CHAIRPERSON: ... Nyawuza and others. The Committee remains the same. Would the legal advisers please place themselves on record?
MR PANDAY: Thank you Mr Chairman. The name is Mr Panday, initial S. I appear for Nkosinati Emanuel Nyawuza.
MR DEHAL: Mr Chairperson, Honourable Members, the name is Dehal, from Dehal incorporated. I'm assisted here by my assistant, Ms Fatima Mohammed and we represent the second, third and fourth applicants, namely Elijah Nyawuza, Meyiwa and Ndimande. Thank you.
MS REDDY: Mr Chairperson, Members of the Committee, I'm Ms G Reddy and I represent the victims of the deceased.
MS THABETHE: Thank you Mr Chair. I'm Ms Thabile Thabethe, the Evidence Leader.
MR PANDAY: Mr Chairman may I call somebody who's ...
CHAIRPERSON: No, I think we must deal with the matter of the others which were referred, I think it's the correct way, to this Hearing. Let's first deal with Mr Elijah Nyawuza.
MR DEHAL: Thank you. Mr Chairperson, I presume you're referring to the applications that were intended and I'll address you now on the applications to be brought, relating to whether their applications ought in the first place to be heard or not.
Insofar as the second applicant Mr Elijah Nyawuza is concerned, he is the father of the first applicant, Nkosinati. Mr Chairperson he says that when indeed he withdrew the application, he was motivated by reasons pursuant to a visit to him whilst he was in prison, by two members of the TRC and which two members have apparently since also filed their affidavit. Mr Chairperson, I just refer you briefly to the affidavit of one of those persons which, in paragraph 4, confirms that there was such a visit. I'm hearing referring to the affidavit of Joshua Sikumbuso Cele, I see it's not in the bundle, but has been provided to me loose and cross-referenced is the affidavit of S. Sheila Mkhize. Now reading particularly from paragraph 4 and 5 of the affidavit of Cele, read in conjunction with paragraph 2.3 of the affidavit of Mkhize, you will see what is common cause is that indeed such a meeting did take place, indeed the incident for which this applicant seeks amnesty, was discussed. More importantly that these two persons who visited Elijah Nyawuza, the applicant, were privy to a knowledge - were privy to the events and a knowledge of how this incident occurred, prior to their visiting the applicant.
CHAIRPERSON: Well, that's not correct, is it? At least, on my reading is, the position is that one of the persons had been a member of the police force, had been part of the unit that investigated the incident and he was aware of it. It seems from Mrs or Miss Mkhize's affidavit, she only learned of this when he intervened and said, at paragraph 2.3
"As the matter had occurred while he was working at Isipingo, he further asked the applicant who is telling you the truth. After they had a conversation, the applicant turned to me and asked to withdraw."
It would appear that she was talking or questioning the applicant and that this other person intervened with his personal knowledge of the events, prior knowledge and that that in some way influenced the applicant.
MR DEHAL: I concur. Sorry, I apologise for that. It's Cele that was a part of the detective police.
CHAIRPERSON: Yes.
MR DEHAL: Yes, Mr Chairperson, the other submission I wanted to make is simply this. It is also true that the withdrawal of the application was pursuant to this interview and that the probabilities that appeared to favour the conclusion inescapably that the withdrawal may well have been in some way or the other influenced by this discussion and to that extent I think it would be prudent to allow the applicant to have his application heard.
CHAIRPERSON: I think so ... The Committee agrees with you in that he made an application, he wants to continue with it and it seems possible there may have been a misunderstanding in this conversation.
MR DEHAL: I'm indebted to you. Mr Chairman, may I take you then to the second applicant, Meyiwa and the third Ndimande? May I just confer with my assistant? Bear with me. Thank you Sir.
Insofar as Meyiwa is concerned, he is the one who apparently had a decision handed down, albeit it unsigned, in respect to what appeared to be or what purported to be an application for amnesty. Unfortunately to the extent, as Your Lordship had correctly pointed out previously, to the extent that it is unsigned, little weight can be placed on it and more importantly there is a letter that this applicant had signed or written which has political content to it and one is at a loss to establish whether those who considered his original application, had regard to that letter.
CHAIRPERSON: Well isn't the position that a decision has to be signed by two people, one of whom must be a Judge and in this case that has not been done?
MR DEHAL: Correct.
CHAIRPERSON: Therefore the decision refusing his application is of no force and effect and he has an application which we are prepared to hear.
MR DEHAL: Absolutely. Thank you. And as regards the last applicant, Philbert Ndimande, the position there is crisply the following: An Indemnity Board had, on receipt of his application, adjourned that for a subsequent Amnesty Committee to consider. His matter is not finalised and it would be fit and proper, prudent and necessary to have his application heard.
CHAIRPERSON: It seems that, and this has happened in other matters that we have heard this week, that he was informed that the matter would be referred and there is no indication that anything was done after that. It may have been done, it may not, but it seems fairness demands that where the application says that he has not been given the opportunity up to now, we should allow him to file the amnesty application, not a late filing filed this year, but as a result of the indemnity application which was made...
MR DEHAL: On the 12th of October 1995.
CHAIRPERSON: Yes. And we are accordingly prepared to hear the application.
MR DEHAL: I'm indebted to you. Thank you Sir. Those are the submissions thus far. I think it will now be necessary for Mr Panday to proceed with his applicant first. Thank you.
NKOSINATI EMANUEL NYAWUZA: (sworn states)
EXAMINATION BY MR PANDAY: Mr Nyawuza is it correct that you appear before this Committee today applying for amnesty for the killing of Mr Lembede?
MR NYAWUZA: That's correct.
MR PANDAY: Is it also correct that you are at present serving a 15 year term of imprisonment for the said killing?
MR NYAWUZA: That's correct.
MR PANDAY: Thank you, Mr Chairman. Mr Nyawuza, I'm going to go through a few personal details with you. I'd like for you to respond accordingly.
Mr Nyawuza at the time of the killing of Mr Lembede, where were you residing?
MR NYAWUZA: I resided in the Nzamane area.
MR PANDAY: And at the time, how old were you?
MR NYAWUZA: If I am not mistaken, I was about 21 or 22.
MR PANDAY: And at the time, were you employed or unemployed?
MR NYAWUZA: I was unemployed.
MR PANDAY: And did you belong to any political organisation at the time?
MR NYAWUZA: Yes, I was a follower of the ANC.
MR PANDAY: And when did you first join the ANC?
MR NYAWUZA: I became first aware of the ANC whilst I was still at school and started associating myself with the organisation when Mr Mandela was released in 1990, that is when I became an active follower of the ANC.
MR PANDAY: Now as an active follower of the ANC, was there an ANC branch in the area you resided?
MR NYAWUZA: Yes, there was.
MR PANDAY: And who was the leader of that branch?
MR NYAWUZA: It was Mr Mthambo.
MR PANDAY: Besides being a follower of the ANC, did you actively take part with any of the struggles of the ANC?
MR NYAWUZA: Yes, I would say at that time I was an activist, I was a prominent activist and because of the political conflict of the time, I was thus involved in that conflict.
