CHAIRPERSON: Yes Mr Meyiwa, Good morning. Will you stand please? Are you Francis Dikisi Meyiwa?
MR MEYIWA: That's correct.
FRANCIS DIKISI MEYIWA: (sworn states)
CHAIRPERSON: Ms Mohammed.
MS MOHAMMED: Thank you Mr Chairman.
EXAMINATION BY MS MOHAMMED: Mr Meyiwa, I'm going to show you your application form which forms part of the bundle of documents that is before us today from pages 60 to 69, as your original - sorry, it's a copy of your Zulu application form. Do you confirm that?
CHAIRPERSON: ... (indistinct - mike not on)
MS MOHAMMED: Yes, Mr Chair.
MR MEYIWA: Yes, it is.
MS MOHAMMED: And pages 53 to 59 is the English translation of that application?
MR MEYIWA: Yes.
MS MOHAMMED: And from page 70, pages 70 and 71 is in fact an English translation of a Zulu letter which appears from pages 72 to 74?
MR MEYIWA: Yes.
MS MOHAMMED: Okay. I'm going to take you now to pages 6 to 10 of the additional bundle. This actually reflects an affidavit which was drafted on your instructions when an attorney from our offices called at you in Westville Prison in April. Pages 6 to 10 of the additional bundle.
MR MEYIWA: Yes, it is.
MS MOHAMMED: Now Mr Meyiwa you were seated in Court when the other applicants, the two Mr Nyawuzas and Mr Ndimande gave evidence, isn't that correct?
MR MEYIWA: Which Court are you referring to?
MS MOHAMMED: This Court, yesterday when they gave evidence, you were seated in Court when they were speaking to the Committee.
MR MEYIWA: Yes, I was.
MS MOHAMMED: Okay, now you heard their versions on the incident which occurred and do you confirm the correctness of that version?
MR MEYIWA: Yes, I do.
MS MOHAMMED: Can you just tell the Committee what you have been convicted of?
MR MEYIWA: It is murder and attempted robbery.
MS MOHAMMED: And how many years sentence are you serving at Westville Prison?
MR MEYIWA: 15 years imprisonment.
MS MOHAMMED: Thank you Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY MS MOHAMMED
MR PANDAY: No questions Mr Chairman, sorry.
NO QUESTIONS BY MR PANDAY
MS REDDY: Thank you Mr Chairperson.
CROSS-EXAMINATION BY MS REDDY: Can you tell me which political organisation you belonged to in 1991?
MR MEYIWA: The SACP.
MS REDDY: Was that a branch of the ANC?
MR MEYIWA: Yes.
MS REDDY: What position ...(intervention)
ADV SANDI: Did he say SACP, a branch of the ANC?
MS REDDY: Member, I actually asked him whether it was a branch of the ANC.
MR MEYIWA: It was an organisation affiliated to the ANC.
MS REDDY: What position you held at that organisation?
MR MEYIWA: I was in the Peace Committee in my area.
MS REDDY: Do you have a membership card to prove your affiliation?
MR MEYIWA: Yes, I do.
MS REDDY: Where is your membership card?
MR MEYIWA: I have it with me.
MR PANDAY: Could the Committee have sight of that?
CHAIRPERSON: This was issued in May 1993.
MR MEYIWA: I last renewed my membership in 1993.
MS REDDY: How long were you a member of that organisation?
MR MEYIWA: I joined it in 1989.
MS REDDY: Your membership card actually says or proves that you were a member in 1993. Now to actually convince this Committee that you were a member in 1991, did you ask anybody to actually come here today to corroborate your statement?
MR MEYIWA: No, I did not.
MS REDDY: Can you provide me with the reason?
MR MEYIWA: I attempted to contact my family, but I could not do so because from two weeks ago we were being transferred in prison so that my family is not aware that I am still at Westville Prison.
MS REDDY: When did you get notice that this application was going to be held here today?
MR MEYIWA: I heard last Friday.
MS REDDY: Who gave you instructions to go and kill the deceased in question?
MR MEYIWA: It was Mr Mbambo and Mr Mthambo.
MS REDDY: What did Mr Mbambo relate to you and your comrades?
MR MEYIWA: Mbambo informed us that there was a person in the Ngonyameni area who supported the IFP there as well as the IFP S Unit 17.
MS REDDY: Did you do any intelligence investigation to find out what Mbambo has stated to you and your comrades, was correct?
MR MEYIWA: Firstly we trusted Mbambo in the organisation as a loyal member. Secondly, it was not permissible that when a senior person gives you instruction that you go and do your own investigations because we assumed that the leaders had done that and because our activities were underground in nature, conducting that investigation could perhaps have led to the police knowing about it, so it was against the policies of the organisation for us to do that.
MS REDDY: What you're actually trying to tell me is notwithstanding the fact that your senior could be wrong, you would go ahead and kill somebody?
MR MEYIWA: He was a person who was trusted within the organisation and for the fact that the organisation was in contact, communicated with other branches, we assumed that that information was ...(indistinct)
MS REDDY: Did you make any endeavours to call Mr Mthambo to give evidence on your behalf here today?
MR MEYIWA: i was unable to do that for the reason that many people have been displaced from that area due to the violence.
ADV SANDI: Yes, but just explain that. Have you been in touch with Mr Mthambo at all?
MR MEYIWA: I last saw him before my arrest.
ADV SANDI: Thank you.
CHAIRPERSON: Has the Investigative Unit been in touch with Mr Mthambo? He is clearly an implicated person.
MS THABETHE: No, Mr Chair because Mr Mthambo is deceased.
CHAIRPERSON: He's deceased?
MS THABETHE: Yes.
MR MEYIWA: I did not know about that.
MS REDDY: After Mr Lembede was killed, did his killing actually stop the violence between the violence between the IFP and the ANC?
MR MEYIWA: It did not stop but it did subside, decreased a bit.
MS REDDY: Can you tell me why you and your companions chose to attack Mr Lembede on a Friday?
MR MEYIWA: There were people who were known to be trusted to be able to protect and carry out duties in the organisation and those people were ourselves.
MS REDDY: Could you actually repeat the answer to the question? I just lost you somewhere.
MR MEYIWA: There were people who were trusted to defend whatever happened in our area, or who were able to carry out assigned to them by the organisation and those were people like myself.
CHAIRPERSON: The question was, who decided and how did you decide to do it on a Friday?
MR MEYIWA: It was for the reason that the person who was going to show us the area of Ngonyameni worked until late and on a Friday he got off work a bit early.
MS REDDY: Why did you all actually choose to attack Mr Lembede in his shop?
MR MEYIWA: In fact Mr Lembede could have been attacked anywhere but his home might have been safer for him because that is where the weapons were stored, but it was unlikely that he was going to keep the weapons inside the shop.
MS REDDY: Mr Mbambo's version is that you and the comrades actually planned the robbery. He says it was not a political reason that you all went to kill Mr Lembede but it was because you all wanted to rob the store of money. What would you respond to that statement?
MR MEYIWA: What he is saying is not true. Actually what he states there is the same thing he stated in Court that he used to protect himself in Court and which enabled him to be acquitted.
ADV SANDI: Just to get more clarity on that. Should I understand that to say that he is once again trying to protect himself before this Committee?
MR MEYIWA: That's correct.
ADV SANDI: But my understanding is that he was given a Section 204 indemnity after he had testified in Court, isn't that the position?
MS REDDY: That is the position.
ADV SANDI: Are you aware that Mr Mbambo is facing no prospect of criminal prosecution in relation to this matter?
MR MEYIWA: I do not have that knowledge.
CHAIRPERSON: Was he given it or was he found not guilty.
MR PANDAY: Mr Chairman, I'm a bit confused. According to judgment of Didcott, he was constantly referred to as Accused number 1 and raised the defence of duress.
CHAIRPERSON: Yes.
MR PANDAY: And later it was upheld for him to satisfy the Defence ...(indistinct). I am given to understand that he was acquitted as a result of duress and thereafter he was used as a witness, because if one has to read Judge Didcott’s judgment he's consistently referred to as accused 1, now he could have not been a Section 204 witness and then consistent - because the indictment includes him. If one looks at page 67 of the original bundle, he's included in the matter.
ADV SANDI: Is that the person referred to as Mahlane?
MR PANDAY: Yes, that's Mr Mbambo.
CHAIRPERSON: The position is he cannot be charged with that murder again.
MR PANDAY: He's been acquitted in this matter.
CHAIRPERSON: But he could be charged with perjury.
MR PANDAY: It's a possibility.
MS REDDY: After the killing of Mr Lembede, did you discover that he was really not affiliated with any political organisation and he was not supplying IFP with weapons? Did that knowledge come to you after the killing of Mr Lembede?
MR PANDAY: Sorry, Mr Lembede, I think that the question is a justified question but I'm not too sure if my learned friend is trying to put to the witness that Mr Lembede was not an IFP supporter or whether it was wrong information that he was supplying weapons. If my learned friend could justify that question to the witness or the applicant.
MS REDDY: Alright. Did you actually learn later on that Mr Lembede, the deceased in the matter, was not a member of the IFP or was not supporting the IFP?
MR MEYIWA: I did not learn of anything later. The only knowledge I had about him was that he was supporting the IFP, not that he was a member.
MS REDDY: No further questions.
NO FURTHER QUESTIONS BY MS REDDY
CROSS-EXAMINATION BY MS THABETHE: Mr Meyiwa, just to correct a few things on your statement. On page 6 of the bundle, the first bundle, sorry Additional Bundle, paragraph 2, you say
"In 1989 I became a member of the African National Congress."
Should that read the South African Communist Party, based on the evidence you gave today?
MR MEYIWA: That's correct.
MS THABETHE: Paragraph 6, you say
"Upon our arrival..."
No paragraph 7, sorry, you say:
"Myself and Mr Mkhize stood outside the shop as lookouts. Ernest, Mr Ndimande and Bobs went inside."
I'm not sure whether I'm reading this correctly. Is Ernest Mr Ndimande? Is it the same person?
MR MEYIWA: No, Ernest is Mbambo.
MS THABETHE: So you're saying three people went inside the shop the second time?
MR MEYIWA: No, when they entered for the second time, it was just two of them.
MS THABETHE: Okay maybe let me start at paragraph 6. You say
"Upon our arrival, the five of us, myself, Mr Ndimande, Bobs, Ernest and Mr Mkhize went to the shop."
That was the first time, isn't it?
MR MEYIWA: Yes.
MS THABETHE: Right. Now you say
"Myself and Mkhize stood outside the shop as lookouts. Ernest, Mr Ndimande and Bobs went inside the shop."
Is this the second time?
MR MEYIWA: It's the first instance when Bobs and Ndimande and Mbambo went inside. I and Mkhize did not enter the shop.
MS THABETHE: So is the statement that upon your arrival, you went to the shop, that is the five of you, is that statement incorrect at paragraph 6?
MR MEYIWA: The five of us alighted from the vehicle. As we approached the shop we divided ourselves into two. The three of them went ahead and proceeded into the shop and myself and Mkhize remained behind.
CHAIRPERSON: So the three of them went into the shop, that's Mr Mbambo, Bobs and Ndimande.
MR MEYIWA: That's correct.
MS THABETHE: And then a few minutes thereafter you heard shots being fired?
MR MEYIWA: Mbambo, Bobs and Ndimande went outside. At that time Mbambo went to the vehicle. Bobs and Ndimande then returned into the shop.
MS THABETHE: Thank you Mr Chair ...(indistinct - mike not on)
NO FURTHER QUESTIONS BY MS THABETHE
JUDGE POTGIETER: But where is that in your statement that you've told us now?
MR MEYIWA: But that is how it happened.
JUDGE POTGIETER: No, no, I'm not talking about how it happened, I'm talking about your statement. We're talking about your statement here, where's it in your statement?
MR MEYIWA: I don't know, but I think that's what I related. As I just mentioned that the five of us went out of the vehicle and three of them went into the shop and they went out and Mr Mbambo went to the vehicle, the other two then returned into the shop.
JUDGE POTGIETER: Well there's no reference to that in your statement. According to your statement five got out of the car, the driver stayed behind, the five of you went to the shop, you and Mkhize stood outside as lookouts, the other three went inside and after a while there was a shot, shots were fired and then you saw them coming out.
CHAIRPERSON: No, that is not correct. He saw two of them coming out.
JUDGE POTGIETER: Ja, you saw two of them coming out.
CHAIRPERSON: Bobs and Ndimande.
JUDGE POTGIETER: Yes.
CHAIRPERSON: Which agrees with the fact that Mbambo had come out before.
JUDGE POTGIETER: Yes. Now can I just get back to my question? Where is this, these details that you've referred to now, where's it in your statement?
MR MEYIWA: I did relate this. It perhaps is the mistake of the person who took the statement because the shots were fired once they went into the shop the second time around and Mbambo was no longer there.
JUDGE POTGIETER: So your statement is wrong?
MR MEYIWA: I think the mistake was made when reference was not made to what I've just stated.
JUDGE POTGIETER: Is this a statement that your lawyers took, or who took the statement from you?
MR MEYIWA: It was my attorney.
JUDGE POTGIETER: Yes. Thank you.
ADV SANDI: Just one question that has just come to my mind. Do you know if a report was given to Mr Mthambo after the killing of Mr Lembede?
MR MEYIWA: Yes.
ADV SANDI: Where and when was that?
MR MEYIWA: It was on the day that Mr Lembede was killed, the Friday.
ADV SANDI: Did you go to his house to give him this report?
MR MEYIWA: Yes.
ADV SANDI: Who was giving the report?
MR MEYIWA: It was the people who went inside Mr Lembede's shop to shoot him.
CROSS-EXAMINATION BY MR PANDAY: Sorry Mr Chairman, if I may just ask the ...
Mr Meyiwa, you presented before this Committee your SACP card, right? That is correct?
MR MEYIWA: Yes.
MR PANDAY: Now what I'm just curious to know is that on the back of the card it states that this card was issued in May 93, it has your name on it, it has an identity number on it, the branch you're a member of and the region. That is your signature that appears at the back of the card, that's correct?
MR MEYIWA: That's correct.
MR PANDAY: Now at the bottom of your signature, we have 91, 92, 93 and you've got 93 ticked, is this card supposed to be renewed at any stage?
