

MR PANDAY: Oh sorry, sorry. The correct name is - just a second Mr Chairperson?

JUDGE POTGIETER: Alright, we'll hear from him. Mr Panday, is he alright here or do you want him next to you?

MR PANDAY: Well Mr Chairperson, I don't know whether for the purpose of the camera because we have - it's fine.

JUDGE POTGIETER: I think it's more important to hear from you, what is more convenient for you.

MSAWE NKOSI MADUNA: (sworn states)

EXAMINATION BY MR PANDAY: Mr Maduna, what is your relationship with the deceased, Vusi Maduna?

MR MADUNA: My elder brother.

MR PANDAY: Now Mr Maduna, were you aware of your brother, Mr Vusi Maduna's political activity, especially during 1987?

MR MADUNA: Yes I was.

MR PANDAY: Did he belong to any political organisation?

MR MADUNA: Yes.

MR PANDAY: And what was the name of that organisation?

MR MADUNA: Hammarsdale Youth Congress.

MR PANDAY: What was his position in that organisation?

MR MADUNA: Chairperson.

MR PANDAY: Now prior to him joining this organisation, did he hold any other position or form of employment?

MR MADUNA: He was a teacher in Ladysmith.

MR PANDAY: And what was the reason for him having left teaching?

MR MADUNA: Parents assaulted him and chased him out of that area who were IFP members.

MR PANDAY: And after having left Ladysmith, did he return to the Hammarsdale area?

MR MADUNA: Yes he did.

MR PANDAY: Besides being the Chairman of the Hammarsdale Youth Congress, what other role did he play in the Hammarsdale area?

MR MADUNA: He was to make sure that the youth is taught about the politics and I think this is what led him to be an enemy with IFP.

MR PANDAY: Right, now you've sat thus far through the evidence of the applicants that were called and you've heard them stating that your brother was a police informer. Would you like to comment on that evidence that was lead earlier?

MR MADUNA: I would like to put this very clearly. I knew my brother as someone who was involved in the struggle and he was conducting himself like an activist. If it had happened that he's spoken to the comrades and the police, it is obvious to me that the police who called him and told him and the reason can be that he was conversant in Afrikaans and English and probably why that white police spoke to him to speak to the comrades. Again, I would like to clarify something. He used to go to Clermont because our grandmother stays in Clermont. We used to all visit there in the Ntombela family.

MR PANDAY: Now Mr Maduna, the applicants have stated that the reasons for having killed your brother is because they viewed him as an informer. Are they correct in that assumption or do you disagree with that assumption?

MR MADUNA: I wouldn't be able to remove what they believed in but what I would like to say is that if they were matured in the struggle at that time, they would have thought about things like that that someone like Vusi in his position like a chairperson, someone can use that and say he is a police informer in order for the comrades to be the ones who are killing him and in Mpumalanga the area was predominately Inkatha and Vusi was active in getting the youth together and teaching them about ANC and the struggle. Even when I started to be a leader and a ...(indistinct) president in the school I was put in that position myself because I was taught by Vusi.

MR PANDAY: Do you oppose the application that has been brought by Mr Khumalo and the two others for amnesty in respect of the death of Vusi Maduna?

MR MADUNA: Vusi was a very peaceful man and we as a family, we are now in a position to do what he liked to do, we are in a position to - we are compelled to forgive these people because if Vusi was still alive, that is what he could do. I will rather have people telling the truth than for them to lie.

MR PANDAY: Now do you believe that the applicants are telling the truth? That is the important question.

MR MADUNA: The two who testified recently put it very well but the first one related about Vusi that he met Vusi in some other areas and he related something about seeing him having a gun and that doesn't mean that that person is an informer because he himself had guns, it means if Vusi was an informer, he was an informer too.

And another point, yesterday he did mention that Vusi had permed his hair to show that he had money at that time. I would say of course Vusi had money but not from being an informer because it was someone who has been a teacher.