MR PANDAY: Now when you refer to political conflict, are you referring to political conflict in your area, or the country as a whole?
MR NYAWUZA: The situation was tense in the entire country including where I resided, that is why I participated in the ANC within my area.
MR PANDAY: Now Mr Nyawuza, you said the political tension was such in your area as well, what sort of political problems were you experiencing in your area?
MR NYAWUZA: We had a problem with our political foes, which was the IFP, with whom we had serious conflict.
MR PANDAY: Now what sort of conflict was being experienced between the IFP and the ANC in the area?
MR NYAWUZA: We were involved in a war.
MR PANDAY: Now when Mr Lembede was killed, was his killing as a result of a political act?
MR NYAWUZA: Yes, it was politically motivated.
MR PANDAY: Now could you explain to the Commission as to how, or as to why you consider his killing a political killing?
MR NYAWUZA: At that time, we would camp in the evenings because we used to suffer attacks and also launch counter-attacks at Unit 17 in our lives. We were at such a camp when Mr Mthambo arrived. As I mentioned before, he was the Chairperson in the area. He was patrolling the camps as usual. After that Mr Mkhize, Ndimande and Mbambo, who was also known as Ernest Mahlane, arrived. They informed us that they were on their way to Mr Mthambo's home and they were fortunate to find Mr Mthambo at camp. Ndimande then informed Mr Mthambo that there was a matter that he had heard from Mbambo and Mr Mthambo asked him to explain what that was about.
Mbambo then informed us that there was someone, a business man from their area, Ngonyameni, a certain Mr Lembede, who was supporting the IFP by purchasing firearms for them. He went further to mention that some comrades had been attacked at Mr Lembede's shop. Mr Mthambo then asked just how far Mr Lembede's shop was from where we were and Mbambo responded that it was quite a distance, you could not travel there on foot, you would have to get a vehicle. Mthambo then went further to say that that situation will create a problem for us because Unit 17 and Ngonyameni were close, such that those weapons that were used in Ngonyameni could easily reach Unit 17, which would affect us badly. He then said that that person should be eliminated immediately. He then ordered myself, Ndimande, Mkhize and Meyiwa to go attack Mr Lembede on a Friday.
MR PANDAY: Now, Mr Nyawuza, before you continue, you talk about the other people that were ordered, you talk about Mr Meyiwa, Mr Ndimande and did you mention Elijah? No. have you mentioned Elijah? I can't recall that.
MR NYAWUZA: No, I have not as yet mentioned him.
MR PANDAY: Now with regards to Mr Ndimande and Meyiwa, were they also part of the ANC?
MR NYAWUZA: Yes, they were.
MR PANDAY: Now what sort of role did they play in the ANC?
MR NYAWUZA: They were active members of the ANC and were also with us when we protected the area.
MR PANDAY: And on the day in question when you went to attack Mr Lembede, how many of you all went to attack him?
MR NYAWUZA: There were five of us, the driver was the sixth person, which was Mr Nyawuza, my father.
MR PANDAY: Now who was the fifth person?
MR NYAWUZA: It was Mbambo, or Ernest Mahlane. He was going to show us the person who we were going to attack.
MR PANDAY: And did Mr Ernest Mbambo remain with you all when Mr Lembede was attacked?
MR NYAWUZA: Yes. I and him and Ndimande went inside the shop and he pointed out the person to us who was inside the shop.
MR PANDAY: And did Mr Ernest remain in the shop, or did he leave?
MR NYAWUZA: After he had pointed out Mr Lembede to us, we went out. We all went out and thereafter he went to the car and four of us went back into the shop.
MR PANDAY: Nor Mr Nyawuza, in your evidence you mentioned that Mr Mthambo met you all at the camp. What sort of camp was this?
MR NYAWUZA: It was a camp who's objective was to ensure or stand guard so that if our opponents come to attack, we are in a position to see them and defend ourselves.
MR PANDAY: Now at this camp, who else was present with you before Mr Mbambo arrived?
MR NYAWUZA: There was Meyiwa and other comrades from my area.
MR PANDAY: Now you mentioned that at this camp while you were there, Mr Ndimande arrived with Ernest Mbambo, is that correct?
MR NYAWUZA: Yes, he was with Mr Mbambo and Mr Mkhize.
MR PANDAY: Now at that time had you known, or did Ndimande tell you of Mr Lembede being an IFP supporter?
MR NYAWUZA: It was not Ndimande who told us but it was Mr Mbambo who informed us.
MR PANDAY: Right. Now you mentioned that Mr Lembede was supporting the IFP by giving them firearms, is that correct?
MR NYAWUZA: That's correct.
MR PANDAY: And that such were used in attacks of comrades.
MR NYAWUZA: That's correct.
MR PANDAY: Now do you recall any of the comrades, or do you recall the names of comrades that were attacked?
MR NYAWUZA: No.
MR PANDAY: And do you know from which area these comrades were from?
MR NYAWUZA: What I would explain is, the weapons were used to launch attacks on the other group, for instance, if the ANC acquired firearms, we would use them to defend ourselves against the IFP and vice versa.
MR PANDAY: Now during the period when Mr Lembede was killed, were there any attacks being launched against the ANC in your area?
MR NYAWUZA: Yes. As I stated before, we were at camps because of the fights that were going on between us and the IFP.
MR PANDAY: And the attacks that were being launched on the ANC, was it attacks involving physical force or was it attacks involving the use of weapons?
MR NYAWUZA: It involved weapons.
MR PANDAY: What sort of weapons were being used?
MR NYAWUZA: It was an assortment of weapons, such as firearms and if at close range, they would also use assegais and knives, such weapons.
MR PANDAY: Now Mr Nyawuza, can you please give the Committee a detailed account and precise account as to what Mr Mthambo told you with regards to the attack on Mr Lembede and as to who he included to be part of this attack on Mr Lembede? Now take your time. Think of the incident, what were your orders and who were included in these orders?
MR NYAWUZA: As I mentioned earlier on, after Mbambo had informed Mr Mthambo in our presence of the problem they were experiencing, that is of that gentleman who was assisting the IFP, even Mr Mbambo himself had had to flee his area because of the situation and there were also comrades who had been killed at Mr Lembede's shop. Mr Mthambo came to the decision that this person should be eliminated immediately because the weapons that were used in Ngonyameni would be filtered to Unit 17 with whom we were fighting. He then selected people who were going to go on that mission, which was myself, Ndimande, Mkhise and Meyiwa. Mr Mbambo was going to show us the place and even point out that person because he was unknown to us.
MR PANDAY: Right. Now Mr Nyawuza, how were you going to travel to the place where Mr Lembede was mentioned to have been in?
MR NYAWUZA: That issue was discussed and it transpired that Mr Nyawuza had a vehicle and he could be asked to transport us to that place. Mr Mthambo then ordered them to pass by Mr Nyawuza's home to inform them that he should take us to Ngonyameni on Friday.
MR PANDAY: Now Mr Nyawuza, before we go on, could you please refer to as Mr Nyawuza, your father, as my father, so that it does not create any confusion? Now more importantly, now your father, Mr Nyawuza, was he a member of the ANC as well?