MR MEYIWA: I was renewing it in 1993 because ...(intervention)
CHAIRPERSON: When you say they've got it at the bottom of this card, they've got 91, 92, 93, that is printed on the card. The card appears to be printed over - to cover a three year period.
MR PANDAY: Yes, that is correct. Now what I'd like to know Mr Meyiwa, you mentioned that in 1989 you joined the organisation. What I want to know is that, how long does a card remain valid for? For how many years does this card remain valid?
MR MEYIWA: It is renewed annually.
MR PANDAY: Now from 89 to 92, did you have a card?
MR MEYIWA: No, I did not have it then, because I was in the holding cells, I was in prison for this offence.
MR PANDAY: No, but in 89 you were not in prison. Did you have a card in 89?
MR MEYIWA: Yes, I did.
MR PANDAY: And in 1990 you had a card?
MR MEYIWA: That's correct.
MR PANDAY: In 91?
MR MEYIWA: No.
MR PANDAY: Is that the year you were arrested?
MR MEYIWA: That's correct.
MR PANDAY: Just one more point to clarify. In paragraph 7 of the affidavit your attorneys took down, you mentioned that
"After the shots were fired, Mr Ndimande and Bobs came out of the shop and we all ran to the car."
Is that correct?
MR MEYIWA: That's correct.
MR PANDAY: Is it also correct that in that affidavit, it only fails to say what happened to Mr Mbambo before the shots were fired.
MR MEYIWA: Please repeat that question.
MR PANDAY: In that paragraph where you describe where the shots were fired and you all ran to the car, is it correct that the only thing left out is what happened to Mr Mbambo before the shots were fired?
MR MEYIWA: Yes, Mr Mbambo just went on to identify the deceased and he went back to the car.
MR PANDAY: And the only thing that fails to appear in paragraph 7 is that he went back to the car?
MR MEYIWA: That's correct.
MR PANDAY: Thank you.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: When did you write the letter that we've got a copy of? The Zulu version as at page 72?
MR MEYIWA: I wrote it in 1996 although I cannot remember the date.
CHAIRPERSON: Because in that letter, you refer to Mbambo whom you then called Sipho Mahlane, came back and stayed in the car with Elijah Nyawuza.
MR MEYIWA: Yes.
CHAIRPERSON: That's after he had pointed out the man, to show them the person. That is after he went to the shop to show them the person.
MR MEYIWA: That's correct.
CHAIRPERSON: Thank you.
MS MOHAMMED: Thank you Mr Chairman. I have no re-examination. That is the applicant's case.
NO RE-EXAMINATION BY MS MOHAMMED
CHAIRPERSON: ...(indistinct - mike not on)
MS MOHAMMED: Yes.
CHAIRPERSON: Okay, thank you.
WITNESS EXCUSED
MR PANDAY: The victim's case hereafter.
MS REDDY: Mr Chairperson, I now call Marcus Lembede, the son of the deceased.
JUDGE POTGIETER: What is the surname?
MS REDDY: Marcus Lembede.
JUDGE POTGIETER: Marcus Lembede.
MARCUS LEMBEDE: (sworn states)
JUDGE POTGIETER: Ms Reddy.
MS REDDY: Thank you.
EXAMINATION BY MS REDDY: Mr Lembede do you confirm that you're the son of the deceased?
MR LEMBEDE: Yes I do.
MS REDDY: Do you also confirm that you shared a close relationship with the deceased?
MR LEMBEDE: That's correct.
MS REDDY: Did you and your father, the deceased in the matter, belong to any political organisation?
MR LEMBEDE: At that time political organisations were not important to us. It was not something that concerned us at the time because my father was a business man.
MS REDDY: So you're emphatically stating to us that your father did not belong to any political organisation?
MR LEMBEDE: Yes, it was something that he was not concerned with.
MS REDDY: Did you and your father share the same house or abode?
MR LEMBEDE: Yes, we did at BB Section.
MS REDDY: What kind of a relationship did the deceased share with the community where he lived and where the shop was located?
MR LEMBEDE: He had good relations with the community and we did not know him to have any enemies.
MS REDDY: Would it be correct if I were to say to you that you knew more or less the involvements of your father? In other words, what I'm trying to ask you is if your father had to go for meetings, or were to supply weapons to IFP members, would you be able to, or rather would you know of that?
MR LEMBEDE: Yes, I may have known about that, but that didn't happen.
CHAIRPERSON: What were you doing at the time?
MR LEMBEDE: At that time, it was during the holidays and I at the time, I was a teach at Shomaela School.
MS REDDY: Prior to the killing of the deceased, did you know any of the applicants that appeared here today?
MR LEMBEDE: No, I did not know any of them.
MS REDDY: Would you be in a position to tell us whether the deceased knew the applicants?
MR LEMBEDE: He did not know them.
MS REDDY: I just need a little bit of direction in the question I'm going to ask you now. What kind of a shop did your father run?
MR LEMBEDE: It was a general dealership.
MS REDDY: Would you be able to provide me with an answer if I asked you whether he made a substantial amount of money in the shop?
MR LEMBEDE: I would not be in a position to respond, but I do not think he made a substantial amount, it could have been R400/R500.
ADV SANDI: Just explain that. R400/R500, is that per day, per week or what?
MR LEMBEDE: Perhaps per day. I'm not certain.
JUDGE POTGIETER: Was Friday a busy day in the shop?
MR LEMBEDE: It is normal that Fridays will be a little busier than the other days.
JUDGE POTGIETER: In your- from your experience would the income on a Friday be relatively more or relatively less than the income during the week, the rest of the week?
MR LEMBEDE: It may be slightly more than on other days.
JUDGE POTGIETER: Thank you. Ms Reddy.
MS REDDY: In the area that the shop was situated, would you be able to tell me which political group was strong, or in other words had a strong leadership in the area the shop was situated?
MR LEMBEDE: There was no political organisation that existed in that area, people went about their ordinary activities, there was no organisation that was active in that area.
MS REDDY: Was there no conflict or killing between ANC members and IFP members in that particular area?
MR LEMBEDE: There was no violence ever.
MS REDDY: In your opinion, what do you think was the motive of the killing of your father?
MR LEMBEDE: I do not know the reason. I do not know.
MS REDDY: Was this shop previously robbed? I'm talking about the occasion prior to the killing of your father. Were there any robberies that took place prior to that date?
MR LEMBEDE: It had never been robbed before. I do not remember any time when it was robbed.
MS REDDY: How would you feel if the Committee actually grants amnesty to the applicants?
MR LEMBEDE: I would not be pleased.
MS REDDY: Do you wish to state anything else to this Committee?
MR LEMBEDE: What I would like to state is I am still confused as to what motivated these people to carry out this act, particularly the two persons Meyiwa and Ndimande. I think they are the persons who know fully well why they killed my father.
MS REDDY: No further questions.
NO FURTHER QUESTIONS BY MS REDDY
MR PANDAY: Thank you Mr Chairman.
CROSS-EXAMINATION BY MR PANDAY: Mr Lembede, you mentioned that you were a teacher and you have holidays during the period your father was killed. The school that you taught at, is it in the area or away from the area.
MR LEMBEDE: I am staying at BB Section and - or rather the shop was at BB Section and I'm staying in Q Section, but it is one township, Umlazi.
MR PANDAY: And the school that you taught in, is that in another township or the same township?
MR LEMBEDE: ; Same township, Umlazi Township.
MR PANDAY: Now the Ngonyameni area, that is also part of the Umlazi Township, is that correct?
MR LEMBEDE: It is outside Umlazi.
MR PANDAY: Now your father's shop, is that in the Ngonyameni area?
MR LEMBEDE: The one shop in which he was killed is in Ngonyameni which is a rural area closer to Umlazi.
MR PANDAY: Now Mr Lembede, would you agree with me that during that period 91/90, there was conflict that existed between the ANC and the IFP throughout the country?
MR LEMBEDE: I will talk about Ngonyameni area and I will say there was no violence. I will not be able to comment on other areas.
MR PANDAY: Let me rephrase the question. Mr Lembede, isn't it correct that in the Ngonyameni area there were only IFP supporters there?
MR LEMBEDE: I don't know. I don't know anything about that.
MR PANDAY: So if the applicant's version is that there were only IFP supporters there, you won't be able to dispute it, is that correct?
MR LEMBEDE: If you're talking about supporters of the IFP, what are you referring to?
MR PANDAY: The applicants have stated that the Ngonyameni area was an IFP stronghold. You won't be able to dispute that.
MR LEMBEDE: ; Who was their leader because I don't even know any leader of the IFP. I don't even know any meeting which was held by the IFP.
MR PANDAY: Now, let me ...(intervention)
CHAIRPERSON: Would you have known about meetings held in the rural area where you did not live?
MR LEMBEDE: No, I don't know and the reason being I don't even attend such meetings.
MR PANDAY: Okay. Now, Mr Lembede, I'm going to put - or let me put it rather, if someone was a threat to you and a threat to your family and you did not, or you could not go to anyone for assistance, would you have attended to the problem yourself?
MR LEMBEDE: I don't quite follow your question.
MR PANDAY: Mr Lembede, if someone was threatening to kill your family and threatening to kill you and you could not go to anyone for help, would you then attend to the problem yourself?
MS REDDY: Objection. Mr Chairperson, could my learned colleague be more specific when he says "attend to the problem", because attend could mean various things to different people?
JUDGE POTGIETER: Yes, that's also highly speculative, you want him to speculate.
MR PANDAY: No Mr Chairman, I'm actually going to lead up tot he question that I'm going to put to the witness.
JUDGE POTGIETER: Yes, but you want him to speculate. Where does it take us to? What assistance do we get in deciding the amnesty application?
MR PANDAY: Okay, I'll put it directly Mr Chairman. Mr Lembede you are before this Committee and you say you actually don't know the reason why your father was killed. Now all of the applicants have testified that the reason he was killed is because they received information that he was supplying weapons to the IFP and it is because of this he was considered as a threat to the ANC supporters.
MR LEMBEDE: That is s a mistake. We are one family with Lembede who was the president of the ANC in 1944. I don't know how my father could have joined IFP. That is a mistake. We've been a pro ANC family as from 1944.
MR PANDAY: Mr Lembede did you stop being a pro ANC family?
MR LEMBEDE: The person who was a pro ANC was my uncle, my father's brother, my father's elder brother, so we followed ANC because of that but we were never members of the IFP and my father was busy with his business, not politics.
MR PANDAY: Yes, now my question to you is that, did you all remain following the ANC?
MR LEMBEDE: We were not proactive, we were never running in the street, but we continued to love ANC.
MR PANDAY: ; Now Mr Lembede, if the applicant's received this information about the weapons being supplied to the IFP by your father, do you not think the actions would have been then justified?
MR LEMBEDE: What information?
MR PANDAY: About your father supplying weapons to the IFP. We're not saying that he was.
MR LEMBEDE: And what is the question there?
MR PANDAY: The question was that if someone told him this is what he was doing, then would they be justified?
MR LEMBEDE: You question is confusing me, I don't understand what you're saying, I don't quite follow.
MR PANDAY: Mr Lembede ...(intervention)
ADV SANDI: You're now asking him for his opinion?
MR PANDAY: Yes, in that circumstance. Mr Lembede the applicants say that the only reason they killed your father is because information was received he was supplying weapons to the IFP.
CHAIRPERSON: Information was received from one person only.
MR PANDAY: Yes, that's true, Mr Chairman.
MR LEMBEDE: I will ask one question then, why this information was received from one individual, why didn't they ascertain this by finding the facts from other people as well?
MR PANDAY: Mr Lembede the individual that brought the information to them was initially from that area and he trusted his decision or the information.
MR LEMBEDE: In my knowledge I know for a fact that my father couldn't have supplied weapons to the IFP because he didn't even have enough money, he wouldn't even bother himself in supplying weapons. I don't know how else I should answer your questions.
MR PANDAY: Thank you Mr Lembede.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: I think perhaps it should be put somewhat differently. As I recollect, supply may have included selling weapons to the IFP in which case he would have made money out of it, could that have happened.
MS REDDY: Mr Chairperson, could I just object? There was no mention of selling weapons, it was to my knowledge, it was just ...(intervention)
MR LEMBEDE: Such things couldn't have happened, he couldn't have sold weapons. He wouldn't have bothered.
JUDGE POTGIETER: Were there any weapons in your home?
MR LEMBEDE: My father had one weapon which was licensed, it was a legal weapon because ...(intervention)
JUDGE POTGIETER: Sorry, Ms Interpreter, carry on, sorry.
MR LEMBEDE: Because it is licensed and it's written in his ID. He had two in fact, one shotgun and a 9mm.
JUDGE POTGIETER: Licensed firearms?
MR LEMBEDE: Yes.
JUDGE POTGIETER: You have always been aware of those two firearms in the house?
MR LEMBEDE: Yes.
JUDGE POTGIETER: If there were a supply of firearms, of a variety of firearms as it was put here in response to one of the questions, in the house or that your father supplied the IFP, would that have escaped your attention or what?
MR LEMBEDE: It wouldn't have happened. I would have seen them because we were staying in one house.
JUDGE POTGIETER: Yes, thank you.
ADV SANDI: Did your father confide a lot to you?
MR LEMBEDE: Yes, he trusted me.
ADV SANDI: I've got a reason to ask this question. Were you his eldest son? ...(ethnic)
MR LEMBEDE: Yes.
ADV SANDI: Do you know if socially he had any friends?
MR LEMBEDE: No, he didn't have a best friend. His best friend was his shop and to go to work.
ADV SANDI: Yes, but if he was not at the shop, what would he be doing normally? Would he go out and spend time with some people, or would some people in the community come in to visit him?
MR LEMBEDE: He spent most of his time in his shop. If he wasn't at school, he was in his business. He was not a person who will go and visit other people.
ADV SANDI: This place where you say ...(intervention)
CHAIRPERSON: Sorry, before you ... What did he do at school?
MR LEMBEDE: He was a principal in Sikwama School.
CHAIRPERSON: Sikwama. He was a school principal, Sikwama Junior School?
MR LEMBEDE: Yes.
CHAIRPERSON: Carry on.
ADV SANDI: Thank you Chair. Maybe I should follow that. This place where he was a school principal, were there any political divisions amongst members of the staff?