I was also involved in the struggle and also I have a wish for this country to reconcile. I really want to forgive them but it is difficult to forgive someone if someone is saying bad things about someone that you love and things that you know he didn't do them.

MR PANDAY: Okay, thank you Mr Maduna. Thank you Mr Chairperson.

NO FURTHER QUESTIONS BY MR PANDAY

CHAIRPERSON: Can I just go back onto something you said? Did you say that it's possible that some people who shall remain nameless at the moment might have spread the rumour around that your brother, Vusi, was an informer so that the ANC, UDF would attack him?

MR MADUNA: Yes, things like that could have happened but Philani put it in his word that he was matured politically at the time therefore he would have taken this thing like a mature individual and scrutinised everything.

CHAIRPERSON: The mob people wouldn't, they could be carried away by something?

MR MADUNA: If I can go back a little bit, Vusi left Mpumalanga area and went and seeked refuge in Chesterville at another relative. If he was an informer, the Chesterville comrades wouldn't have left him alone because at the time of his death he was mostly staying in Chesterville and also he was staying at another comrade who was an Indian who gave him a place to hide. He was not in one area and in all the areas where he had seeked refuge it was areas which were predominantly comrades, they would have known that he was an informer, if he was one.

CHAIRPERSON: ...(inaudible)

MS MOHAMMED: Thank you Mr Chairperson, I have no questions for this witness.

MR PANDAY: There's no re-examination Mr Chairperson.

NO RE-EXAMINATION BY MR PANDAY

MR HARKOO: I have no questions as well.

NO QUESTIONS BY MR HARKOO

MS THABETHE: I have none Mr Chairperson.

NO QUESTIONS BY MS THABETHE

ADV SANDI: At the time he was killed, do you say he was still the Chairman of the Hammarsdale Youth League?

MR MADUNA: Yes he was.

ADV SANDI: Are you aware of any attempts by anyone who was involved in the Hammarsdale Youth League to oust him on the basis that there were suspicions? I take it there were no such attempts at the time?

INTERPRETER: Could you please repeat your question?

MR MADUNA: After he had left Ladysmith he came back home and my home was attacked from time to time, therefore we were all forced to leave my parents' home. All boys in my family were forced to leave my parents' home. I went to stay in KwaZulu and studied there. We knew that if he was in Clermont he was safe because Inkatha was not in numbers in Clermont, we were surprised when we heard that he was killed.

CHAIRPERSON: Is it correct that your original family home was in Hammarsdale?

MR MADUNA: Yes.

CHAIRPERSON: And then you told us your home was attacked from time to time and you were forced to leave?

MR MADUNA: Yes.

CHAIRPERSON: And did that happen to a great many UDF or ANC supporters in the Hammarsdale area? Were they driven out of the area?

MR MADUNA: Yes that is correct.

CHAIRPERSON: And did they go to places like Clermont and what have you?

MR MADUNA: Yes.

CHAIRPERSON: And your brother went to Clermont, didn't he?

MR MADUNA: Yes.

CHAIRPERSON: Did he live there permanently or did he just go there visiting?

MR MADUNA: He went there to visit, sometimes he will stay in Chesterville in my aunt's place.

CHAIRPERSON: Thank you.

MR PANDAY: Mr Chairperson, that's the only witness that the victims will be calling.

CHAIRPERSON: Alright.

WITNESS EXCUSED

MR PANDAY: Thank you.

MR HARKOO: I have no witnesses, Mr Chair.

MS THABETHE: No witnesses, Mr Chair.

CHAIRPERSON: I think we're ready to hear argument now or what?

MS MOHAMMED IN ARGUMENT: Thank you Mr Chairperson.

It is submitted that Khumalo, the applicant in this matter, the first applicant in this matter, applies for amnesty for the following incidents. Just to summarise, firstly the murder of Simi Nzuza. Secondly, the murder of Vusi Maduna. Thirdly, his involvement in the Reservoir Hills incident and then fourthly, the assaults on Vuna Dlamini and Sipho Mbatha.