MR NYAWUZA: Yes because the area was an ANC stronghold.
MR PANDAY: And what sort of role did he have in the ANC?
MR NYAWUZA: He was a resident in the area and also he played a role because he associated himself with whatever the organisation was doing. For instance, sometime he would collect money to purchase ammunition and firearms and sometimes he would assist by providing transport to comrades who had been injured, perhaps taking them to the hospital or wherever they needed to be transported to.
MR PANDAY: Now Mr Nyawuza, upon receiving the information by Mbambo, that's Ernest, was there any sort of ...(intervention)
CHAIRPERSON: Could I interrupt at this stage? Was Mr Mbambo, whom you just referred to as Ernest, also known as Ernest Sipho Mahlane?
MR NYAWUZA: Yes.
MR PANDAY: May I proceed, Mr Chairman? Thank you. Now Mr Nyawuza, when Mr Mbambo informed all of you of Mr Lembede, was there any sort of investigation done to confirm the activities of Mr Lembede?
MR NYAWUZA: No, I would be lying because everything was organised within a short space of time and also for the fact that he stayed a bit of a distance from our area.
MR PANDAY: Now you mentioned earlier on in your evidence that Mr Mbambo comes from an area, what was the name of the area that he had come from?
MR NYAWUZA: He used to reside at Ngonyameni and left that area and came to reside with us at Nzamane and he was a comrade in the ANC.
MR PANDAY: Now you also mentioned in your evidence that there were attacks being launched against the ANC in the area from which Mr Mbambo came, is that correct?
MR NYAWUZA: No, attacks were not launched by people from Ngonyameni. I said we were attacked by people from Unit 17 which was a hostel. Those were the people with whom we were involved and had conflicts.
MR PANDAY: Now, Mr Nyawuza, after having received the orders from Mr Mthambo to attack and kill Mr Lembede, where did you acquire your weapons, namely your firearms?
MR NYAWUZA: I and Meyiwa received our firearms from Mr Mthambo. Ndimande had his personal firearm.
MR PANDAY: Would it be correct to assume that on most occasions, the comrades in your area were armed?
MR NYAWUZA: That's correct.
MR PANDAY: Now besides the three of you having weapons, did any of the other members that went to attack Mr Lembede have weapons?
MR NYAWUZA: As I explained, Mr Ndimande had his personal firearm.
MR PANDAY: You mentioned six of you had originally gone out to Mr Lembede's shop. The remaining three, that is your father, Mr Mbambo and the other person, I can't .... Were they also armed?
MR NYAWUZA: No. There were four people who were armed. My father and Mbambo were not armed.
MR PANDAY: Now is it correct then, after you received those orders, you went to collect your father to assist you in the transport?
MR NYAWUZA: From the camp they mentioned that they would go via my father's to request him to take us to Ngonyameni on Friday and that is what they did.
MR PANDAY: Now, the meeting you had at the camp was the day before or a few days before you were going to kill Mr Lembede?
MR NYAWUZA: I think it was on a Wednesday when we discussed this matter.
MR PANDAY: And was Mr Lembede then killed on that Friday?
MR NYAWUZA: Yes, on the Friday, same week.
MR PANDAY: Now, when you went to see your father for the transport, or let me rephrase - let me give you another question. Now it would be correct to assume that all this information you had on the Wednesday about Mr Lembede?
MR NYAWUZA: That's correct.
MR PANDAY: Now at the time, were you residing with your father in the area?
MR NYAWUZA: Yes, I was.
MR PANDAY: Now on the Thursday, did you not discuss the matter with your father?
MR NYAWUZA: No, I did not discuss it with him.
MR PANDAY: Now when exactly, or on which day did you father know that he had to accompany you all for the killing of Mr Lembede?
MR NYAWUZA: As I mentioned earlier on, when they left the camp, they said they were going to go to my father's home and Mr Mthambo was to request him to take us to Ngonyameni on Friday. When they returned, Mr Mthambo informed us that the trip for Friday has been arranged and my father had been informed and he informed Meyiwa that he will bring him the firearms the following day, which was a Thursday.
MR PANDAY: Now after all was planned for the Friday, where did you all meet before going to Mr Lembede's shop?
MR NYAWUZA: On the day which was a Friday, Mr Mbambo, Mkhize and Ndimande came to my home. They told us that they had passed by Meyiwa's home, who said we were going to pick him up on the way. We then got into the car and picked up Mr Meyiwa on the spot as arranged and on the front seat there was Meyiwa and Mbambo and my father. Mbambo was the one giving directions. As we arrived, the car was parked on the main road and all of us alighted except for the driver. We walked a short distance and stopped. Two persons remained behind.
MR PANDAY: Mr Nyawuza, just before you go on. You mentioned that the driver remained behind, all of you walked a short distance and two persons remained behind. What were the names of the two persons that remained behind?
MR NYAWUZA: Those who remained a distance away from the shop were Mr Meyiwa.
MR PANDAY: And who's the other person?
MR NYAWUZA: And Mkhize.
MR PANDAY: Now after they remained, is it correct then that three of you proceeded to the shop?
MR NYAWUZA: Yes, the three of us, myself, Ndimande and Mbambo proceeded to the shop. We went into the shop, pretended to be buying and Mbambo showed us Mr Lembede. We then left the shop and went to the other two and informed them that yes, we had seen Mr Lembede. Mr Mbambo then proceeded to the vehicle for the reason that he was known in that area and therefore could not be seen to be taking part in the attack. The four of us then went back to the shop.
MR PANDAY: Now you say that Mr Mbambo was known in the area, do you know if Mr Lembede knew Mr Mbambo?
MR NYAWUZA: Mr Mbambo informed us that he was known in the area because he had grown up there. I do not have personal knowledge of whether Mr Lembede knew him.
MR PANDAY: Okay and when Mr Mbambo took you all to the shop to point out Mr Lembede, did Mr Lembede see you all pointing him out?
MR NYAWUZA: I will say yes he saw him because Mbambo pointed him out to us.
MR PANDAY: And how did he point him out?
MR NYAWUZA: He was the only older person in the shop.
MR PANDAY: Now, you say you think that Mr Lembede may have seen Mr Mbambo point him out. Was there no suspicion raised when Mr Lembede saw Mr Mbambo?
MR NYAWUZA: I said Mr Mbambo pointed out Lembede to us. In fact he told us that he's the one who's the older one after we had been served and that is when we went out of the shop.
MR PANDAY: Now after you returned and you informed the other two that you now can identify Mr Lembede, how many of you again returned to the shop?
MR NYAWUZA: As I stated earlier on, Mbambo returned to the car and four of us went back to the shop.
MR PANDAY: Now is the four, the two that remained plus yourself and Mr Ndimande?
MR NYAWUZA: Yes, those two Meyiwa, Mkhize and us.
MR PANDAY: Now at that time now was it already known as to who was going to shoot Mr Lembede?
MR NYAWUZA: Yes, we had both seen him, that is myself and Mr Ndimande.