MR LEMBEDE: I wouldn't know.
ADV SANDI: Now this place where you say you used to teach, is that - it was Shamaeni School, is that where you stayed during the week and come back over the weekend? What exactly was happening?
MR LEMBEDE: The rural area where we resided was in Umbumbulu, not Ngonyameni. Ngonyameni is the shop and there was a shop which was destroyed in Umbumbulu and he was renovating it.
CHAIRPERSON: Was the school in Ngonyameni?
MR LEMBEDE: There was a shop in Ngonyameni.
CHAIRPERSON: Was the school there, the Sikwama Junior School?
MR LEMBEDE: Yes, in Ngonyameni.
CHAIRPERSON: Are you also Lindelani Lembede?
MR LEMBEDE: Yes.
MS MOHAMMED: Thank you Mr Chairman, in light of the various issues that have been raised already up until this stage, there's no need for me to further cross-examine. Thank you.
NO QUESTIONS BY MS MOHAMMED
MS THABETHE: Mr Chair, I don't know how to deal with this but Mr Panday has raised an issue here that the Ngongameni area was an IFP area and unfortunately there was no evidence led earlier on to that effect and the relevance of that is that it poses a question then as to if there were being arms supplied in an IFP area, who was the IFP fighting with, in the light of everything that has been said, so maybe I would like him to clarify that on the instructions given.
JUDGE POTGIETER: Yes, I'm also a bit confused about the allegation that it was an IFP stronghold.
MS REDDY: Yes and no evidence was led to that aspect.
MR PANDAY: Mr Chairman, it was always contended that the evidence that the deceased was supplying weapons to the IFP, not necessarily in the Ngonyameni area, and if my memory serves me correct, the first applicant, Mr Nkosinati Nyawuza, when he explained as to how Mr Mbambo had left his area where he had originally come from, he was - I think it was at that stage when the Ngonyameni area was an IFP area and where the applicants resided, that was an ANC area, as far as I understand. I may be incorrect, but ...
MS THABETHE: The impression I got all along is that the evidence of the applicants is that they were approached by Mahlane, who stayed at Ngonyameni area, who knew of Mr Lembede, who had evidence or whatever, information that Mr Lembede was supplying arms to the IFP in the area and the IFP was attacking people in the area. All of this was happening at Ngonyameni, hence Mr Mahlane knew everything about this.
MR PANDAY: We stand to be corrected. Let me just confirm that with ...
MS THABETHE: I can quote the relevant pages as well.
MS REDDY: Mr Chairperson, I have it in written notes here that when Nyawuza was led, he said
"Mthambo went further to say that it would be a problem and it would affect them, if guns would reach them."
Those were the exact words as written down by me, so that could be some clarification on that point.
MR PANDAY: Well, as I say, I stand to be corrected, that's very possible. I think the issue was that the reason for the attack was the supply of weapons to the IFP.
MS THABETHE: At Ngonyameni.
MR PANDAY: Is that the ... Okay I may stand to be corrected on that issue.
MS THABETHE: No Mr Chair, I don't have any cross-examination. That's the only point I wanted to raise in connection with this.
JUDGE POTGIETER: Oh you don't have any questions for Mr Lembede?
MS THABETHE: No, I don't.
JUDGE POTGIETER: Alright. Well then I think ..(intervention)
MR PANDAY: Ms Fatima can be of some assistance.
MS MOHAMMED: Mr Chairman, my notes reflect that when the first applicant was led, Mr Panday actually asked him
"What did Mr Mthambo tell you?"
and he said:
"After Mbambo informed Mthambo in our presence of problems with the person helping the IFP, even Mbambo had to flee the area because of the situation. Mr Mthambo came to the decision that this person should be eliminated immediately because the weapons used in the Ngonyameni area will be filtered to Unit 17, who we were fighting. He then selected ..."
and he just went on thereafter. Thank you.
JUDGE POTGIETER: Yes, that is roughly how I recall it as well. Yes. But perhaps you should carry on, it's your witness.
MS REDDY: No re-examination.
NO RE-EXAMINATION BY MS REDDY
JUDGE POTGIETER: Just very briefly, Mr Lembede, was your father well-known in this area where he was teaching and doing business?
MR LEMBEDE: Yes, well-known.
JUDGE POTGIETER: And the family link to Mr Lembede, Anton Lembede the ANC leader, was that also something that was well-known?
MR LEMBEDE: No, it was not well-known.
JUDGE POTGIETER: The position of your uncle, I think you said your father's elder brother and his more active support or involvement in the ANC, was that also known in that area?
MR LEMBEDE: No, it was not well-known because he didn't participate more in KwaZulu Natal, he participated more in Gauteng.
JUDGE POTGIETER: Are you saying that if inquiries were made in the area, other people would have been able to explain the situation of your father as a well-known person in that area?
MR LEMBEDE: Yes, well-known.
JUDGE POTGIETER: If somebody were to mention your father's name, people would have said yes, he's the principal of the school here and he's got a shop down there and they can explain who he is, would that be a proper understanding of the situation?
MR LEMBEDE: Yes, precisely.
JUDGE POTGIETER: Yes, thank you.
WITNESS EXCUSED
CHAIRPERSON: Thank you. We will now take the short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
JUDGE POTGIETER: Do you want him sworn in Ms Reddy?
MS REDDY: Yes.
SIBUSISO LEMBEDE: (sworn states)
EXAMINATION BY MS REDDY: Do you confirm that you're the son of the deceased?
MR LEMBEDE: Yes.
CHAIRPERSON: Is this Sibonelo?
MR LEMBEDE: Sibusiso.
CHAIRPERSON: Sibusiso?
MR LEMBEDE: Yes.
CHAIRPERSON: Have you another brother Sibonelo?
MR LEMBEDE: Yes.
MS REDDY: Did you share a very close relationship with the deceased?
MR LEMBEDE: yes.
MS REDDY: Can you tell us whether your father was well-respected and like in the community he lived and in the area where the shop was situated?
MR LEMBEDE: Yes, he was.
MS REDDY: There is something that's very important you wanted to share with the Committee. Could you just proceed with that?
MR LEMBEDE: I would like to state that my father was very old and as such, if he is driving a vehicle, he would not be alone. As a diabetic he could not drive because his legs were by that time not functioning properly. If he had to go perhaps to the shop, he would be driven there and when he was going to school, he would also be driven. He could still walk but he had a problem with his legs. As such, he would always be travelling with one of his sons wherever he went in his vehicle. That is what I wanted to state before the Committee.
MS REDDY: How old was your father in the year 1991?
MR LEMBEDE: He was born in 1929. I think he was between 60 and 70 at the time.
MS REDDY: So in summary form what you need to tell this Committee is that you were fully aware of the whereabouts of your father at all times because he was not physically able to go anywhere without assistance by you or the remaining brothers in the Lembede family?
MR LEMBEDE: That's correct. We always knew his whereabouts.
MS REDDY: So you have no knowledge whatsoever of the allegation that was put before this Committee that your father supplied weapons to the IFP?
MR LEMBEDE: That is not true. It has never been true.
MS REDDY: No further questions.
NO FURTHER QUESTIONS BY MS REDDY
CROSS-EXAMINATION BY MR PANDAY: Mr Lembede, I know and understand from your family perspective, your father had done nothing wrong in terms of supporting the IFP and so forth. Now my question to you is going to be actually very simple and straightforward. If the applicants were led to believe that this was the case, would they have then not been justified in the way they acted? Remember I'm not saying that your father's now doing it, according to your evidence, you've stated before this Committee that you'll have no such knowledge. My question is simple. If the applicants were led to believe that he was supplying weapons to the IFP, would their actions have been then justified in terms of the political context?
MR LEMBEDE: Please repeat your question.
MR PANDAY: Mr Sibusiso, you've mentioned that your father had problems with his legs and that you all always knew what he was doing. I accept that. I even accept when your brother stated earlier on that you all have no knowledge of him dealing with the IFP by selling weapons, that I accept. Now the applicants have testified that this was the information they were given and they acted on this information. Now, given the political situation back then, would they have been justified, if they believed in that information?
MR LEMBEDE: If that is the case, then many people were killed mistakenly. They got the information from one person. I think they should have investigated more and gained information to support that allegation, therefore I do not accept what they said.
MR PANDAY: You only don't accept it because it was not investigated, that's the way I understand your information.
MR LEMBEDE: What I'm stating is that I know my father, I knew what his activities were, I would take him to school and go to the shop. He was always in someone's company.
MR PANDAY: Yes. No I understand that Mr ...(intervention)
CHAIRPERSON: Isn't what he's saying is that if they had investigated, they would not have done it, because they would have found it to be untrue?
MR PANDAY: I accept that, Mr Chairman. Now Mr Lembede, the applicants were also following orders. Don't you think then it would have been the person who gave them the orders, who should have done the investigation?
MR LEMBEDE: That was up to them, but as I've already mentioned, it has never been the case that my father was involved in the IFP, I think they enjoyed shedding other people's blood.
MR PANDAY: Thank you Mr Lembede.
NO FURTHER QUESTIONS BY MR PANDAY
MS MOHAMMED: Mr Chairman, I have no questions.
NO QUESTIONS BY MS MOHAMMED
MS THABETHE: ...(indistinct - speaking simultaneously)
NO QUESTIONS BY MS THABETHE
MS REDDY: No re-examination.
NO RE-EXAMINATION BY MS REDDY
JUDGE POTGIETER: Sorry, Mr Lembede, perhaps you can help us. I'm just talking about the shop that your father was running, the money that was made in the shop, was that banked?
MR LEMBEDE: Yes, it was banked.
JUDGE POTGIETER: And can you help us? How regularly was that done?
MR LEMBEDE: It was done once a week.
JUDGE POTGIETER: And on any particular day of the week?
MR LEMBEDE: It would be a Saturday.
JUDGE POTGIETER: Saturday. I suppose, or perhaps I should ask you, where was the bank situated?
MR LEMBEDE: It was the FNB at Mobeni.
JUDGE POTGIETER: And would you then on a Saturday morning take all the takings and drive off to Mobeni and go and bank the monies that the business made?
MR LEMBEDE: Yes, my father would have counted the money and he would hand it over to us children to take to the bank.
JUDGE POTGIETER: Thank you.
CHAIRPERSON: Where was the money kept in the shop?
MR LEMBEDE: My father had a bag in which he kept his personal belongings as well as possessions from the shop because he did not have a safe, so I think that when he collected the cash in the evenings, he would put it in the bag.
ADV SANDI: Was this the only shop in the area?
MR LEMBEDE: Yes, it was.
MS REDDY: The witness can be excused, no re-examination.
WITNESS EXCUSED
MS MOHAMMED: We now call Edgar Mukungo.
EDGAR ZAMAHUSHLE MUKUNGO: (sworn states)
CHAIRPERSON: Ms Mohammed.
EXAMINATION BY MS REDDY: What relationship did you share with the deceased?
MR MUKUNGO: He was my grandfather.
MS REDDY: Did you work with him at the shop?
MR MUKUNGO: Yes, I would assist him after school.
MS REDDY: On the day in question, were you present in the shop?
MR MUKUNGO: Yes, I was.
MS REDDY: Did you witness the incident in question?
MR MUKUNGO: Yes, I did.
MS REDDY: Can you tell us what occurred on the 21st of June 1991?
MR MUKUNGO: I arrived from school and left my school things at home and went to assist in the shop. In the afternoon after 5, I was preparing to close the front door after which we would then use the back door to serve the customers. As I was still doing that, I saw people approaching the shop from the main gate. I decided to wait for them, that they finish their purchases, thereafter I would close that door. As I was still standing there, my cousin asked me to go fetch the key from inside the shop. As I did that, I was following one of the people who had entered. I took that key and gave it to my cousin and he went to the back room.
CHAIRPERSON: Your cousin's name please.
MR MUKUNGO: Harom Kwela.
CHAIRPERSON: What did he got to the back room for?
MR MUKUNGO: He did not tell me, he just went.
MS REDDY: Can you just proceed with what you were telling us?
MR MUKUNGO: After I had given him the key, I went to stand near the front door and my back was towards the shop and one person was inside the shop. As I stood there, I heard a noise from the back. I thought perhaps it was a crate of Ijuba perhaps falling. I stood there for a few moments and then checked if indeed it was the crate. As I turned back I saw that my grandfather was struggling with a person inside the shop for a gun.
MS REDDY: Can I just interrupt you there? You said there was one person inside the shop. Now can you just tell us who is that one person? Is it one of the applicants?
MR MUKUNGO: Yes.
MS REDDY: Can you tell us specifically which one?
MR MUKUNGO: It was Mr Ndimande.
MS REDDY: And you said your grandfather was struggling with somebody. Who was that somebody?
MR MUKUNGO: It was Mr Ndimande who was inside the shop, he's the person my grandfather was struggling with.
MS REDDY: Alright. Proceed.
MR MUKUNGO: As they were still struggling my grandfather was holding onto Mr Ndimande's wrist and the gun was pointed upwards. They struggled towards the door where I was standing. I decided to go assist my grandfather. When I got there, I just grabbed the gun.
MS REDDY: Sorry, can you just go a little bit slower, we're trying to take down notes.
MR MUKUNGO: I grabbed the gun and we struggled with the person who was holding that gun. As we were doing this, we were nearing the front of the shop. As we were in front of the door, he shouted. He said
"Please come and stab him."
I realised that I was in danger and decided to hold on to the firearm. I twisted the finger that was on the trigger. As I did this, the gun went off and it was pointed towards outside the shop at the time. He released the gun as it went off and it remained with me.
MS REDDY: So, the gun didn't fall from Ndimande's hand, you actually took hold of the gun and that's when he released the gun, is that correct?
MR MUKUNGO: That's correct.
MS REDDY: The significance of that question is that if you remember, Ndimande actually led evidence to the extent that he left the gun on the floor or more specifically the gun fell to the floor, he didn't release the gun because you offered resistance. Alright, you can proceed.
MR PANDAY: Sorry Mr Chair. Is the representative seeking an answer or is merely stating a position?
MS REDDY: It's just a clarification because I remembered very clearly that Ndimande said there was a struggle and he left the gun on the floor and the witness here now says that he offered resistance and therefore Ndimande released the gun.