It is submitted that each of these incidents do have an associated political objective as stated repeatedly by the applicant during his lengthy testimony. Insofar as the murders of Simi Nzuza and Vusi Maduna is concerned, the applicant repeatedly stated that the reasons for their murders was because they were perceived to be informers. As far as the Reservoir Hills incident is concerned, his primary objective to go there to join the others in this matter was so that he could obtain funds and later leave the country and then join MK and the assaults on Vuna Dlamini and Sipho Mbatha, the political objective there was so that to clear the misconception that was prevailing at the time that the UDF was actually involved in criminal activities and he wanted to dissociate the comrades from any such inclination which any members of the community held.

As far as the next applicant, Mr Mnyandu, in concerned ...(intervention)

CHAIRPERSON: Sorry, before you go on, there's no mention anywhere in any of the advised or other applications about anything under the Firearms Act, is there?

MS MOHAMMED: No. Mr Mnyandu applied for amnesty for the killings of Simi Nzuza and Vusi Maduna, again for the reasons that they perceived them to be informers and likewise Mr Mzimela as far as the killing of Mr Vusi Maduna. There's just one thing I wanted to clear as far as Mr Vusi Maduna's death is concerned. My learned colleague went to great lengths to point out that in fact Mr Maduna held a high profile position insofar as he was the Hammarsdale Chairperson of that youth league and on that basis there wasn't any basis on which the applicants ought to have acted in a manner than they did on the day in question. However, it is submitted that on his own version the witness that testified here on behalf - sorry, Mr Maduna, on his own version he stated that some people could have spread these rumours to give off the impression that Mr Maduna was in fact a police informer so that UDF members would in fact attack him.

And lastly, Mr Chairperson, my learned colleague, the Evidence Leader at some stage made some mention about Mr Mzimela's indemnity application. I wish to point out that although the application refers to those incidents, Mr Maduna - sorry, Mr Mzimela never made mention of the involvement in the Maduna killing because he was never convicted for that matter. He is presently only convicted for the killings of Makomolo and Makatini. On that basis, Mr Chairperson, I submit respectfully that the requirements in terms of Section 20(i) of the Act has been satisfied and that both the applicants be granted amnesty. Thank you.

MR HARKOO IN ARGUMENT: Thank you Mr Chairperson, if I may proceed? In the light of my mandate, I will restrict myself to the first applicant firstly and also to the incident at Reservoir Hills.

It is my submission that this single most important incident for the applicant is that if he is granted amnesty in this particular incident, it will have the effect of having him released from prison and that is the primary reason for having included this incident in his application for amnesty together with the others.

The applicant had given a number of contradictory versions of the events that transpired and explanations were given in regard to each one which cannot conceivably be true. For example he stated in his first statement which was in the form of a letter that it is not true because he did not want to implicate his colleagues. Yet in that very statement he made mention of at least three persons who were involved in that incident. When pressed further, he stated that he did not have confidence in the person who had in fact given him the application forms and he thought that they may have been persons who were sent or agents of the boers. The applicant had not been truthful, the other thing is he refused to answer questions directly and was very vague to questions that were put to him and he began to perambulate to the extent where we had to use our cross-examination. But he however conceded that the incident at Reservoir Hills was not carried out with the promises of obtaining funds to go overseas. He accepted that there were other means available for example approaching other organisations or approaching some organisations.

Furthermore, it is doubtful that he ever had any intention of going to Lusaka because he mentions that although he would die for his organisation or it's aims, his first and primary love was the love of his children who he did not intend leaving.