MR PANDAY: So between you and Ndimande, were both of you going to shoot him or either one of you?
MR NYAWUZA: It was Mr Ndimande.
MR PANDAY: And what was going to be the purpose of the other two accompanying you and Ndimande?
MR NYAWUZA: Each one of us had a position to cover because we had all been assigned to do the job, so we were supposed to do it properly and be able to return.
MR PANDAY: Now what was your job, what job was assigned to you?
MR NYAWUZA: I was going to go into the shop with Ndimande. Ndimande would shoot him and I would cover Mr Ndimande in case anyone tries to fight back, that is what I was going to do.
MR PANDAY: And what was the job assigned to the other two people that accompanied you?
MR NYAWUZA: One stood at the door and one stood outside on the verandah and they were on the look-out covering the two of us who were inside.
MR PANDAY: And with Mr Lembede, was there anybody else in the shop with him when you went back?
MR NYAWUZA: Yes there were people, customers who were buying.
MR PANDAY: And were there any other assistants with Mr Lembede?
MR NYAWUZA: Yes, there were.
MR PANDAY: How many?
MR NYAWUZA: I cannot tell because my mind concentrated on the task we were about to do because there were other people present as well, that is the customers.
MR PANDAY: Now Mr Nyawuza, who did eventually shoot Mr Lembede?
MR NYAWUZA: As Mr Ndimande drew his gun, someone from inside the shop grabbed him.
MR PANDAY: And after he was grabbed, what took place thereafter?
MR NYAWUZA: They struggled for Ndimande's weapon. I then shot, fired a shot at Mr Lembede.
MR PANDAY: And was it just one shot or many shots that you fired?
MR NYAWUZA: I fired one shot.
MR PANDAY: And did this shot hit Mr Lembede?
MR NYAWUZA: Yes. I saw that he was hit.
MR PANDAY: Now after having shot him, what happened to you and Ndimande?
MR NYAWUZA: After I shot him, he fell. Ndimande then ran out and I walked backwards because my firearm was home-made which carried .303 bullets, I went backwards and went out of the door. As we came out the vehicle was already parked near the shop and we got in there and drove off. Mr Ndimande's weapon was left inside the shop.
MR PANDAY: The two people that were left as look-outs, did they not come to the assistance of you and Ndimande?
MR NYAWUZA: No, because the task had been accomplished after I shot him. We left thereafter.
MR PANDAY: After having shot Mr Ndimande, did you all take any cash or items from the store?
MR NYAWUZA: No, we did not take anything from the shop because our intention was to kill Mr Lembede, we did not have any other intention.
MR PANDAY: Now after completing the mission, did you all go back to Mr Mthambo and inform him of the completion of this mission?
MR NYAWUZA: Yes, when we left, we went past Mr Mthambo's home and informed him of how our task had gone.
MR PANDAY: And was this task then considered as a completed mission?
MR NYAWUZA: Yes, it was completed in that way.
MR PANDAY: And what had happened to the weapons that Mr Mthambo had given?
MR NYAWUZA: We left them with him when we returned, as we went there to give him the report back.
MR PANDAY: Now Mr Nyawuza is it correct then to assume that the sole purpose of having to go and kill Mr Lembede was because of him being a threat and being part of the IFP?
MR NYAWUZA: Yes, I would say so.
MR PANDAY: And as such he was involved in the supplying of weapons that were used against the ANC?
MR NYAWUZA: Yes, he was a great threat. I'll say he was the distributor of the firearms.
MR PANDAY: Is it also then correct to assume that you were acting on the information and instructions that you were given by Mr Mthambo who was the leader in your area?
MR NYAWUZA: That's correct, we did it following Mr Mthambo's instructions.
MR PANDAY: And when you appeared in court, did you in any way, or did you attempt to inform the court that your action was as a result of a political motivation?
MR NYAWUZA: No, I could not have explained that in court.
MR PANDAY: Why do you say you could not have? Is there any particular reason?
MR NYAWUZA: Firstly, I pleaded not guilty because the judges were from the apartheid era, the same judges who had sentenced comrades to death. I could not divulge the truth and say that my actions had been in pursuance of the ANC struggle.
MR PANDAY: Mr Nyawuza finally, did you benefit financially in any way from this attack on Mr Lembede?
MR NYAWUZA: No, I did not benefit financially.
MR PANDAY: Thank you Mr Nyawuza. Mr Chairman, that is the evidence for the applicant.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Thank you.
MR DEHAL: Sorry Sir, would you bear with me for a while? Thank you Chair, I have no questions.
NO QUESTIONS BY MR DEHAL
CHAIRPERSON: Any questions?
MS REDDY: Yes, Mr Chairperson, may I proceed?
CROSS-EXAMINATION BY MS REDDY: Do you confirm that at the time of the ...(indistinct) in question, you belonged to the ANC?
MR NYAWUZA: Yes I do confirm that.
MR REDDY: Do you have any documentary proof to support your statement?
MR NYAWUZA: No, I do not have documents to support that.
MS REDDY: Can you tell us where's your membership card to prove that you belong to the ANC?
MR NYAWUZA: Let me clarify. I was a supporter or a follower of the ANC, I never was a member, a fully paid-up member, therefore I had no membership card.
MS REDDY: Mr Nyawuza, I draw you to page 19 of your affidavit on your application form where you apply for amnesty, para (d) where you said
"I became a member of the disciplinary committee in the ANC"
which clearly points out that you were a member of the ANC.
MR NYAWUZA: Yes, I was in the disciplinary committee.
MS REDDY: So what is the position now? Were you a member or were you a supporter because when I just now asked you the question, you said you were not a member, you were just a supporter.
MR NYAWUZA: It all depends on the extent of the role you play in your organisation. It was because of the role that I played that I was elected to be in that disciplinary committee. I did not have an ANC membership card. I was a firm supporter who played an active role in the organisation.
CHAIRPERSON: Tell me, when you were charged with this murder, there were originally five of you but then the trial went on with three of you.
MR NYAWUZA: Yes, that's correct.
CHAIRPERSON: Were you defended?
MR NYAWUZA: Yes, I was defended.
CHAIRPERSON: Do you know who paid for your defence?
MR NYAWUZA: No, I was defended by a State Attorney.
ADV SANDI: But did you not ask the ANC and Mthambo to organise a lawyer for your defence?
MR NYAWUZA: No, I did not get that opportunity to contact Mr Mthambo for them to get me an ANC lawyer, it was the State who appointed an attorney for me.
ADV SANDI: Did the ANC or Mthambo do anything for you during the time you were going through the criminal prosecution?
MR NYAWUZA: No.
ADV SANDI: Thank you.
JUDGE POTGIETER: Can I just finish that off. Did you and your father, did you stand your trial throughout or did you disappear at one stage?
MR NYAWUZA: Yes, there was a time when we disappeared.
JUDGE POTGIETER: You and your father?
MR NYAWUZA: Yes.
JUDGE POTGIETER: Did you run away?
MR NYAWUZA: Yes.
JUDGE POTGIETER: Sorry Ms Reddy.