MR PANDAY: No, I accept that.
JUDGE POTGIETER: Do you want him to respond to that?
MS REDDY: ...(indistinct - mike not on)
JUDGE POTGIETER: You want him to respond.
MS REDDY: ...(indistinct - mike not on)
JUDGE POTGIETER: No, but to what you're saying, your statement.
MS REDDY: Yes.
JUDGE POTGIETER: You want him to respond to that?
MS REDDY: Yes.
JUDGE POTGIETER: Yes, Mister, do you agree that Ndimande let the gun fall to the floor or do you say as you testified that when the gun went off, he released the gun and you kept the gun?
MR MUKUNGO: We struggled for the gun and as I stated, I twisted his finger and the gun went off and he released it and I kept it, it did not fall onto the ground.
JUDGE POTGIETER: Thank you Edgar, you can now proceed.
MR MUKUNGO: After I had the gun with me, I ran from the front towards the back. As I was on my way, I heard gunshots going off. When I arrived at the back door, I turned, looking towards the front. I saw my grandfather falling. He was next to the counter. The person whom I had disarmed called to the others and said
"Come and get the money."
I then pointed the firearm towards him, that is towards the front door and fired. After that they scattered and ran away.
MS REDDY: Did you actually see who actually shot your grandfather? Did you see the person?
MR MUKUNGO: No, as I said, my back was towards the front door because I was running so I did not see the person who fired the shot.
MS REDDY: Did you see any of the applicants outside the shop?
MR MUKUNGO: I cannot specifically say who was there or who wasn't and I was not expecting anything to happen for me to remember.
MS REDDY: Could you just reiterate what you heard Ndimande say?
MR MUKUNGO: Are you referring to the first or the second instance, because the first time he shouted that they should come and stab me and the second time he shouted that they should come and get the money.
MS REDDY: I was actually referring to the second one, but you gave me clarification now. In your idea, why did the applicants fear to take any money or property from the shop?
MR MUKUNGO: In my opinion, it was because I had fired a shot towards them and they were aware that I had a weapon.
MS REDDY: Did you know or see the applicants prior to the day in question?
MR MUKUNGO: No.
MS REDDY: Did you and your grandfather share a close relationship?
MR MUKUNGO: I used to assist him in the shop and we would travel together from the shop to BB Section which was home, so I will say yes, we were.
MS REDDY: According to your knowledge were you aware that your grandfather supplied weapons to the IFP?
MR MUKUNGO: No.
MS REDDY: Can you tell me whether the applicants entered the shop just on one instance, or was it two different occasions?
MR MUKUNGO: As far as I know, they went into the shop once, that was when they were wanting to shoot at my grandfather.
MS REDDY: So according to your recollection it was just one time?
MR MUKUNGO: Yes, as far as I can recall it was just once.
MS REDDY: Do you belong to any political organisation?
MR MUKUNGO: I supported the ANC although I did not have a membership card.
MS REDDY: Do you wish to say anything further to this Committee?
MR MUKUNGO: What I can state is that I am puzzled by what has happened here because when I was at the shop I heard one person calling the others for the money, also people who are active in politics usually refer to one another as Comrades and I did not hear them relating to one another as such.
MS REDDY: Do you know whether there was any conflict with the ANC and IFP in the area where the shop was situated?
MR MUKUNGO: No, there was no conflict.
MS REDDY: Was the shop busy on a Friday usually?
MR MUKUNGO: I would say so because sometimes people would hold special gatherings on Fridays. In most instances most people were home on Fridays so we would be a little busy at the shop.
MS REDDY: So would you confirm that on a Friday there was considerably more cash in the shop in comparison to the rest of the days in the week?
MR MUKUNGO: Yes.
MS REDDY: In your opinion, what was the motive of the killing of your grandfather?
MR MUKUNGO: From what Mr Ndimande said, that is calling on the others to come get the money, it appeared to me that it was robbery that was intended.
ADV SANDI: Where was the money he was referring to?
MR MUKUNGO: It was kept at the till.
MS REDDY: Thank you Mr Edgar Mukungo, no further questions.
NO FURTHER QUESTIONS BY MS REDDY
CHAIRPERSON: Can I - we've heard ...(intervention)
INTERPRETER: The speaker's mike is not on.
CHAIRPERSON: We've heard that your grandfather went to the shop after he left school where he was the headmaster.
MR MUKUNGO: Yes, he would first go to school and thereafter go to the shop, but I think at that time it was during school holidays so he was at the shop, although I was coming from school because I was attending at Technical College.
CHAIRPERSON: You were at the Umlazi Technical College?
MR MUKUNGO: Yes.
CHAIRPERSON: Now who else was working in the shop then?
MR MUKUNGO: It was my cousin, Harom and my aunt Tembisile Lembede as well as another aunt, Philipina and Makifi and Mana.
CHAIRPERSON: Sorry? Aunt Philipina and who else?
MR MUKUNGO: Makifi and Mana.
CHAIRPERSON: And were there customers in the shop?
MR MUKUNGO: When this incident occurred, I think it was quiet. I do not recall customers. There may have been one or two.
CHAIRPERSON: Do customers sometimes drink in the shop?
MR MUKUNGO: No, they were not permitted to drink inside.
CHAIRPERSON: And my last question is, do you remember you made a statement to the police?
MR MUKUNGO: Yes.
CHAIRPERSON: Now in that statement, you first of all talk of some three males who were strangers in Ngonyameni entering the shop and two of them buying "Metholister" and the third one buying Halls. Do you remember that?
MR MUKUNGO: Yes. That is what I had heard from my cousin Harom. I was told that they could not use that because it was something that I had not witnessed.
CHAIRPERSON: And in your statement you also say that your cousin Harom, was suspicious about these males who were coming to enter the shop, went to the outbuilding to fetch the weapon.
MR MUKUNGO: When he went out, he did not inform me what he was going to do. After all of this had happened, after I had fired at these persons and they disappeared, I went towards the back, this is going around the length of the shop, that is where I met Harom carrying the firearm, the firearm I was referring to in the statement.
CHAIRPERSON: What sort of firearm was it?
MR MUKUNGO: It was a shotgun.
CHAIRPERSON: And it was kept at the back, was it?
MR MUKUNGO: Yes, it was kept in the back room.
CHAIRPERSON: Thank you.
MR PANDAY: Thank you Mr Chairman.
CROSS-EXAMINATION BY MR PANDAY: Edgar, just tell me, who's shotgun was it that Harom went to fetch from the back room?
MR MUKUNGO: It was my grandfather's.
MR PANDAY: And were there any other weapons kept there, hand gun?
MR MUKUNGO: No.
MR PANDAY: Did your grandfather own any other guns?
MR MUKUNGO: Yes, he had a shotgun and a 9mm.
MR PANDAY: Do you know where the 9mm was?
MR MUKUNGO: It was kept in his briefcase.
MR PANDAY: And was the briefcase with him or in the outbuilding?
MR MUKUNGO: It was inside the shop.
MR PANDAY: Now, you mentioned that in the shop there were two aunties, Harom, Makifi, Mana and yourself, is that correct?
MR MUKUNGO: That's correct.
MR PANDAY: And including our grandfather that will make it 7?
MR MUKUNGO: Yes, those were members of staff that were employed by my grandfather, but when the incident occurred, some of them had left because they had to get transport going home.
MR PANDAY: Okay I just wanted to - now on that day in question when the incident occurred, who was in the shop exactly, not just staff, although - who was there?
MR MUKUNGO: Makifi was still around as well as Harom, then myself and my grandfather.
MR PANDAY: So there were 5 of you in the shop then? Makifi, Makifi was in the shop.
MR MUKUNGO: Yes.
MR PANDAY: You were in the shop, Harom was in the shop, your grandfather was in the shop. Is that all?
MR MUKUNGO: That's four.
MR PANDAY: Ja, four, sorry. Now, when did you first learn that - let me rephrase that question. When your attorney asked you a question, who was struggling with your grandfather, you mentioned the name Ndimande, is that correct?
MR MUKUNGO: Yes.
MR PANDAY: Now when did you first learn that Ndimande was the one that struggled with your grandfather?
MR MUKUNGO: When I went to take the key, he is the person who was in front of me. I gave the key to Harom and went back to where they were standing before. I only turned when I heard a noise from the back and as I did so, I saw my grandfather struggling with another man, the same person who I had been following.
MR PANDAY: Now when your grandfather was struggling with this man, did you take notice where the other people were in the shop? You mentioned three people came in, were you able to take notice where they were?
MS THABETHE: He only said one.
MS REDDY: He didn't say three, he said one.
MR PANDAY: According to his evidence, three strangers entered the shop. I'm trying to establish if they had left, or had come back in.
CHAIRPERSON: When did he say three strangers?
MS THABETHE: No, he didn't.
MS REDDY: It was one.
MR PANDAY: Okay, I'll rephrase the question, Mr Chairman. My apologies. Mr Edgar, is it correct that first three males entered the shop?
MR MUKUNGO: I stated that I learned that from Harom and I was told not to include it because it's something that was hearsay for me.
MR PANDAY: Now, when you were in the shop, how many did you see yourself?
MR MUKUNGO: Inside the shop, or when they entered the gate?
MR PANDAY: Inside the shop.
MR MUKUNGO: There was one person inside the shop.
MR PANDAY: Now tell me, were you able to identify the people?
MR MUKUNGO: The only person that I saw clearly was the one who was just in front of me.
MR PANDAY: Now do you recall the statement you gave to the police when this incident happened and you mentioned that
"I cannot be able to identify the culprits as it was a bit dark."
Do you remember that?
MR MUKUNGO: It was not dark, because it was around twenty past five.
MR PANDAY: And for any reason why you told the police this?
MR MUKUNGO: If you see a person for the first time, you do not necessarily assume that you are going to recognise them a second time. I had noted that the person was shorter than I am but I was not so sure that I would recognise him.
MR PANDAY: Now, when you say you took the gun from the one person, right, according to your statement
"I heard the one black male from whom I took the gun, shouting, demanding some money."
Was this when you were passing him or after you had taken the gun?
MR MUKUNGO: I do not quite follow.
MR PANDAY: You see, you say in your statement the following
"I heard the one black male from whom I took the gun, shouting, demanding some money."
Now when did you hear him demand the money?
MS THABETHE: ; Sorry, what page is it?
MS REDDY: What line is it?
MR PANDAY: page 108 at the third line from the bottom.
MR MUKUNGO: When he shouted, demanding the money, it was when I was standing at the back, facing towards the front door. That was after I had disarmed him and run towards the back door, that is when he shouted: "Come, let's get the money".
MR PANDAY: Now that's the part I'm confused about. You had already disarmed him, wouldn't that now create the impression that you are now in control of the shop? Wasn't the gun in your hand now? You see, you had already disarmed Ndimande, you took away the gun from Ndimande. Now why would Ndimande now still demand the money?
MR MUKUNGO: I do not know. Perhaps they were armed. They were armed, maybe that's what he trusted.
CHAIRPERSON: But I understand from your evidence that as you ran to the back you heard a shot and you turned round and saw your grandfather falling next to the counter and it is then when you heard this man shouting: "Come and get the money", just after your grandfather had been shot, is that so?
MR MUKUNGO: That's correct.
MR PANDAY: Now after you had taken this gun, did you hear any talk about money thereafter?
INTERPRETER: Would you please repeat that?
MR PANDAY: After you had taken the gun from Ndimande, did you hear about any talk of money thereafter?
CHAIRPERSON: He has told us that after he took the gun, he ran towards the back of the shop. He heard the shot, he saw his grandfather falling and he then heard Ndimande demanding money.
MR PANDAY: Okay. Thank you Mr Chairman.
CHAIRPERSON: That's what he has just told us.
MR PANDAY: Okay. Now Mr Edgar, did you see the person that shot your grandfather?
MR MUKUNGO: As I've already mentioned, I couldn't take a really closer look. I heard the gunfire and it was behind me as I was running.
MR PANDAY: Now would you agree with me if I had to say that had the applicants come there to rob the place, they would have still been in a position to rob it, even though you had disarmed one of them?
MR MUKUNGO: I think if I didn't have the gun in my possession, it would have been easier, but since I had already obtained the gun from them, it was no longer easy for them because I was also shooting, pointing in their direction.
CHAIRPERSON: You in fact shot at the man who said: "Come and get the money" and he ran away, is that not the position?
MR MUKUNGO: That's correct.
MR PANDAY: And finally Mr Edgar, would you dispute the applicant's version that they believed your grandfather to be a supplier of weapons to the IFP?
MR MUKUNGO: Would you please repeat that?
MR PANDAY: The applicants have testified that the only reason they were there to kill your grandfather is because they received information of him supplying weapons to the IFP and they were not there for robbery.
MR MUKUNGO: I dispute that.
MR PANDAY: Thank you.
NO FURTHER QUESTIONS BY MR PANDAY
MS MOHAMMED: Thank you Mr Chairman.
CROSS-EXAMINATION BY MS MOHAMMED: Mr Mukungo, it has been your evidence that Mr Ndimande said two things whilst he was in the shop. Firstly he said: "Come and stab him" and secondly he said: "Come and take the money." Now it is Mr Ndimande's instructions to me and even to say that he never said these words to you whilst he was in the shop. Do you care to comment?
MR MUKUNGO: He said so right in front of the door.
MS MOHAMMED: Thank you. I have nothing further.
NO FURTHER QUESTIONS BY MS MOHAMMED
MS THABETHE: Thank you. It's just clarifying questions.
CROSS-EXAMINATION BY MS THABETHE: How old were you when this incident happened?
MR MUKUNGO: I think I was 19 or 20.
MS THABETHE: When were you born? Maybe let's get that date.
MR MUKUNGO: 7th of March.
MS THABETHE: Which year?
MR MUKUNGO: 1971, the 7th of March.
MS THABETHE: Okay and were you staying at Umlazi or at Ngonyameni?
MR MUKUNGO: Umlazi. I used to go and help my grandfather in the shop in Ngonyameni and go back to Umlazi.
NO FURTHER QUESTIONS BY MS THABETHE.
MS REDDY: No re-examination. He can be excused.
NO RE-EXAMINATION BY MS REDDY
WITNESS EXCUSED
MS REDDY: We now call Ernest Sipho Mahlane to give evidence.