He went on to state his other reason for having participated in this incident, was that he needed to restore his credibility amongst his comrades. But he himself conceded that it is not the policy of his organisation to become involved in activities of this nature so he cannot - this argument itself as well cannot make sense, it cannot hold water. He mentioned that he did not know precisely what happened inside the bottle store. He conceded in his evidence that he could not have known what happened inside the bottle store prior to him entering and his statement that he mentioned under oath, that is before this Committee, that those persons inside refused to heed any warning is not true, especially in light of the fact that we have documents here, affidavits and also out of the record of the trial where it states that the persons out there offers no resistance at all.

In fact, in fact it was such that they pleaded for mercy.

CHAIRPERSON: It appears to have been a singularly brutal robbery.

MR HARKOO: Yes.

CHAIRPERSON: For some reason or another were determined not only to steal but to do all the damage they could to the people in there.

MR HARKOO: Precisely.

CHAIRPERSON: With knives, guns.

MR HARKOO: The applicant, it is submitted, fully participated in this incident. He took part in the planning, he appreciated that such actions were not politically motivated, nor was it carried out in furtherance of any political organisation or objective. In fact it was his evidence that such actions were not permitted by the organisation that he purported to belong.

Against this background, he fully participated in this incident, he mercilessly killed two persons and seriously injured two others and following upon that, he utilised the proceeds of those funds that he had received for his personal benefit.

Against this background and in the light of what I have now submitted, it's my submission that he has failed to satisfy the requirements in granting of the amnesty in terms of Section 20 and I submit that the application for amnesty be refused. Thank you.

MR PANDAY IN ARGUMENT: I'll try not to overlap into much of my learned friends submissions insofar as the robbery at the Reservoir Hills Hotel is concerned but to add the following. Mr Chairperson, the applicant would like to have the Commission believe that he had to structure a lie on the lengthy letter he had submitted to the TRC with regard to the robbery took place and the reason having structured this lie was to protect himself. Now the irony, if at all, is that there were no parties with him in prison at that time that would be of any danger to him with specific reference to the Reservoir Hills incident. There was no threat to his life.

Further to that, Mr Chairperson, the applicant, if one has to accept that that may be a reasonable reason, but there was no reason to lie on his version as my learned friend, the Evidence Leader, Ms Thabethe, questioned him on and then too, he was not able to afford this Commission as to why he came with his version.

Now one of the questions in the application form is "did you benefit financially?" Now on page 5, interpreted version:

"Did you benefit financially or otherwise?"

The answer given is that:

"We want our side, the community, to know everything about UDF"

Part of it may be true that they may have wanted the UDF to know about it, but the flipside is that he did benefit financially and he continued to benefit from it financially from this act. They rob a hotel, he would like the Committee to believe that this was to give him financial assistance.

CHAIRPERSON: This does not relate does it? This thing at page 5, when you say "did you benefit financially?" This does not relate to the robbery does it?

MR PANDAY: I would concede that Mr Chairperson, as he later reflects on the incident that took place as you were still awaiting file at this stage.

CHAIRPERSON: Because there's a (d)

"The community was conscientised and they themselves formed street committees to ward off criminals."

MR PANDAY: Okay, I would concede that.

JUDGE POTGIETER: Mr Panday, which of the victims of Reservoir Hills are you representing?

MR PANDAY: Mr Chairperson, it's the owner of the hotel, Mr Dukhi.

JUDGE POTGIETER: Was he involved in the incident.

MR PANDAY: No, Mr Chairperson, his hotel was robbed and the monies were taken from there. He was also shot.

JUDGE POTGIETER: No, no, I know about that but was he inside there, was he one of the people present?

MR PANDAY: No, he was not inside the hotel but subsequent to the robbery taking place he was later shot by the escaping robbers.

JUDGE POTGIETER: Or after the event?

MR PANDAY: Yes.

JUDGE POTGIETER: Is he one of the people that had a gunshot wound?

MR PANDAY: Yes and a Mr Moodley as well, that's the second person.

JUDGE POTGIETER: Alright.