MS REDDY: Thank you. Mr Nyawuza, would you agree if I told you that had you had a membership card, it would have actually been to some great advantage at this amnesty hearing?
MR NYAWUZA: Yes, I do agree with you, but more than that, what is going to help me more is to tell the truth before this Committee, because the people who were with me when we committed this offence are full members of the ANC. I think that is also going to assist me, notwithstanding the fact that I as a person did not have a membership card.
MS REDDY: Okay, Mr Nyawuza, I'm going to actually tell you that we're going to call in Mbambo to give evidence here today and I put through to you his version that actually says that you actually planned the robbery, that is why the proof of your membership becomes the crux of the matter here. What is your response to Mbambo's version where he said you and the other comrades, or should I say the other applicants, actually planned the robbery.
JUDGE POTGIETER: Ms Reddy, is Mr Mbambo's version that he was not involved?
MS REDDY: No, it does confirm that he was involved, but his own version will be put through, but the crux of it was they planned the robbery and he's going to give evidence to that extent here today.
JUDGE POTGIETER: They planned this operation?
MS REDDY: This robbery.
JUDGE POTGIETER: They planned this operation as a robbery, not as an assassination of a political enemy?
MS REDDY: Absolutely not according to instructions.
JUDGE POTGIETER: Yes, you understand that?
MR NYAWUZA: Yes, I understand that.
JUDGE POTGIETER: Respond to that.
MR NYAWUZA: Yes, I in turn respond. What Mr Mbambo is alleging is the same thing that he said in Court when he collaborated with the assistant then we denied the allegations in Court, we denied the murder in Court because of the situation then and he used that in that Court of Law and he was acquitted because of his testimony and he used that opportunity for him to be released because we were not in a position to reveal to the Court that he is the person who brought the information to us so that Mr Lembede could be attacked. Today we are here to reveal that before this Committee and before Mr Lembede's family, the motive why Mr Lembede was killed.
MS REDDY: Did you ask anyone who knew of your political affiliation to come here today and corroborate your evidence?
MR NYAWUZA: No, I did not.
MS REDDY: Can you tell us why that situation is so?
MR NYAWUZA: There is a lot of bloodshed that took place at Nzamane and people were displaced and I believe that the leadership in the area is not the same people who were leaders then, some of the people I was with left the area, some are dead and we could not contact people like Mthambo. I don't even know where he is at present, for him to support this evidence.
ADV SANDI: When was your last contact with Mthambo?
MR NYAWUZA: It was when I was arrested for this incident.
ADV SANDI: Where was that? Did he come to see you in police custody or what?
MR NYAWUZA: To see him face to face, the last I saw him was before my arrest.
ADV SANDI: Thank you.
MS REDDY: Mr Nyawuza, I actually accept your answer that you gave me, but I find it a little bit unrealistic when you say that you couldn't find at least one person to corroborate your version that you were politically affiliated.
MR NYAWUZA: I also regret that fact that I was unable to contact the most important person, a person like Mr Mthambo. It's the political situation that has affected these events, therefore I am sorry, but I could not contact him.
MS REDDY: Mr Nyawuza, I put it to you that you actually couldn't get anyone here today to corroborate your evidence because the motive of the killing was simply not a political reason but that of robbery.
MR NYAWUZA: No, I dispute what you're saying, I cannot accept that.
MS REDDY: What intelligent work did you do to make sure that Mr Lembede, the deceased, was actually supplying weapons to the IFP?
MR NYAWUZA: I will put it this way. If a person who grew up in the same area could come to us and tell us, spell out that comrades had been killed at Mr Lembede's shop, we took that matter very seriously and Mr Mthambo made a decision immediately. This was information we received from a person from the same area, it was not allegations that were received from people who did not know Lembede, or who did not know the area, therefore we deemed it sufficient information.
MS REDDY: So you would agree if I say to you that you and the other applicants here today, could very well be confused that Mr Lembede was the one providing the weapons to the IFP? Would you agree with that?
MR NYAWUZA: It will be Mr Mbambo's responsibility to clarify that if perhaps he had pointed out a wrong person, but I shot at a person whom he had pointed out as Mr Lembede.
MS REDDY: I'm actually not concerned about Mbambo's responsibility. The question that I'm asking you to agree- or what I'm asking you to agree with, it very well could have been that it was a mistaken identity and you killed a wrong person because simply because you didn't do any concrete or intelligent work to find out whether Mr Lembede was actually providing the weapons.
MR NYAWUZA: I cannot agree with you there. What I'm saying is, I shot at a person who had been pointed out by Mbambo as the man we were looking for. I did not make a mistake there. I shot a person who had been pointed out to me. If there was a mistake made, he must have made that mistake himself, that is Mr Mbambo.
JUDGE POTGIETER: Sorry. Did you know Mr Mbambo before that meeting on the Wednesday where you were camping?
MR NYAWUZA: Yes, I knew him.
JUDGE POTGIETER: How did you know him?
MR NYAWUZA: I knew him as a person who was at the time residing in the area.
JUDGE POTGIETER: Residing in your area?
MR NYAWUZA: Yes, in the Nzamane area.
JUDGE POTGIETER: Did you know anything else about him?
MR NYAWUZA: Yes, I knew that he was also a member of our organisation. That was all I knew about him.
JUDGE POTGIETER: You knew that he was a member? Did you know that he was a member of your organisation?
MR NYAWUZA: I am not in a position to say whether he was a full member or just a supporter, but for the reason that that area was an ANC stronghold, he also played a role as a supporter or as a follower.
JUDGE POTGIETER: So did you conclude from the fact that he was residing in that area that he was also supportive of the ANC?
MR NYAWUZA: That's correct, because we were involved in all activities together, in the activities of the organisation.
JUDGE POTGIETER: So that was all that you knew about him? He lived in the area and you assumed that he was supportive of the ANC? Was there nothing else that you knew about him?
MR NYAWUZA: No because he associated himself with the policies and the activities of the organisation and that indicated to me that he was indeed a supporter.
JUDGE POTGIETER: Sorry, Ms Reddy.
ADV SANDI: Sorry Ms Reddy, I'm afraid I'll have to ask you to explain this a bit. What exactly did he do? Did he do anything actively on behalf of the ANC as a supporter as you have said?
JUDGE POTGIETER: As I stated earlier on, we were fighting, defending the ANC against the IFP from Unit 17. He did play a role there. He would take part in such fights, that is why I trusted and believed that he was also a supporter. He would also go to camps and partake in activities of the ANC.
MS REDDY: Did the killing of Mr Lembede stop the conflict between the ANC and IFP?
MR NYAWUZA: In killing Mr Lembede, would assist us as the ANC because the supply of weapons to the IFP will be stopped.
ADV SANDI: Can I just come in there? Would you say you knew him well in the light of what you've just said about the deceased? Did you know him well?
MR NYAWUZA: No. As I stated before, I did not know him and I did not even know where he resided.
ADV SANDI: Yes, but surely you must have been surprised to hear that he was actually supplying the IFP with arms to wage this war against you?
MR NYAWUZA: Please repeat that question.