ERNEST SIPHO MAHLANE: (sworn states)
EXAMINATION BY MS REDDY: Thank you. What is your association with the incident in question?
MR MAHLANE: I was arrested together with the applicants.
MS REDDY: Why were you arrested together with the applicants?
MR MAHLANE: It is because I was present when they went to commit this crime.
MS REDDY: Did you, or do you confirm that you heard the evidence given by all the applicants today and yesterday?
MR MAHLANE: Yes, I do.
MS REDDY: Do you also confirm that you heard the version of the applicants and in more detail, when they said that it was you that informed them that Mr Lembede, the deceased in the matter, was providing weapons to the IFP?
MR MAHLANE: I heard them.
MS REDDY: Can you respond to their version?
MR MAHLANE: What I can say before this Committee is that what they said, it's a blue lie. I don't know anything about what they have said, but one can question me about what I know.
MS REDDY: So you're actually telling us that you did not provide them with any information to that extent?
MR MAHLANE: I don't know anything about the evidence which was led here yesterday and today.
MS REDDY: Did you know the applicants prior to the incident in question?
MR MAHLANE: Yes.
MS REDDY: How well did you know them?
MR MAHLANE: We were residents of Nzamane.
MS REDDY: Were you all friends?
MR MAHLANE: We were not friends, but we knew each other because we were staying in one area.
MS REDDY: Did you stay in close proximity to the applicants residence?
MR MAHLANE: Yes, it was in close proximity because it's a shack area.
MS REDDY: Did you belong to any political organisation in 1991, or even prior to that date?
MR MAHLANE: When I arrived in Nzamane from Ngonyameni, ANC was predominantly in Nzamane, therefore I followed the rest. I became a supporter of the ANC.
MS REDDY: Were you a member, active member, in the ANC?
MR MAHLANE: I was an ordinary supporter, like the residents of that area.
MS REDDY: Did you attend meetings or campsites like the applicants actually related to us, that they used to meet you at the campsite and they knew that you were a trustworthy ANC member, or rather supporter. What is your response to the version that the applicants put before this Committee?
MR MAHLANE: I used to attend the meetings like any ordinary community member. We used to attend those meetings.
MS REDDY: Did you assist in the conflict between the ANC and IFP?
MR MAHLANE: I never held any position in any of these organisations. I never participated in anything.
MS REDDY: Do you recall what was the version of the applicants in respect to your affiliation with the ANC and the role that you played?
MR MAHLANE: Yes, I heard them and that doesn't mean what they've said is true.
MS REDDY: So you're telling us the version of the applicants was not the truth?
MR MAHLANE: It is blue lies.
MS REDDY: Let's just go back to the 21st of June 1991.
ADV SANDI: ...(indistinct) let's try and exhaust this particular aspect. Do you know if there were any physical confrontations between members of the ANC and the IFP in that area?
MR MAHLANE: Yes, I do.
ADV SANDI: Did you personally take part in those fights?
MR MAHLANE: No. I was attacked.
ADV SANDI: Where were these fights taking place, was it at Ngonyameni or Nzamane?
MR MAHLANE: At Nzamane.
ADV SANDI: Thank you. Sorry, why did you leave Ngonyameni?
MR MAHLANE: It was my parent's home, therefore I left for my own home.
ADV SANDI: You did not leave because you were under attack from members of the IFP?
MR MAHLANE: No.
ADV SANDI: Thank you.
MS REDDY: What time period are you actually talking about, or what is the time period if you left the Ngonyameni area and you went to Nzamane, am I correct?
MR MAHLANE: Yes.
MS REDDY: Before the 21st of June, on what day did you actually, round about what time - not what time, rather round about which year, which month or which date if you could recall, you left the Ngonyameni area and went to Nzamane before the incident in question?
MR MAHLANE: I arrived in Nzamane in 1898.
MS REDDY: Would you be able to tell us whether the Ngonyameni area was IFP stronghold or ANC stronghold?
MR MAHLANE: During that period, there was no political activity in Ngonyameni, I don't know if people were hiding their affiliations, but there were no political activities at all.
MS REDDY: So in your opinion and according to your knowledge, are you tell us there were no conflicts between IFP and ANC in the said area?
INTERPRETER: Which said areas? Ngonyameni or Nzamane?
MS REDDY: Ngonyameni.
MR MAHLANE: Yes.
MS REDDY: You listened to the versions that were given by the applicants and in more detail where they stated in their evidence that you actually ...(intervention)
MR MAHLANE: Yes, I did.
MS REDDY: So at no stage did you approach the applicants and inform them that Mr Lembede was providing weapons to the IFP?
MR MAHLANE: Not at all and I don't know anything about this, I heard about it for the first time here.
MS REDDY: On the 21st of June 1991, can you relate to us what happened?
MR MAHLANE: Yes.
MS REDDY: Could you proceed and tell us exactly what happened?
MR MAHLANE: It was in the afternoon I think at about quarter to five, it was after I came from work. When I arrived at home next to a certain hostel there was a car belonging to Mr Nyawuza. There was Nkosinati, his father and Mkhize and Ndimande. The five of them, they were sitting under a tree drinking beer and I greeted them. They told me that they have been waiting for me and they had already mentioned to me before that they wanted me to take them to Ngonyameni and I had refused and on this particular day they reminded me that they wanted me to take them to Ngonyameni and I told them that I needed to go home and I went home. I changed. I left grocery because I had brought some grocery and as I was at home, Mkhize came to me and told me that these people were fighting, they wanted me to hurry up. I followed Mkhize. I went to the tavern where they were drinking because I also wanted to drink one quart.
As I was drinking that beer, Philbert, Mr Ndimande, came in and told me that they were waiting for me. He had a shotgun, a .38mm. I left that beer there. I went to the car. I got inside, in front of the bakkie and I sat between Nyawuza and Ndimande.
MS REDDY: Just stop there.
MR MAHLANE: They said they couldn't use the route which go past Isipingo because their car was not fit for that route, but they will use the one that goes past the township.
MS REDDY: Could I just interrupt you and ask you what were your reasons for you accompanying the applicants?
MR MAHLANE: I was forced because I knew how they were and I had to go with them.
MS REDDY: Can you describe the nature of the force?
MR MAHLANE: I was forced because initially I had refused and they came for the second time and I knew that if I were to refuse again, my life was in danger because they had already mentioned to me as to what they wanted in Ngonyameni.
MS REDDY: What did they mention they want from Ngonyameni?
MR MAHLANE: They said they wanted money. At first I was questioned as to how many shops are in Ngonyameni. I mentioned all of them up until to K Section and they said the first shop they will attack is Mr Lembede's shop because he was the one who was rich or making more money than other shops in Ngonyameni.
MS REDDY: Did they know Mr Lembede, the deceased, prior to the day in question?
MR MAHLANE: Yes, they knew him. I got this from the information they had.
MS REDDY: So in your opinion, what was the reason for taking you along?
MR MAHLANE: Would you please repeat that?
MS REDDY: In your opinion, what was the applicants' reason for taking you along with them to rob the store?
MR MAHLANE: As I've already mentioned, they didn't know his shop and they also didn't know the roads in that township.
MS REDDY: Are you confirming that the applicants knew Mr Lembede, but they didn't know where the shop was located?
MR MAHLANE: Yes.
MS REDDY: Are you also confirming that they took you along to do a pointing-out of the shop?
MR MAHLANE: The shop and also the roads, or the route that go past the township to Ngonyameni, they didn't know that route.
MS REDDY: Did you eye witness the whole incident that occurred at the shop?
MR MAHLANE: No, I didn't.
MS REDDY: When you arrived at the shop, can you tell us what happened thereafter?
MR MAHLANE: We didn't actually arrive in the shop, the car stopped at a corner near the shop. We alighted and they discussed as to how they're going to commit this. Nyawuza took a gun and gave it to his son. Mr Ndimande had his own gun. Then they left. I was left with Mr Nyawuza on that corner where he had parked the car. A few minutes later we heard gun fire. Immediately Nyawuza drove his car closer to the shop now and then I started walking back and later I saw the car driving faster and he couldn't completely stop. I jumped in the car as it arrived where I was.
MS REDDY: Is it correct if I were to say to you that you did not accompany the applicants into the shop at any stage?
MR MAHLANE: No, they only went once in that shop, they didn't go there twice.
MS REDDY: So you didn't have to point out Mr Lembede to them?
MR MAHLANE: No.
MS REDDY: According to your knowledge, do you know why the applicants chose a Friday?
MR MAHLANE: I think they chose a Friday because businesses usually they make more money on Friday.
MS REDDY: ...(indistinct - mike not on) Did you know whether the applicants belonged to any political organisation?
MR MAHLANE: No. I don't know anything at all and we stayed in one area for quite a long time because I was a student or a scholar in the school where he was heading and I don't know anything about his political affiliation.
CHAIRPERSON: Who are you talking about? Whose political affiliations?
MS REDDY: The applicants. Just a clarification, I'm actually asking you whether you know whether the applicants belonged to any political organisation.
MR MAHLANE: They were ANC members or supporters, but not all of them, some of them.
MS REDDY: When you say some of them, can you clarify that point? Which one of those, of the applicants?
MR MAHLANE: I used to see Philbert and Dikisi, I never saw Nyawuza and his son.
CHAIRPERSON: Before that, did you tell us that you went to the school that Mr Lembede was the headmaster of?
MR MAHLANE: Yes.
CHAIRPERSON: And did you get to know him quite well?
MR MAHLANE: Yes.
CHAIRPERSON: We've heard, we've been told that he had trouble with his legs and he had to be drive, he couldn't drive his own car, he had to be drive around. Did you know that?
MR MAHLANE: When I left Ngonyameni area, I knew that because I used to see him limping.
MS REDDY: Would you be in a position to tell us whether Mr Lembede belonged to any political organisation?
MR MAHLANE: I've already mentioned this. I said I didn't know anything about him being affiliated with any political organisation.
MS REDDY: What was the attitude of the community towards the applicants?
MR MAHLANE: Most of the community members were being harassed by these people and I am one of those people who's been harassed by these people.
MS REDDY: Are you aware whether they were involved in criminal activities?
MR MAHLANE: I know about what used to happen in the area at Nzamane. I wouldn't talk about what happened in Courts, I don't know, but I know what they used to do in Nzamane.
MS REDDY: Could you just tell us?
MR MAHLANE: Torturing people, shooting people, killing people. They were killing the very same people whom they are claiming today that they were protecting. I was one of those people. I was assaulted 200 times. This was done by Mr Mthambo, the one they say I've spoken to him.
MS REDDY: Do you know who was in charge of the ANC in 1991 in the Nzamane area?
MR MAHLANE: Yes, I do know.
MS REDDY: Can you tell us?
MR MAHLANE: Mr Ndimande.
MS REDDY: Did you actually hear the version of all the applicants when they said to us that it was Mr Mthambo who was heading the ANC at that time and it was Mr Mthambo who was the person who issued the instructions to them based on the information that you gave? How would you respond to that?
MR MAHLANE: That's a blue lie because I wasn't in good terms with Mthambo and Mthambo was not an ANC member and they know that Mthambo was killed by comrades. I don't have a place of my own because of Mthambo. Mthambo took my house.
MS REDDY: So you're actually sure about the fact that Mr Mthambo was not heading the ANC at the attack?
MR MAHLANE: Yes.
MS REDDY: Thank you Mr Mahlane. No further questions, Mr Chairperson.
NO FURTHER QUESTIONS BY MS REDDY
CHAIRPERSON: ...(indistinct - mike not on) It seems to me we've reached the time, normal adjournment time. We will now adjourn optimistically for half-an-hour, probably more likely three-quarters.
MS THABETHE: Mr Chair, can I just go and check because the previous times we've had to wait for lunch.
CHAIRPERSON: Well, the first time we adjourned after one and we had to wait because the lunch had been taken away to be reheated, so do go and check.
MS THABETHE: Whether it's ready. Has somebody gone?
COMMITTEE ADJOURNS
ON RESUMPTION
MR PANDAY: I think the problem he might have, Judge, if he's gone outside he can only come in at 2 o'clock because of ...
JUDGE POTGIETER: They lock the gate.
MR PANDAY: Ja, I had ...
CHAIRPERSON: ...(indistinct - mike not on)
MR PANDAY: I had the problem now. I think whilst we're waiting for him, I mean we stopped at a convenient point with his cross-examination, we can go on with any of the TRC investigators in so far as their evidence is concerned, if we need to complete them.
MS THABETHE: The Committee will bear with me, I was caught unawares. Mr Chair, may I ask one of the Committee members to swear Sheila Mkhize in?
SHEILA MKHIZE: (sworn states)
JUDGE POTGIETER: Ms Thabethe.
EXAMINATION BY MS THABETHE: Thank you Mr Chair. Ms Mkhize, are you the investigator for the TRC?
MS MKHIZE: Yes, I am.
MS THABETHE: Were you investigating the matters of Nyawuza, the two Nyawuzas, Meyiwa and Ndimande?
MS MKHIZE: Yes, to clarify there, I was investigating a matter of Elijah Nyawuza.
MS THABETHE: And subsequently the others?
MS MKHIZE: Yes.
MS THABETHE: Now we have a statement in the bundle at page 48 which you took when you went to see Mr Elijah Nyawuza.
MS MKHIZE: Yes.
MS THABETHE: Who did you go with when you went to take the statement?
MS MKHIZE: I went with the other investigator, Joshua Sikumbuso Cele.
MS THABETHE: We've heard evidence yesterday from Elijah Nyawuza denying the contents of some of - denying some of the contents in the statement at page 48. I've highlighted the contents that he denies, what would be your response to that?
MR PANDAY: Sorry, I think if my learned friend would put the contents as denied to Ms Sheila ...
MS THABETHE: On record.
MR PANDAY: Yes, just asking her to read it off, to highlight it.
MS THABETHE: Okay. Thank you Mr Chair. Maybe before I ask her to respond on the contents, Ms Mkhize, can you tell us, did you consult with the witness before you wrote the statement?
MS MKHIZE: Yes, I did.
MS THABETHE: Did you read it to him after you had written it?
MS MKHIZE: Yes I did.
MS THABETHE: And then what happened? Did he sign it after that?