MR PANDAY: Now Mr Chairperson, the applicant has benefited financially on his own version. He took money to his girlfriend to ease the tension that rested between himself and the family for having damaged her. He then would later have the Committee believe that some of the money was spent on socks and shoes and shorts as would be the requirements of the Umkhonto weSizwe, for their training, or to cross the borders as their clothes would get torn. But he never goes on to eventually reach a conclusive decision as to when, how and with who he was going to join MK and they would also have you believe in the evidence that monies were going to be used for a car to get them across.

CHAIRPERSON: Well that wasn't in the evidence, was it? That was in his letter.

MR PANDAY: That was in the letter.

CHAIRPERSON: He did not say a word about that.

MR PANDAY: That was in the letter which he then obviously indicates that to be a lie and in the letter itself the amounts change and there's no reason for the amounts to change. Now Mr Chairperson, ...(intervention)

CHAIRPERSON: I don't think we require any further argument about this incident.

MR PANDAY: Thank you Mr Chairperson. With regards to the killings of Maduna and Nzuza, the applicant, it is submitted that he has not made full disclosure with regards to Maduna. His information that he had within his knowledge, he considers himself to be a mature activist, as the witness puts it and he ought to have gone further and would have gone further in establishing the allegations against the ...(intervention)

CHAIRPERSON: There is no suggestion, is there, from any source of any personal vendetta or ill-feeling?

MR PANDAY: I concede that Mr Chairperson and as such, Mr Chairperson, the witness for the family has conceded that the applicants, the second and third applicant gave an account of the events that may have taken place on the day in question when they were killed but not insofar as their knowledge as they would be expected to have when dealing with the deceased, Mr Maduna.

ADV SANDI: What should be the test in such a case?

MR PANDAY: Mr Chairperson, with regards to the applicants two and three?

MR PANDAY: Yes. A person who receives information or an allegation that so and so is this and that, how do you assess the mental process of the reasoning of this person in order to arrive as to whether he acted bona fides?

MR PANDAY: Well with applicants two and three I would concede, Mr Chairperson, that their actions were bona fides as they intercepted a group or one was part of a group and one came into a group, being advised that so and so is being implicated as an informer. But with regards to the first applicant, he would have had all the necessary time to confirm that and also approach it in a much diplomatic manner as ...(indistinct).

Mr Chairperson, in regards to the application for amnesty in respect of the murders of Maduna and Nzuza, I may concede that there was a political element to it. The only issue as to whether the first applicant has made full disclosure to the Committee and with regards to the assaults on Mr Dlamini and Mr Mbatha, I would submit Mr Chairperson that there seemed to appear to be a more personal reasoning as to why there was this assault lodged against Mr Mbatha stemming from the fact that money was being owed for the dagga and the applicant was being implicated and went to clear his name.

CHAIRPERSON: Well there's also the theft, isn't housebreaking and theft?

MR PANDAY: Housebreaking and theft which the applicant was given the impression that he is being implicated and ...(intervention)

CHAIRPERSON: Also gives credit to his political organisation if those seen by the public as being a defence against that sort of behaviour which they thought the police were sadly lacking.

MR PANDAY: I would concede that there has been evidence before the Committee, Mr Chairperson, where organisations have ignored to go to the police by virtue of actually there was no response from the police.

MS THABETHE IN ARGUMENT: Do you still wish to hear argument in respect of Reservoir Hills, Mr Chairperson?

CHAIRPERSON: Unless you wish to draw our attention to something that hasn't been mentioned?

MS THABETHE: I wanted to draw your attention to the policy of the ANC and any other organisation and I would refer you to a matter that we heard last week in Port Elizabeth.

CHAIRPERSON: That was a different political organisation which had a different policy.

MS THABETHE: Yes, but what I wanted to say is that it wasn't the policy of any organisation to commit robbery for intentions of that person to go for training or to skip the country.

CHAIRPERSON: No, the robberies we've had is where they wanted firearms or money to be given directly to the party to use for the party's purposes, so that wasn't.