ADV SANDI: If he was one of you then as you've said you must have been surprised, not so, to hear that he was supplying the IFP with weapons, arms?
MR PANDAY: Sorry Mr Chair, I think you've just confused - you mention that if he was one of you, are you talking about Mr Lembede or Mr Mbambo?
ADV SANDI: Lembede, I'm talking about Lembede.
MR PANDAY: Mr Lembede was not regarded as one of them, they were informed of him being one of the people supporting the IFP. I don't think it was ever contended by the applicant that Mr Lembede was one of them. That was the information that was relayed to them about Mr Lembede.
ADV SANDI: Oh sorry, I have ...
MS REDDY: That is correct.
ADV SANDI: Oh I misunderstood him, sorry.
JUDGE POTGIETER: Mr Nyawuza, the important point that Adv Sandi has touched upon, can I just carry on with that? Even - do I understand your evidence correctly? Even Mr Mthambo didn't know this Mr Lembede or in fact he didn't even have an idea where Lembede's shop was, not so?
MR NYAWUZA: That's correct.
JUDGE POTGIETER: So none of you, apart from Mbambo as you testified, had any idea about Mr Lembede?
MR NYAWUZA: No, none amongst us knew about him. It was Mr Mbambo who came to inform our Chairperson in our presence about this.
JUDGE POTGIETER: It was the first time in your life that you heard about Lembede at that meeting on the Wednesday, would that be right?
MR NYAWUZA: Yes, that was the first time.
JUDGE POTGIETER: Yes, thank you. Ms Reddy, sorry.
CHAIRPERSON: Mr Mbambo came to tell you at this meeting, he was a loyal ANC member who was trying to help the ANC, is that the position?
MR NYAWUZA: That's correct.
CHAIRPERSON: But at the trial he gave evidence against his colleagues, is that correct?
MR NYAWUZA: That's correct.
CHAIRPERSON: While you were pleading not guilty and saying you weren't there, he was saying you forced him to go and point out the shop?
MR NYAWUZA: That's correct, that's what he stated before the Court.
CHAIRPERSON: And that you were going there to rob it?
MR NYAWUZA: That's correct.
CHAIRPERSON: Carry on.
MS REDDY: Mr Nyawuza, I asked you whether the killing of Mr Lembede stopped the conflict between the ANC and the IFP and you didn't give me a direct answer. Could you just respond to that question again?
MR NYAWUZA: I responded by saying that in killing Mr Lembede, we would benefit by stopping the supply of weapons to the IFP in the Ngonyameni area before those arms could be transported or be supplied to Unit 17, IFP members, with whom we were involved in that conflict. It did not as such stop the fighting between the two organisations. We were also helping out one of our comrades because his problem affected all of us, that is why we went to attack Mr Lembede.
MS REDDY: Mr Nyawuza, why did you and your comrades choose in particular a Friday?
MR NYAWUZA: In my testimony I already stated that it was Mr Mthambo who decided on that date and he selected the people who were going to carry out the attack, therefore I cannot respond to that question why he chose that day.
MS REDDY: If I were to put it to you that on a Friday lots of people actually do shopping and plus there would be lots of cash in the till of Mr Lembede and if I were to put to you that robbery was the motive and that is why you and your comrades actually chose the Friday, what would you respond thereto?
MR NYAWUZA: I would dispute that. As I've just stated, we did not discuss it with Mr Mthambo, as in regards to the date he made that decision and with regards to the robbery, I do not know what you mean because we did not rob anything from the shop, we just went there to attack Mr Lembede. This happened in a rural area. That place is rural. It is not a township, therefore I do not know about what you mean about a Friday, that it would be busy and so forth.
JUDGE POTGIETER: I'm sorry. Did you consider killing Mr Lembede at his home at night time when it's quiet?
MR NYAWUZA: We who went out to carry out the attack, did not decide on where we were going to launch the attack, it was the person who showed us directions who informed us of where he could be found and he took us to the shop and pointed him out to us. We did not plan on where we were going to attack him.
JUDGE POTGIETER: Didn't you, in your meeting when you were discussing this, didn't you look at all the possibilities and say to one another: "Wouldn't it perhaps be safer to kill the man at his house at night instead of going and kill him in front of all his customers and his assistants who can identify you afterwards? Didn't you think of the less risky way of executing this assassination?
MR NYAWUZA: No. We did not discuss that because Mbambo informed us that we would find him at the shop and that is where we went and that is where he pointed him out. If he had told us that we would find him at home, that is where we would have gone.
JUDGE POTGIETER: Do you agree that would have been a less risky way of going about the assassination, instead of killing him in full view of all his assistants and possible customers in the shop?
MR NYAWUZA: We did not think of that. We just thought of getting him and getting him and shooting him.
JUDGE POTGIETER: Ms Reddy.
MS REDDY: Thank you Mr Potgieter. I was just on the brink of asking those questions. Mr Nyawuza, at the time when Mr Mbambo pointed out the deceased to you, why didn't you and your comrades actually finish the job at that point in time? When I say finish the job, I mean why didn't you all shoot him at that instant?
MR NYAWUZA: As I stated earlier on, Mbambo comes from that area of Ngonyameni, he grew up there. He left his area because of the political situation, that information we got from him, therefore we could not attack him in his presence when there were witnesses who would be able to identify him, that is why we left, we went to the vehicle and then the four of us returned and attacked him and the four of us were not known in that area.
MS REDDY: Mr Nyawuza can you tell this ...(intervention)
CHAIRPERSON: ... have a short adjournment?
MS REDDY: ...(indistinct - mike not on)
COMMITTEE ADJOURNS
ON RESUMPTION
NKOSINATI EMANUEL NYAWUZA: (s.u.o.)
CROSS-EXAMINATION BY MS REDDY: (cont)
Thank you Mr Chairperson. Mr Nyawuza, can you actually tell us why you actually jumped bail when the remaining four accused were tried?
CHAIRPERSON: Remaining three isn't it? He and his father jumped bail.
MS REDDY: Yes, that's correct. Sorry.
MR NYAWUZA: In 1994 I was working, I was working under the protection unit, I was guarding the Ministers and when this case was heard, I was not working around Durban and I didn't know the date, therefore I didn't go back to find out, I only heard in December that they had been sentenced, Meyiwa, Ndimande had been sentenced.
MS REDDY: But you very well knew that you were implicated in a charge of murder.
MR NYAWUZA: Yes, I knew.
MS REDDY: What steps did you take to find out about the date?
MR NYAWUZA: No, I didn't take any steps.
MS REDDY: Would you agree if I told you that there was an onus on you to actually find out about the date?
MR NYAWUZA: Yes, I will agree with you that the onus was on me to find out but I didn't do it. I do have one reason that I can put before this Committee, one reason that led me not following this.
MS REDDY: After you learned that the other comrades were sentenced, what steps did you thereafter take?
MR NYAWUZA: I will give you same reason which I just gave. There were no steps which I took. I do have one particular reason that I can put before this Committee as to why I didn't take any steps.
MS REDDY: Can you relate why?