MS MKHIZE: He did put a mark, because he was unable to sign, to endorse his signature.
MS THABETHE: Right. Now on paragraph 3 of his statement, it's written
"I charged them R60 for taking them"
and then I'll jump and say at paragraph 5 he says:
"The sum of R60 that I charged them was not for my personal gain, it was merely for petrol."
The applicant yesterday denied this. What would be your response to that?
MS MKHIZE: My response is I wrote down what he told me and of which he confirmed after I had read it out to him.
MS THABETHE: So did he say he charged them R60 as opposed?
MS MKHIZE: Yes I will say, I took down exactly what he told me, so all the contents are exactly what he told me and he said to me that he charged the co-perpetrators this, the alleged co-perpetrators the sum of R60 for petrol.
MS THABETHE: Yesterday the applicant indicated that he said to you the cost of going to Ngonyameni Reserve was approximately R60 and that's the amount of petrol which he put into his car, he didn't charge anybody.
MS MKHIZE: I would say that is not the truth according to what he told me, because firstly, I had to pose questions to him before writing down a statement and then I subsequently requested that what he tells me be put down in writing and he agreed to that, so I did exactly - I wrote down exactly what he told me.
ADV SANDI: Sorry, Ms Thabethe, did he change that later and say that was actually money that came from him, he spent R60 for petrol there? Didn't he change that later in his testimony?
MS THABETHE: Sorry, I don't understand the question. Is the question did he change and say that was money coming from him?
ADV SANDI: Yes, that's the way I understood him yesterday, right towards the end of his testimony.
MS MKHIZE: Yes and that's what I put to Sheila, that he changed and said the money was coming from him.
MS THABETHE: What language were you consulting with Mr Elijah Nyawuza, what language were you using?
MS MKHIZE: We used Zulu.
MS THABETHE: And then did you write the statement in English?
MS MKHIZE: Yes, I put down the statement in English and I did explain to him that the statement will be put down in English, so that is my interpretation.
MS THABETHE: Thank you Mr Chair.
JUDGE POTGIETER: Was that the only difference? Wasn't there more? What about the political objective?
MS THABETHE: Oh yes. Thank you Mr Chair. I'm indebted to you. Paragraph 5, the applicant, or rather you had written
"I did not see to achieve any political objective in this involvement."
The applicant indicated that what he actually told you is that he did not know Mr Lembede before and therefore had no objectives to kill him, but after he was given instructions to kill him, he followed them as an ANC member. What would be your response to that version?
MS MKHIZE: I would say I first asked him questions, as I've said earlier on, so after he had told me that he was given the sum of R60 for petrol, I asked him: "Was that for your personal gain or not, or did you seek any - sorry, to say, I first asked him whether he asked the money for his personal gain or not and then he told me that he did not ask the money for his personal gain and it was merely for petrol, as it is indicated in paragraph 5 and then he proceeded to say that he did not seek to achieve any political objective whatsoever, or any gain whatsoever in this involvement, he merely involved himself in taking, in conveying the co-perpetrators to the scene of crime and he was not aware of any political objectives being sought by the other perpetrators.
NO FURTHER QUESTIONS BY MS THABETHE
ADV SANDI: ...(indistinct) at any stage in the course of what you have referred to as consultation with him, express any desire to withdraw his application for amnesty? Did he say such a thing?
MS MKHIZE: Do you mean when we, at the first, in the first incident when we made a consultation, or during the interview?
ADV SANDI: When you were taking the statement from him, did he say: "I'm now withdrawing my application because this thing is not political"?
MS MKHIZE: Okay, I will put it this way. I first explained to him the reason why I was there in the prison, so I asked his permission to have a sort of an interview and I asked to take down, to put down in writing whatever he was going to tell me and then he agreed. Then I posed questions and during that interview, as I mentioned earlier on that I was with my other colleague Mr Cele, so he intervened while we were talking with Mr Nyawuza and then he asked him questions regarding the political objective, indicating that he had the background of the whole incident because he previously worked in Isipingo police station, whereby he knows exactly what happened in this particular incident. Then later on this Mr Nyawuza turned to me and said he now wishes to withdraw his application on the note that he understands that it is - the matter was not political, that is what he told me. Furthermore, I approached him and I asked him whether he still wants to proceed to withdraw his application on the very same statement that he has made to me or does he wish me to start afresh and make a new statement. He told me that no, he wants to proceed on the very same statement that he was making to me.
JUDGE POTGIETER: There's just another aspect as well, in paragraph 6, that first sentence in paragraph 6. To my mind, the way I understand his testimony, Nyawuza also disputed this. The effect of the sentence, namely that he now believes it was not political and later learned that the victim Lembede was not involved in any political organisation, that was also disputed, now what is your response to that? Where does that come from, that information?
MS MKHIZE: I think, well I would say this is what he told me after he had been talking to Mr Cele, so there were many questions that he answered that were being asked by Mr Cele, my colleague, and which maybe I assume would have caused him to later on turn to me and tell me that he now wishes to withdraw his statement, because he believes that this matter was not politically motivated.
JUDGE POTGIETER: And you say that the source of this sentence here came from him, from Mr Nyawuza, he told you this.
MS MKHIZE: Yes Sir, Mr Nyawuza told me that.
JUDGE POTGIETER: He's the source of this sentence here?
Yes, thank you.
CHAIRPERSON: Did Mr Cele tell him something like that?
MS MKHIZE: Can you clarify that Mr Chairman.
CHAIRPERSON: Did he tell him that he knew about the background and he knew that it was a non political?
MS MKHIZE: Yes, Mr Chairperson.
CHAIRPERSON: And he asked, Mr Cele asked Nyawuza whether he was telling the truth.
MS MKHIZE: Yes he did.
CHAIRPERSON: It was a fairly, it would appear to have been a fairly heated discussion between them.
MS MKHIZE: Yes, Mr Chairperson, as I indicated that he intervened while I was busy conducting the interview with Mr Nyawuza.
CHAIRPERSON: And it was after Cele had told him as fact the things, that he said this.
MS MKHIZE: Yes, Mr Chairperson.
CHAIRPERSON: Anybody else want to ask any questions?
MS MOHAMMED: Mr Chairman, I have no questions thank you.
MS REDDY: Yes, Mr Chairperson.
CROSS-EXAMINATION BY MS REDDY: Ma'am can you tell us how long you were assigned the duty of Investigator for the TRC?
MS MKHIZE: Since 1996, the 20th of May.
MS REDDY: In your opinion, what words did Mr Joshua Cele say to Mr Nyawuza that could have suggested that he should actually change his statement or withdraw his application? If there was, you could respond.
MS MKHIZE: In my opinion, Mr Cele asked him, I'll rephrase this - the intervention of Mr Cele must have caused him to realise something, I would say something like, seeing that he has now been caught out in a way where he was confused, I would say, because he turned to me without having responded to other questions from Mr Cele, then he turned to me to say he would like to withdraw his application.
MS REDDY: In your opinion, did Mr Joshua Cele intimidate Mr Elijah Nyawuza?
MS MKHIZE: I wouldn't say he intimidated him. As far as I recall, there was nothing intimidating in his statement, or in his questions to Mr Nyawuza.
MS REDDY: Once again, in your opinion, why do you think the applicant, Mr Nyawuza, is giving us or has given us a different version to what you have stated to this Committee?
MS MKHIZE: I don't have much to say there, but I would say he is trying other avenues to maybe, I would say, to have the Committee reconsider his application, seeing now that the other applicants' matters have been heard.
MS REDDY: So would you confirm that he's actually taking advantage of the situation to cloud the issue of the robbery and justify it with the issue of the or the motive of a political nature?
MS MKHIZE: I won't have much to say there because I did not have any particular interest in the matter except that I was only investigating and while on that note, whatever he told me I had to put it down into writing and make use of that maybe for other investigations as well.
MS REDDY: Thank you. No further questions.
NO FURTHER QUESTIONS BY MS REDDY
CROSS-EXAMINATION BY MR PANDAY: Can I call you Sheila?
MS MKHIZE: Yes, you can.
MR PANDAY: Sheila, would I be correct in assuming that you were assigned to carry out the investigations with Mr Nyawuza?
MS MKHIZE: Yes.
MR PANDAY: Now for what particular reason did Mr Cele accompany you?
MS MKHIZE: I would start by saying as investigators at that particular time, we didn't have enough vehicles for each and every member to go out and do his or her work. Now it happened that we were sharing a vehicle, so in that way he was in a way involved in my investigations, as I was in his.
MR PANDAY: Anyhow, I accept that you were sharing a vehicle, but did he have his own personal work or personal investigations to attend to at the prison?
MS MKHIZE: No.
MR PANDAY: Alright. Now, so in actuality ...(intervention)
JUDGE POTGIETER: You were working as a team?
MS MKHIZE: Yes, Sir, we worked as a team.
JUDGE POTGIETER: You were forced to share your workload.
MS MKHIZE: We were in a way because whatever I heard, then he also had to account because we were doing one work, we had the same work at the same time.
JUDGE POTGIETER: Thank you. Sorry.
MR PANDAY: So will it be correct to assume that both of you were working on the same file, on Mr Nyawuza's file?
MS MKHIZE: Yes, we had, I would say not both of us were working, but he had access to my file as I had on his.
MR PANDAY: No, I understand that, but like if you have to take like in the police, you have an investigator that investigates a crime, that investigator is assigned to that and you won't out of the ordinary find unnecessary investigators chipping into that file. Now that is what I'm just trying to establish here. Would Mr Cele have any reason to interview Mr Nyawuza?
MS MKHIZE: He would, because as a partner, I would call him, he had to pose questions or to intervene and proceed with the investigation that I was doing.
MR PANDAY: Okay. Now, you mentioned that in conducting your interview with Mr Nyawuza you would speak to him in Zulu.
MS MKHIZE: Yes.
MR PANDAY: You would pose questions to him in Zulu and he will also then reply.
MS MKHIZE: Yes.
MR PANDAY: Now, pages 50, 51, and 52 are actually the hand-written version of pages 48 and 49. Now is that your handwriting?
MS MKHIZE: Yes, it is mine.
MR PANDAY: Right. Now what I'd like to know is that, was this statement, or this written version of pages 48 to 49 done after you had obtained the story from Mr Nyawuza?
MS MKHIZE: As we talked, as we moved along with the story, I was writing.
MR PANDAY: Now, would I be also correct to assume that Mr Nyawuza would have been telling you a lot of things that went on with regards to this incident?
MS MKHIZE: I don't get your question because ...
MR PANDAY: Okay. You went to conduct an interview with Mr Nyawuza.
MS MKHIZE: Yes.
MR PANDAY: And in conducting this interview you posed questions and he would have given explanation and at times his explanation would have been lengthy.
MS MKHIZE: Yes.
MR PANDAY: Now would I be correct in assuming that you may very well have preceded the explanations contained in pages 50 and 51?
MS MKHIZE: No, because let me explain that. As I obtain a statement, it is in Zulu and then I put it down in writing in English, so as he tells me a statement, I proceed. If his statement or his answer is a it lengthy I will ask him to stop and then I proceed, I carry on writing until the end of the sentence and then we proceed. That is my, that is the method that I use.
MR PANDAY: Okay and then after you had come to the end of the statement, or after you had translated the English, you'd ask the question, he'll give you an answer, you'll write it down, and that went on until you came to the end of the statement and thereafter he will have had to put the cross?
MS MKHIZE: Yes.
MR PANDAY: So you did not read the statement in return to him, after you had put it down?
MS MKHIZE: It is my duty to read out a statement as soon as we've finished the story.
MR PANDAY: No, I know what your duty is. What I want to know is that after you asked the question, he gave an explanation, you wrote it down and then when I asked you just now I said: "When you got to the end of it, he then put his X?"
MS MKHIZE: No, the X is only put after he has confirmed it, after I'd read it out to him and then he confirms that and then he put his mark. He swears and then he put his mark.
MR PANDAY: So this entire statement in English was then read back to him in Zulu?
MS MKHIZE: Yes, it was explained to him in Zulu.
MR PANDAY: Now, in so far as Mr Cele is concerned, you mentioned that Mr Nyawuza seemed to be confused and whilst talking with Mr Cele, he then responded by relating paragraph 6 where: "I strongly believe now that this activity was not political".
MS MKHIZE: Yes.
MR PANDAY: So can one assume that his belief only changed at that stage and not at the time when this matter, when this incident had taken place?
MS MKHIZE: I would say so.
MR PANDAY: Okay, thank you.
NO FURTHER QUESTIONS BY MR PANDAY
MS REDDY: Just one point of clarification.
FURTHER CROSS-EXAMINATION BY MS REDDY: Do you confirm that there was nothing amiss when Mr Joshua Cele intervened whilst you were consulting with Elijah Nyawuza?
MS MKHIZE: Yes.
MS REDDY: Thank you Ma'am, no further questions.
NO FURTHER QUESTIONS BY MS REDDY
NO RE-EXAMINATION BY MS THABETHE
CHAIRPERSON: Thank you.
MS THABETHE: Mr Chair, may I ask for your indulgence that we, as a matter of you know finishing the process, have Mr Cele as well then we proceed with Mr Mahlane, just to complete the whole process? Thank you. I at this stage call Sikumbuso Cele, Joshua Sikumbuso Cele and may I ask Ms Mkhize to be excused, Mr Chair? Thank you.
WITNESS EXCUSED
JUDGE POTGIETER: Mr Cele, just switch on the microphone and just rise to take the oath. Give your full names for the record.
JOSHUA SIKUMBUSO CELE: (sworn states)
CHAIRPERSON: Yes, Ms Thabethe.
EXAMINATION BY MS THABETHE: Are your full names Joshua Sikumbuso Cele?
MR CELE: Yes, Miss.
MS THABETHE: Are you an investigator for the TRC?
MR CELE: That is correct.
MS THABETHE: How long have you been an investigator for the TRC?
MR CELE: Two years Miss, since 1998.
MS THABETHE: Is it correct that this morning I gave you a tape to listen to of Mr Elijah Nyawuza?
MR CELE: That is correct, Miss.
MS THABETHE: And would you say then you are well versed with the allegations he has made against you?
MR CELE: That's correct.
MS THABETHE: With regard to the intimidation that he has alleged about you, would you say you intimidated him?