MS THABETHE: Yes, that's one thing. Another thing, Mr Chairperson, I wanted to draw your attention to the ratio of proportionality because the evidence we have is that when they entered, the victims said take the money and go and I would submit that the act of stabbing the people who were inside the hotel and some who were shot was not proportional to the ...(intervention)

CHAIRPERSON: Particularly if you have regard to the nature of the stab wounds and the number of them.

MS THABETHE: Yes, it was not proportional to the objective of taking the money which they were ordered according to the evidence we've heard today. There was an indication ...(intervention)

JUDGE POTGIETER: I must confess that I'm confused. Perhaps I'm not reading these post-mortem reports properly but there is evidence and somebody referred to it in cross-examination, there's reference to needle prick wounds, a number of them and then when I looked at the post-mortem I saw that there appears to be one very fatal stab wound on the shoulder that entered the chest of the deceased and it also seems to be in respect of the other one now. Now you could perhaps help, I wasn't sure if the needle prick wounds, whether those were actually stab-wounds or was it wounds that was caused by surgical instruments or what? Because there was one ...(intervention)

MS THABETHE: They were stab-wounds, apparently Mr Chairperson. I'm being told by ...(intervention)

JUDGE POTGIETER: No, no, no, I don't want you to repeat what other people said, I'm asking you, I'll ask Mr Harkoo if I want to or you could help me.

MS THABETHE: Can you please refer me to the relevant page?

JUDGE POTGIETER: Because - look at the post-mortem.

MS THABETHE: Okay.

JUDGE POTGIETER: What is the needle wounds, whatever they call it here?

MS THABETHE: Mr Chairperson, I would be lying if I knew what the needle wounds referred to here are but the evidence that we have is that they were stabbed. I wouldn't want to give, you know, give something that I'm not sure about, a version that I'm not sure about.

JUDGE POTGIETER: Yes.

MS THABETHE: What I know is that there were stab wounds and ...(intervention)

CHAIRPERSON: I don't think they could have been treatment because if you look at page 155, it says

"The needle puncture wounds of the left intra-clavicular area are noted to bleed into the left plural cavity causing a small left humur, neumer thorax"

Well that is hardly the thing that treatment is likely to be doing.

JUDGE POTGIETER: Yes so you say you can't assist with what sort of instrument would cause those kind of wounds, whether it's a knife or whether it's some other thing?

MS THABETHE: No, no Mr Chairperson.

MR HARKOO: If I may assist Mr Chairperson?

JUDGE POTGIETER: Yes.

MR HARKOO: My learned friend who in fact is also my partner and brother of the deceased, of this deceased also confirms that those were in fact stab wounds. I did put it in ...(intervention)

JUDGE POTGIETER: Is it the son or the father?

MR HARKOO: The son.

JUDGE POTGIETER: The son, oh.

MR HARKOO: Yes, he was stabbed on the shoulder and died of a fatal wound on the neck and I did put it through that the victims were my brother and father respectively and my brother was 17 years old and in matric at that particular time.

JUDGE POTGIETER: Yes, so those needle puncture wounds?

MR HARKOO: He was on medical treatment for anything.

JUDGE POTGIETER: This was stab wounds?

MR HARKOO: Stab wounds, yes.

JUDGE POTGIETER: All of them?

MR HARKOO: All of them.

JUDGE POTGIETER: Yes thank you, thank you very much.

MS THABETHE: With regard to the killing of Vusi Maduna, Mr Chairperson and Honourable Members of the Committee, I would leave it to the hands of the Committee to make their right decision. Also that applies to the killing of Simi Nzuza and the assault upon Moses Buno and Sipho Mbatha. Thank you.

MS MOHAMMED: Nothing further, Mr Chairperson. As the Committee pleases. Mr Chairperson ...(intervention)

CHAIRPERSON: Some of you will be leaving now?

MS MOHAMMED: Yes Mr Chairperson.

CHAIRPERSON: Thank you for your ...(inaudible)