MR NYAWUZA: Yes. The reason I didn't take any steps, what I did was not for me, it was for my organisation, for ANC. What I did at that time, I saw it as something that I had to do, therefore I didn't see any reason why I should go before the Judge and testify about that, because at that time I knew the harsh sentences which the Judges used to give to other comrades, therefore my aim was not to go and appear before them, because what I did, I was doing it for my organisation, the ANC, that is why I didn't take any steps.
MS REDDY: Mr Nyawuza, I put it to you that the only reason you didn't be present at the trial was you knew very well that the motive of the killing was simply robbery and not any political reason.
MR NYAWUZA: No, not at all, I dispute that. The reason I didn't take any steps, it's the very same reason I just put before this Committee.
MS REDDY: No further questions.
NO FURTHER QUESTIONS BY MS REDDY
CHAIRPERSON: What happened when your father was then brought back before the Court?
MR NYAWUZA: He was also sentenced.
CHAIRPERSON: And you didn't go back then either?
MR NYAWUZA: No, I didn't.
CHAIRPERSON: Thank you.
CROSS-EXAMINATION BY MS THABETHE: Thank you Mr Chair. Where were you staying at the time of the incident of the killing of Mr Lembede? Where were you staying?
MR NYAWUZA: In Nzamane.
MS THABETHE: And how far is Nzamane from Ngonyameni?
MR NYAWUZA: It is difficult for me to estimate the distances. It is just outside Umlazi Township.
MS THABETHE: How many hours drive would you say by car?
MR NYAWUZA: I'm not certain, but I will say it's less or less than an hour.
MS THABETHE: How long did you drive when you were going there that day? Would you remember? About an hour, would you say?
MR NYAWUZA: I would say less than an hour and I'm just estimating but it can never be more than an hour.
MS THABETHE: In your father's statement at page 48, I'm just checking the paragraph - on paragraph 2, he seems to suggest that he decided to take you, after being asked by his neighbour to take him to Ngonyameni, he then decided to take you to accompany him. He doesn't seem to give the picture that you've given. What would your response be to that?
MR DEHAL: Sorry, Chair, for the interruption. Perhaps it would be fair at this stage to place on record, my instructions are that this affidavit is not one that the father, Elijah Nyawuza, second applicant, will confirm as correct. Indeed he says his signature on the hand-written aspect thereof, on pages 50, 51, 52 are his, it's a cross made by him, but the affidavit was never read to him, he did not confirm its correctness and when I read the contents to him, he distanced himself from it. Thank you.
JUDGE POTGIETER: Yes, Ms Thabethe, perhaps you should put it on the basis that if his father had said that, whether that would be correct or not, because it seems as if this is in dispute.
MS THABETHE: Yes and I was also interested to find out whether he disputes all the contents or some of the contents in the statement.
JUDGE POTGIETER: Yes, you'll probably find that out as the hearing proceeds but at this stage, insofar as paragraph 2 is concerned, that's the best you can do, is to ask him if his father indeed said that, what his response would be.
MS THABETHE: Thank you. I'm indebted to you. I rephrase my question then. If your father would come and say he took you to Ngonyameni Reserve to accompany him, what would your response be to that allegation?
MR NYAWUZA: I would dispute that because it wouldn't be the truth, he will be telling this Committee a lie. I will dispute that.
MS THABETHE: Right. On page 75, that's the judgment, it's indicated that Mahlane stated in Court that you are the ones who actually approached him to commit the crime of robbery. What would your response be to that?
MR NYAWUZA: I will dispute that completely.
MS THABETHE: If also he would come and say you knew about Mr Lembede, through Mr Meyiwa, what would your response be to that?
MR NYAWUZA: That will be a blue lie, same lie he testified in Court when he was making sure that we were being sentenced. The person who talked about Mr Lembede, it was him when we were in the camp. He came in that camp and told our Chairperson, Mr ...(indistinct). We were together with Mr Meyiwa. No one else told us about Mr Lembede besides him himself.
MS THABETHE: The judgment also indicates that Mr Joseph Mkhize said the very same thing that Mr Mahlane said. Do you know why this would be the case.
CHAIRPERSON: Where's this?
MS THABETHE: Page 72 of the judgment, towards the end, it's the second last paragraph.
MR DEHAL: Sorry and I didn't get the question because I think my learned colleague was asking the question whilst the interpretation was coming in.
MS THABETHE: Okay. Sorry. My question was, the judgment seems to indicate that accused number 1 who is Mahlane and Joseph Mkhize, gave the same version, they were consistent with each other. My question is, do you know why Joseph Mkhize would give the same evidence as Mahlane?
MR NYAWUZA: Let me highlight one thing, the person who testified in Court was Mr Mbambo and the Court used Mbambo's evidence under oath. Now I'm confused that how can the Court use any evidence which was led by someone not under oath like Mkhize. I am confused, I don't know how I can answer this question to satisfy you.
CHAIRPERSON: The judgment which we have before us says that Mkhize gave evidence that would mean evidence under oath.
MR DEHAL: Sorry, Chairperson. May I just help? It would appear as though this applicant and his father disappeared well before that testimony was adduced and in the subsequent trial of this applicant, it was - I think this is his testimony, Mbambo testified against him and not these two and the question relates to the testimony of these two of Judge ...(indistinct) judgment against the other remaining accused in the absence of this applicant.
CHAIRPERSON: Well, one of these people is Mbambo.
MS THABETHE: Mr Chair, if I may come in at this stage? Maybe just to clarify why I'm asking this question. Why I'm asking this question, it's because the applicant seems to be suggesting that Mahlane you know had malice or had his own intentions of lying to Court about them, so I want to find out about Joseph Mkhize now, whether he was there or not, what motive would Joseph Mkhize have to tell what Mahlane told as well. They say exactly the same version.
CHAIRPERSON: I think it might help if you were to use Mbambo, rather than Mahlane. They are the same person but the witness has been, throughout using the Mbambo.
MS THABETHE: Okay. Mbambo then. Would you answer my ...(intervention)
CHAIRPERSON: Well his answer is, he didn't hear Mkhize's evidence, so he can't comment on it. He can't understand how the Judge could ...
MS THABETHE: My response to that Mr Nyawuza, is that Mahlane and Mkhize told the same version and Mbambo and you know Mbambo's version, isn't it? You know what Mbambo said, isn't it, in Court about you.
MR NYAWUZA: Yes, I do know what Mbambo said in Court, but I don't know what Mkhize said. When I was in Court Mkhize didn't give any evidence. The only evidence that I know is Mbambo's evidence therefore I cannot comment on somebody's evidence which I didn't hear.
MS THABETHE: Can you just listen to what I'm saying and try and understand what I'm saying? I understand the fact that you didn't hear Mkhize's evidence in Court, but I'm saying to you, Mkhize gave the same evidence as that that was given by Mbambo. Now my question to you is why would Mkhize do that? Why do you think Mkhize would do that? What motive would he have to give the same version?