MR CELE: No, Miss.
MS THABETHE: Why do you say so?
MR CELE: I was present when he was being interviewed by Ms Mkhize and during the interview I picked up that I had some knowledge about the incident, so I just asked him a few questions to uncover the truth and I did not subject any pressure to him to withdraw his matter.
MS THABETHE: When he turned to Ms Mkhize and said he wishes to withdraw because he realised the matter was not political, would you say this was as a result of your- of what you said to him?
MR CELE: Well, Miss, I feel that it could have happened that he realised that his actions were known. I could say that could happen that he may have withdrawn because of it.
ADV SANDI: Tell us, what actions are you talking about? He realised that his actions were known. What actions?
MR CELE: I mean the commitment of the crime, Sir.
MS THABETHE: Now I just want to attend to another allegation that was made against you. Mr Elijah Nyawuza indicated, I'm sure you listened to that as well on the tape, that when there was a hearing where Zuko Mapoma was the Evidence Leader, you also uttered some intimidating words, If I may say so, in the passages, saying that this matter was not political and you don't know what they were doing here.
MR CELE: No, Miss, that is incorrect. I was actually telephoned by Sheila, Ms Mkhize, that the Judge was looking for me, so when I had drove back to the office, I went straight to her office to find out what was happening and then I met this gentleman also, the applicant. I did not speak to him, I only commented to Sheila, how can he make such allegations that we forced him, that I forced him to withdraw his matter and that is all, then I went out and went to my office which is also across Sheila's office.
MS THABETHE: Now Mr Elijah Nyawuza is here today as well. Would you say really your intervention when he was being interviewed, or rather let me rephrase - when you intervened and asked questions, was your intention to intimidate him?
MR CELE: No, that is not correct. You see if you know about something and if you investigate and it is the object of investigation to uncover the truth, I just fired out some questions because it came to my mind that I know about this incident.
MS THABETHE: So would you say you felt it as part of your duty as an investigator to let the applicant know about what you knew about this matter, would that be putting it correctly?
MR CELE: Yes, Miss.
MS THABETHE: Now I just want to turn to the affidavit that was written by Sheila, which was signed by Mr Nyawuza because you were there during the interview. Do you recall Mr Elijah Nyawuza telling Ms Mkhize that he charged the other perpetrators R60?
MR CELE: Yes, I do remember.
MS THABETHE: Thank you Mr Chair.
NO FURTHER QUESTIONS BY MS THABETHE
CROSS-EXAMINATION BY MS REDDY: Prior to be assigned to the TRC, how long were you involved in investigation?
MR CELE: I joined the Detective Branch in 1990, so it could be about 7 or 8 years.
MS REDDY: When you were asking or when you related to Mr Nyawuza that you knew about the incident he spoke, what tone of voice you used?
MR CELE: Ma'am I was using my normal voice as I am speaking now.
ADV SANDI: What exactly did you say to him you knew about the incident?
MR CELE: Sir, I actually found out about Mr Lembede's political affiliation from the applicant and then I also stated what I knew about the matter, that Mr Lembede was the principal of a school and owning a near-by business. I don't remember him being involved in some violence or political things.
MS REDDY: Mr Cele, I just need you to assist me with this, which I omitted to ask Ms Sheila. If you would look at the affidavit on page 48, could you just ask...?
MR CELE: Yes, you may go ahead.
MS REDDY: Go to para 6.
MR CELE: Yes, Ma'am I can see that.
MS REDDY: Alright. That's where Mr Nyawuza says, and I quote
"I strongly believe now that this activity was not political because I learned later that the victim, Lembede, was not involved in any political organisation, although I was an ANC member."
Can you actually tell us why he made that statement?
MR CELE: Well, Miss, I cannot. I don't know what was in his mind. As I've said earlier I feel that it could have, as soon as he realised that some people know what actually happened there and then he made this statement.
MS REDDY: In your opinion, why do you think Mr Nyawuza related to this Committee that you intimidated him into withdrawing his application?
MR CELE: Well it could be because he wanted to pursue with his application and he wants it successful. Well I cannot really say what are his intentions.
MS REDDY: One last question. Were you, prior to this incident here today, involved in a similar situation?
MR CELE: Can you repeat yourself Madam?
MS REDDY: Alright. Let me just direct you there. We have the applicant, Elijah Nyawuza and he has related to this Committee that you intimidated him and as a consequence of that intimidation, he was forced into withdrawing his application for amnesty. Are you with me so far?
MR CELE: Yes, Ma'am.
MS REDDY: Alright. Prior to this, were you involved in a similar situation where an applicant made this allegation to you?
MR CELE: No, no, no, never Ma'am. You see there's a gentleman in this Court here, I believe he's a member of the ANC. I investigated his amnesty application when he was in the same prison and he can tell this Committee what kind of a person I am when I approach the applicants and the victims.
MS REDDY: Thank you Mr Cele, no further questions.
NO FURTHER QUESTIONS BY MS REDDY
CHAIRPERSON: Sorry, can I just clarify? You said, I think, you were asked why the applicant made this statement and you said as soon as he knew that somebody knew what had happened there, he withdrew his application.
MR CELE: Mr Chair, can you repeat your question please?
CHAIRPERSON: As I understood it, you said that the reason for him making this statement in paragraph 6 was that he realised that somebody knew what had happened there.
MR CELE: Yes, Mr Chair.
CHAIRPERSON: But this conversation you had with him, took place on the 9th of December 1998.
MR CELE: Yes, Mr Chair.
CHAIRPERSON: He had been in Court, he had heard the evidence, he had been convicted and sentenced in November 1995, so he knew 3 years before that people knew what had happened there.
MR CELE: Yes, Mr Chair. It could have happened that he did not know that they will be available to testify as well before the Committee.
MS REDDY: Mr Chairperson, could I just assist with that point? This is my learned opinion, that when Mr Cele made statement, what he was actually referring to in perspective was, because Elijah Nyawuza knew that Mr Cele knew of the whole incident, that is why he subsequently withdrew his statement. Mr Cele could you just respond?
JUDGE POTGIETER: You mean that its an ordinary crime, it was not politically motivated?
MS REDDY: Yes.
JUDGE POTGIETER: Is that the focus of that?
MS REDDY: Ja, I mean in my learned opinion, I think that's what Mr Cele was referring to. It was because Nyawuza knew that he knew and he was actually before him, that is why he withdrew the application. Mr Cele you could assist us here?
MR CELE: Yes, Ma'am that is right.
CROSS-EXAMINATION BY MS MOHAMMED: Thank you. Mr Cele at the point when you realised that you had prior knowledge about this incident, did you not say, or did the thought not occur to you that maybe, because you were not in charge of this investigation, that you should actually disassociate yourself at that stage?
MR CELE: Madam we're working together, we help each other with the work as well as Ms Mkhize said, there was nothing to make me not to say anything when we need to get information from the applicant.
MS MOHAMMED: Thank you.
NO FURTHER QUESTIONS BY MS MOHAMMED
CROSS-EXAMINATION BY MR PANDAY: Mr Cele, we know now that you had information, you were able to identify this matter. Now where did you reside that you were able to know of Mr Lembede?
MR CELE: At that time I was residing in Umbumbulu.
MR PANDAY: Umbumbulu. Now how far is Umbumbulu from Ngonyameni?
MR CELE: It could be about 10 kilometres.
MR PANDAY: And at that time you were stationed at the Isipingo police station.
MR CELE: yes.
MR PANDAY: Right. Now upon going to interview Mr Nyawuza, did you have the police docket in your possession?
MR CELE: No Sir, no I didn't have.
MR PANDAY: So you did not know the contents of this docket?
MR CELE: No I didn't know.
MR PANDAY: Now I seem to - the reason I ask you this is that in paragraph 5 we've got a copy of an affidavit, I've got one that was faxed to me on the 22nd of May, by the TRC, it's come from the TRC, the one of - Joshua Cele's affidavit, the one where you and Sheila deposed the affidavit, now this is what your paragraph 5 reads
"I now wish to state that I knew about the incident. The deceased was the principal of a school in the Ngonyameni Reserve. I did not know his political affiliation. According to Mr Mahlane who turned to be a State Witness in the criminal trial, he and the applicant planned and robbed the deceased's shop."
Now where did you obtain that piece of information?
MR CELE: You see if you are working as detectives, every morning you have a meeting and the serious matters are being discussed, what happened here, what happened there and I remember that at that time.
MR PANDAY: Right, so now as a detective, would I be correct in assuming that one of your primary functions would be to ensure that a case is prosecuted to its fullest?
MR CELE: yes, that's correct.
MR PANDAY: Right.
MR CELE: Another thing - let me just clarify this. I made this statement recently and at that time we already had a docket.
MR PANDAY: Yes. Well the statement was made last week, so you would have had the docket, ja.
MR CELE: Ja.
MR PANDAY: But now you go on to say that on the day in question when the deceased was robbed, he put up resistance and you go on to explain the situation. Now in paragraph 6, the investigating officer who investigated the criminal aspect of the matter, Insp R S Gwabasa.
MR CELE: Gwabasa.
MR PANDAY: Gwabasa, he's assisting in tracing Mr Mahlane who could possibly ... Now when you say you're tracing Mr Mahlane, was this for the TRC?
MR CELE: Yes, for the TRC.
MR PANDAY: Yes.
MR CELE: We couldn't find him initially, Mr Mahlane, because he changed his residence, so I had to get in contact with the investigator who used to visit him when he was investigating his case.
MR PANDAY: But now, what I'd also like to know ...(indistinct), how did you know that Lembede was a principal of a school?
MR CELE: This school was situated in our patrol area and his shop as well, so when we do our patrols and if we investigate something, we also go into the area and we know who is the teacher there and so on.
MR PANDAY: So would you say that you shared a relationship, not a close relationship, but a relationship where you were known to one another?
MR CELE: No there was no relation at all. Sometimes the school will get broken, you have to meet the principal to tell you what happened.
MR PANDAY: Yes, well I'm talking about that sort of relationship, I'm not talking ...(intervention)
MR CELE: Ja.
MR PANDAY: Yes. Now according to Sheila's evidence, Mr Elijah was a bit confused and apparently he answered questions that you put to him, explaining him that you knew about the incident.
MR CELE: Yes.
MR PANDAY: Is it possible ...(intervention)
MS THABETHE: Sorry, Mr Chair ...
MR PANDAY: May I just please complete ...
MS THABETHE: Sorry, can I correct something? It was her opinion, it wasn't a fact.
MR PANDAY: Is it possible that although you had not set out to intimidate Elijah, he himself may have for some reason as a result of this information you had, now felt that there was no political basis?
MR CELE: If he knows that, he was adamant of these things, that wouldn't in any way cause him to withdraw, he should just proceed.
MR PANDAY: And as an investigator, would you say your duties are to investigate TRC matters of the extent that it is brought before the Commission, or to an extent where it stops before it reaches the Commission?
MR CELE: You see, I didn't even direct this exactly to him, but I was just making aware the investigator what I knew and then what was going on, so if you know about something, it happens automatically that you talk about it, because I was free, we were talking very calmly and very friendly.
MR PANDAY: No, no, my question to you is now as an investigator for the TRC, would you say your duty is to ensure a matter reaches the Commission, or you will help assist in preventing it from reaching, not preventing in a malicious way, but to just save the Commission the time from hearing matters that would appear to be robbery?
MR CELE: Ja, but the duty is to ensure that the matter reaches the Commission, but we must be able to present to the Commission all the available information that you got during the investigation.
MR PANDAY: Yes, I accept that. Now when you were talking to Mr Elijah, did you pose questions to him to maintain his position that this may have been a political matter in his opinion still?
MR CELE: No, it had nothing to do with that, I was finding out some things to clarify his application. I had no interest whether he goes on or he gets amnesty, I did not have that sort of ...
MR PANDAY: Now do you not think from a position of being impartial it would have been advisable for you not to inform him as to what you knew in the incident? Wouldn't it have helped prepare the case for the TRC in a much more efficient manner and proper manner?
MR CELE: Ja, but I didn't take it into that light so much, because I had no intention to make him not to go on with his application whatsoever.
MR PANDAY: I understand that it may not have been your intention, but as a result of your actions what he perceived.
MR CELE: Well I don't know why did he perceive that in that way, if he knows that he was - I don't mind about his application, he would have just gone on. It's not my duty to make him to withdraw his application.
MR PANDAY: Mr Cele, would I be correct in assuming that the detectives from the Isipingo police station investigated the matter of Mr Lembede?
MR CELE: Yes, you're right.
MR PANDAY: You are from Isipingo police station?
MR CELE: Yes.
MR PANDAY: And this fact was made known to Mr Elijah that you at the time were a policeman in the station?
MR CELE: Yes.
MR PANDAY: So you would have told him that: "At the time I was a policeman investigating Isipingo police station, I know of this matter"?
MR CELE: Yes.
MR PANDAY: Now as I say, you may have not set out intently to intimidate him, but by virtue of all of this, this he may have felt.
MR CELE: But I don't see it in any way intimidating, that that's intimidating a person.
MR PANDAY: Okay. Thank you.
NO FURTHER QUESTIONS BY MR PANDAY
MS REDDY: Could I just ask one question that I think is of importance?
FURTHER CROSS-EXAMINATION BY MS REDDY: In your opinion, or rather I should just ask you, is the onus upon an investigating officer assigned to the TRC, to bring to the applicant's notice that they have insight to the matter at hand?
MR CELE: Can you just repeat your question, Madam?
MS REDDY: Okay. You actually told Elijah Nyawuza that you knew about the incident?
MR CELE: Yes.
MS REDDY: Right. Now what I'm actually asking you, is there an onus upon you to actually inform the applicant that you knew about the matter?
MR CELE: Yes, I was finding out because as I said earlier, the object of investigation, if you investigate any matter, is to uncover the truth, to get to the truth, what happened.
MS REDDY: So in other words, you are confirming with me that there's nothing amiss when you told Elijah Nyawuza that you knew about the incident in question?
MR CELE: Yes.
MS REDDY: Thank you.
NO FURTHER QUESTIONS BY MS REDDY
FURTHER CROSS-EXAMINATION BY MR PANDAY: Sorry just one. Mr Cele, isn't it correct that your job as the investigator is to obtain evidence and put before the Amnesty Commission and it is there where the truth will be uncovered?