MR PANDAY: Mr Chairman with due respect, my learned friend is calling upon the applicant to speculate on something he has no knowledge of. There could be various reasons as to why, when Mkhize gave his evidence, the judgment turned out the way it did as opposed to the matter when the applicant was apprehended and judged. I think the question is a bit unfair for the applicant to answer as to why Mkhize gives the same version.
CHAIRPERSON: Well isn't the question simply, can you think of any reason why Mkhize should give false evidence against you?
MR PANDAY: I think the applicant has answered the question Sir, he can't say that because he was not there, or Mkhize ...(intervention)
CHAIRPERSON: He doesn't have to be there. He's not being asked to comment on the evidence, he's being asked, as I understand it, to comment on the reason why he should do so.
MR PANDAY: Yes, Mr Chairman.
CHAIRPERSON: Can you suggest any reason why Mkhize would have given false evidence about what happened?
MR NYAWUZA: Now I think I do understand. If you want me to speculate on why they gave similar version, I would simply say the two of them denied any knowledge about the crime, they denied being involved and I would think they chose to do so in order to run away from, or run away from the responsibility of the crime, but this happened to all of us, we planned all of us and we decided that we were going to deny any knowledge, all of us, and it surprised me because they were turned into State witnesses to give evidence against us and they decided to say that this crime was purely a robbery, but what I know, when this was planned that we were going to deny, therefore I think the reason they testify or they gave similar versions is because they were State witnesses and they were trying to eliminate any responsibilities of the crime. At that time it was too late for the rest of us to turn and say we are pleading guilty and we know exactly what happened, that is why they used that method, both of them.
MS THABETHE: Was Joseph Mkhize involved in this incident, because you've indicated that he changed his version because he did not want to be found guilty, if I heard you correctly. Was he involved in this incident?
MR NYAWUZA: Since I've started giving evidence, I did mention Mkhize, Mkhize, I meant Joseph Mkhize, he's the very same Joseph Mkhize who has been involved.
MS THABETHE: Wasn't he outside?
MR NYAWUZA: We were together, we were staying in Nzamane and we were together in the ANC and everything which we did, we were doing it together.
MS THABETHE: So would you say, again I want you to speculate on this because you were not there, on page 80 of the judgment ...
JUDGE POTGIETER: Record?
MS THABETHE: Page 80, line 18, would you say what is said here is correct or not correct where it says Joseph Mkhize got involved because he happened to have the misfortune of overhearing too much in the shebeen about the planning for this robbery, so he was told by Elijah and the others that he would have to come along with them to be implicated in the matter, so that he could not be a spy for the police? What would you say to this? Is this correct? Is this false?
MR NYAWUZA: I don't know anything about what you've just read. What I know is that Mkhize, Mbambo and Ndimande came to the camp. I don't know anything about a shebeen.
MS THABETHE: My last question to you is, when you were inside the shop, did any one of you between you and Ndimande, demand money from either Mr Lembede or Mr Mukungo?
MR NYAWUZA: No one.
MS THABETHE: Thank you Mr Chair.
NO FURTHER QUESTIONS BY MS THABETHE
MS REDDY: Mr Chairperson, could I just interrupt with one important question that I neglected to ask?
CHAIRPERSON: Yes.
MS REDDY: Thank you Mr Chairperson.
FURTHER CROSS-EXAMINATION BY MS REDDY: Mr Nyawuza I draw your attention to page 31 of the bundle and I will actually quote now
"This is not your first encounter with the law. According to you you are no more than 23 years old now and yet before the event in question, you had already been involved in robbery."
Can you just tell us a little bit about the robber that the Judge is actually quoting here? Do you confirm that you had been involved in a robbery previous to the question, to the offence in question.
MR PANDAY: Mr Chairman, what's the relevance of that, if there was, in relation to the incident that the applicant seeks for amnesty.
MS REDDY: Mr Chairperson, may I respond to the question of my learned colleague? Mr Chairperson the motive that we bring out here, is robbery and not a political reason, so had it been that the applicant was previously involved in robbery, it shows reasonable inference that it very well could be in the offence in question here today and in all probability it's a reasonable question.
MR NYAWUZA: I was never involved in robbery before. As from 1991 going backwards, I was never involved in any robbery.
MS REDDY: So you're actually telling to this committee that the Judge was actually incorrect in what he said to the Court in his sentencing?
MR NYAWUZA: I think that's purely a mistake and I think evidence like that can be easily ascertained because I was never involved in any robbery.
MS REDDY: Mr Nyawuza, I put it to you that you are actually lying. No further questions.
MR NYAWUZA: As I'm here before the Committee, I am here to testify and tell the whole truth about what happened and also I want the Lembede family to know the truth. I know that in Court things were said which were not true and today I'm here to tell the truth and I'm certain that I am telling the honest truth before this Committee and it is something that I know and something which I took part in it.
MS REDDY: Okay Mr Nyawuza, Mr Mbambo will actually give evidence to this Court to the extent that you were an habitual criminal and it was known to the Community where you lived.
CHAIRPERSON: He, Mbambo, was an habitual criminal?
MS REDDY: No, Mr Nyawuza.
MR NYAWUZA: I don't know whether I should respond to that.
MS REDDY: Yes, go ahead.
MR NYAWUZA: What I can say is that as you can see I was chosen together with elderly people and the reason I was chosen, it was because of my activities in the community and the organisation, not criminal activities, not at all and I don't know what criminal activities he is talking about and what criminal activities he testified on in Court, that's all I can say.
MS REDDY: Thank you. No further questions.
NO FURTHER QUESTIONS BY MS REDDY
MR PANDAY: No re-examination, Mr Chairman.
NO RE-EXAMINATION BY MR PANDAY
CHAIRPERSON: Dealing with this last point, a number of the cases we have heard lately, we have had pages and pages of the accused's criminal records, in this case there do not seem to be any. I don't know whether they are part of your file, or part of the records available. The matter could be settled beyond dispute if the official record is produced. It's presumably, I can't imagine a Judge inventing a conviction. The Judge was presumably given some document. Perhaps inquiries could be made.
MS THABETHE: Mr Chair, I understand there is a docket in this office, so I'll have a look during lunch time.
CHAIRPERSON: Thank you. That concludes your ..(intervention)
MR PANDAY: That's the evidence of the applicant. Thank you.
WITNESS EXCUSED
MR DEHAL: Sorry Chair. I was wondering whether we should take the lunch adjournment at this stage?
CHAIRPERSON: Well, we had arranged, I don't know if you were told, we were told that arrangements would be made that lunch would be served at 1.30 today.
MR DEHAL: Oh.
CHAIRPERSON: Would you rather not start with ... we've got about twenty minutes then, it should see us through your next applicant in chief at least.
MR DEHAL: I wanted to confer with the next applicant, arising from certain aspects that arose here and unfortunately I'm using an interpreter, so - perhaps we could take the lunch break.
CHAIRPERSON: Well we'll take the luncheon, if we can all try to get back as quickly as possible, please.
MR DEHAL: Thank you.
COMMITTEE ADJOURNS
ON RESUMPTION
JUDGE POTGIETER: Is it second applicant, Elijah Nyawuza?
MR DEHAL: No, it's Ndimande, the third applicant. Thank you.