MR CELE: No as Investigator, I'm going to bring all the information that I've obtained to the Commission, so it's for me to know as well.
MR PANDAY: Thank you.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Talking of bringing everything to the Commission, I see in your affidavit, you go on to say, it was not read
"On the day in question when the deceased was robbed, he put up resistance and was shot. The culprits were disturbed by a large number of people who were drinking
within the shop premises and the culprits escaped without obtaining anything."
Now there has not been one word mentioned of there having been a large number of people drinking in the shop premises. It would have been extremely relevant, wouldn't it, to have people like that to tell us what happened?
MR CELE: Well Mr Chair, that was an opinion as I was receiving and also receiving information because I wasn't actually there, but these home shops, normally the people buy liquor and drink outside the shop, that's what I was told that there were people also drinking in the shop.
CHAIRPERSON: Who told you this? The investigating officer?
MR CELE: Yes, Sir.
CHAIRPERSON: Well, couldn't one find out from him if he had such information?
MR CELE: Yes, Mr Chair, he is here.
CHAIRPERSON: Thank you. Right ...(indistinct - mike not on)
MS THABETHE: Yes. I don't know whether Mr Chair wants the investigating officer to confirm or he can confirm. Is it necessary?
CHAIRPERSON: It's something that should have been done, I think before so the questions could be put to the witnesses and the applicants when they gave evidence.
MS THABETHE: Okay.
CHAIRPERSON: I don't suppose ...(indistinct - mike not on). I in fact asked one of his sons who said they did not have ..., they were not ...
MS REDDY: That is the position.
JUDGE POTGIETER: Done, Ms Thabethe?
MS THABETHE: Yes, I'm done Mr Chair.
NO RE-EXAMINATION BY MS THABETHE
WITNESS EXCUSED
JUDGE POTGIETER: So it's back to Mr Mahlane.
MS REDDY: Mr Chairperson, I had no questions left for the witness. I don't know ...
JUDGE POTGIETER: Yes Mr Mahlane, you are reminded that you are still under oath.
ERNEST SIPHO MAHLANE: (s.u.o.)
MR PANDAY: Thank you Mr Chairman, if I may proceed?
CROSS-EXAMINATION BY MR PANDAY: Mr Mahlane, is it correct that you were also known as Mbambo?
MR MAHLANE: Yes.
MR PANDAY: Do you mind if I refer to you as Mr Mbambo?
MR MAHLANE: No.
MR PANDAY: Now Mr Mbambo, you testified now by saying that the applicants had approached you twice for obtaining information to commit the robbery, is that correct?
MR MAHLANE: That's correct.
MR PANDAY: Now the first time they approached you, can you recall when it was?
MR MAHLANE: I cannot recall. It was during the week, either on a Tuesday or Wednesday.
MR PANDAY: That will be clearly before the day in question when the shop was robbed?
MR MAHLANE: That's correct.
MR PANDAY: Then you went on to testify that on the day in question you had returned from work and you met them under the tree drinking beer, as I recall it.
MR MAHLANE: They were in a vehicle drinking beer.
MR PANDAY: And then you had gone home, left your parcels you had with you and returned to the shebeen to have beer.
MR MAHLANE: I spoke to them before I went home.
MR PANDAY: Yes and then I went home to drop my groceries. As I was still at home, Mkhize came and told me to hurry up. I then went to the shebeen and as I was still drinking my first beer, Philbert came in and that is when we left.
MR PANDAY: Right. So that will be the second time that you had knowledge that they needed information to rob shops in the area?
MR MAHLANE: On the second day they came to pick me up, not that they wanted information.
MR PANDAY: So would I be correct assuming that you already had prior knowledge that these guys wanted to commit a robbery?
MR MAHLANE: Yes, I did have that information.
MR PANDAY: And now when Philbert came and fetched you from the shebeen, you went with Philbert, there were no problems?
INTERPRETER: Please repeat that question.
MR PANDAY: When Philbert fetched you from the shebeen and asked you to hurry up, you went freely, there were no problems with going with Philbert?
MR MAHLANE: It was not voluntarily because he had a firearm. I knew that if I refused, I would be in trouble.
ADV SANDI: Who was doing most of the talking, if there was such a person at all amongst the applicants?
MR MAHLANE: At what point?
ADV SANDI: During all these occasions they were trying to persuade you that you accompany them to Ngonyameni. Who appeared to be the ...
MR MAHLANE: As I explained earlier, on the first occasion it was Francis Meyiwa, Ndimande and Bobs, who came to me. The person who inquired about the number of shops was Meyiwa, but it was Mr Lembede's shop that was targeted because he said he knew Mr Lembede.
MR PANDAY: Right, may I proceed? Now on the first occasion when they asked you about giving them information about the robbery, you did not want to take part, is that correct?
MR MAHLANE: That's correct.
MR PANDAY: Right. Now in the shebeen when Philbert came to you, you said he had a weapons.
JUDGE POTGIETER: Call him Ndimande, because otherwise we're all going to be confused, we're already calling him Mbambo.
MR PANDAY: Okay, sorry Mr Chair. Mr Mbambo, when Ndimande came into the shebeen and asked you to hurry up, you mentioned that he had a gun, but did he threaten you in any way with this gun?
MR MAHLANE: Even though he did not do anything, he gave me an impression that if I refuse, something was going to happen to me.
MR PANDAY: And prior, when you refused the first time, you didn't get the impression that something was going to happen to you?
MR MAHLANE: On the first occasion they inquired about the number of shops at Ngonyameni and I told them and then they said - in fact Mr Meyiwa said that he decided to target Mr Lembede's shop.
MR PANDAY: Now you say they wanted to target Mr Lembede's shop, but they did not know where Mr Lembede's shop is, correct, according to your evidence?
MR MAHLANE: Yes, they did not know the shop and they did not know the route that went through the township.
MR PANDAY: Now would I be correct in assuming that these gentlemen did not live in the Ngonyameni area?
MR MAHLANE: No.
MR PANDAY: And it was only you that would have known of Mr Lembede's shop and as to where it was?
MR MAHLANE: Yes, I know it because I used to reside there.
MR PANDAY: Right, now don't you think it's a bit strange that someone would want to rob Mr Lembede's shop, but not know where Mr Lembede's shop is?
MR MAHLANE: I first explained how many shops there were. I mentioned all the shops that were situated in Ngonyameni. They knew Mr Lembede.
MR PANDAY: Now do you know how they knew Mr Lembede?
MR MAHLANE: They were from the same rural area, Umbumbulu.
MR PANDAY: Now if they were from the same rural area, wouldn't they have known? If they knew Mr Lembede, surely they'd have known at least Mr Lembede's house or his shop?
MR MAHLANE: I mentioned earlier that they knew that there was a shop, but they did not know the route to the shop and also for the fact that there were many shops in Ngonyameni.
CHAIRPERSON: Haven't we had evidence that he in fact lived in Umbumbulu?
MR PANDAY: The witness.
CHAIRPERSON: No, Lembede and that he had another shop there that had been destroyed and he was renovating?
MR PANDAY: I think that's ...(indistinct)
CHAIRPERSON: So people from Umbumbulu would have known this man who had more than one shop.
MR PANDAY: Right. Sorry Mr Mbambo, you were saying that you had to show them the shortcut to the shop.
MR MAHLANE: It was not a shortcut, but it was a route that would not take them past Isipingo because their car was not in good order.
MR PANDAY: Now, we have a situation where these people know Mr Lembede and they want to rob Mr Lembede's shop and you're the only one that knew of the shop. Now do you recall giving a statement to the police when this incident occurred?
MR MAHLANE: Yes, I do recall.
MR PANDAY: Now in your statement, you mentioned the following with regards to how you came to know of the robbery. Page 127. Now this is what you say in your statement, right. The second line from the bottom, Mr Chairman.
"I asked them what they want at Ngonyameni. Nyawuza told me that they were going for money at a certain shop."
Now this was when you were already in the car. You were leaving for Ngonyameni, is that correct?
MR MAHLANE: Yes.
MR PANDAY: Now before this, you were giving us a different version. According to your version today, you knew of the robbery before you left for Ngonyameni.
MR MAHLANE: I had to start at the beginning when I related my story here, that is when they questioned me the first instant on the shops, so that when they came to me and we were leaving for Ngonyameni on Friday and I was given a balaclava in the car, I asked them what we were going to do in Ngonyameni and that is when they informed me of their intention.
MR PANDAY: Mr Mbambo, I asked you clearly about the two occasions and your knowledge of there being a robbery. I asked you that specifically because it was a direct contradiction in your statement. In your statement you attempted to distance yourself from this incident and today you are actually telling us that you knew that there was going to be a robbery.
MR MAHLANE: If I was distancing myself, I would not have been arrested, but that was not the case.
MR PANDAY: Yes, you were arrested and you stood trial, isn't that correct, Mr Mbambo?
MR MAHLANE: That's correct.
MR PANDAY: And you were acquitted in your trial?
MR MAHLANE: Yes, I stood trial until the end and at the end of the trial, I was acquitted.
MR PANDAY: Yes. What was your defence in your matter at the trial?
MR MAHLANE: My defence? I just responded to questions that were put to me.
MR PANDAY: No, you raised a defence. Did you not tell the Court that you were forced and you were under duress in this matter?
MR MAHLANE: Yes, I did explain that in Court and another witness also did the same.
MR PANDAY: So you did not just answer questions, you tried to show why you were innocent in this matter.
MR MAHLANE: Yes, I was innocent because I had no intention. I was from work.
MR PANDAY: Yes, what else? You say you had no intention. So you are not innocent because you were not forced?
MR MAHLANE: I was forced.
MR PANDAY: Yes. What other sort of force did these applicants use on you?
MR MAHLANE: I explained earlier on how dangerous these persons were, so when this happened, I was under the impression that I would also be in trouble. I saw that they were carrying firearms.
MR PANDAY: And before this, did they in any way threaten you or force you, hit you?
MR MAHLANE: No, not at the time.
MR PANDAY: Did they hit you any time, or at any time?
MR MAHLANE: I was once assaulted although for a different incident.
MR PANDAY: Yes. By whom were you assaulted for a different incident?
MR MAHLANE: It was Mr Mthambo and his committee including Mr Nyawuza and his kangaroo court.
MR PANDAY: ... Mr Nyawuza you're referring to?
MR MAHLANE: Nkosinati's father.
MR PANDAY: Yes and wasn't that assault as a result of a disciplinary measure for something you had done to a person with the name of Biela?
MR MAHLANE: That was correct.
MR PANDAY: Now on page 79 of the judgment of the original bundle, at line 10, the line thereafter, line 11, the Judge makes reference to
"As accused number one did with receiving lashing that caused him to lose consciousness."
Now is this the lashing you received for Biela?
MR MAHLANE: That's correct.
MR PANDAY: Now were you trying in Court at that time to give the Judge the impression that the applicants had lashed you?
MR MAHLANE: I was trying to impress on the Judge that there was no relation between myself and them. Whatever I had done was out of coercion.
MR PANDAY: Yes. Weren't you also trying to impress upon the Judge by saying this lashing was part of the coercion?
MR MAHLANE: Yes, I was also afraid. I was still afraid because of that horrible experience.
MR PANDAY: Yes, but isn't it correct that horrible experience was as a result of Mr Mthambo's actions?
MR MAHLANE: No, he was not alone, he was with his committee because when I was fetched, it was more than fifty people who did so and I was given about 200 lashes until I lost consciousness.
MR PANDAY: Sorry, you refer to a committee, what kind of a committee was this? Did it have a name?
MR MAHLANE: I do not know, but it was a group of people that were with Mr Mthambo, that's why I call them a committee.
MR PANDAY: Now, is it correct when you were arrested, you, Elijah Nyawuza, Philbert Ndimande, Francis Meyiwa and Emanuel Nkosinati Nyawuza were arrested for this offence.
MR MAHLANE: When I was arrested it was Philbert who came with the police from Pietermaritzburg, I do not know how the others were arrested.
MR PANDAY: And when you appeared in Court, you appeared in Court with Ndimande and Meyiwa?
MR MAHLANE: Please repeat that.
MR PANDAY: When you appeared in Court for your case, you appeared, Ndimande appeared and Meyiwa?
MR MAHLANE: I think that's correct.
MR PANDAY: That is why I say, when you talk about lashing on page 79, you are implicating Ndimande and Meyiwa and the rest of them. Do you care to answer that Mr Mbambo?
MR MAHLANE: I did not hear the question.
MR PANDAY: On page 79 when you wanted the Court to believe that you were forced to commit this offence and you received lashings, you wanted the Court to believe that the other accused had actually forced you.
CHAIRPERSON: It does not say in the judgment that he received lashings on this occasion.
MR PANDAY: Not on this occasion when the robbery was committed Mr Chairman.
CHAIRPERSON: No.
MR PANDAY: I accept that.
MS REDDY: Mr Chairperson, could I just ask my learned colleague what's the significance in this line of questioning?
MR PANDAY: That we're trying to show, Mr Chairman, that the applicant is actually lying before the Commission today, the witness, he's already lied on his version about his knowledge of the robbery, he's tried to distance himself from the outset of this matter and as such, he's not too credible before this Committee.
MS REDDY: So in what sense does the lashing have any perspective to this application?
MR PANDAY: The witness was creating a background in Court as to justifying the defence that he raised of duress and goes on talking about his experiences in relation to the accused. May I proceed, Mr Chairman?
CHAIRPERSON: It appears to me, reading the judgment, that the Judge was referring to the general conditions existing in those troubled times and not suggesting that the pressure was put on the accused, on the witness by these people. That was the type of pressure people were under in the townships at the time.
MR PANDAY: I stand to be corrected Mr Chairman.
MS REDDY: Mr Chairperson, probably my learned colleague could rephrase that question and we if may get to the end of this line of questioning.
MR PANDAY: Now, Mr Mbambo, did you plan this robbery in any way?
MR MAHLANE: As I stated earlier on, I had no intentions of committing robbery because I was employed and I was well-paid.
MR PANDAY: Now Mr Joshua Cele that say here, the investigator, he's deposed to an affidavit where he mentions that you and the applicants had pre-planned to rob the deceased's shop. Do you have any idea how he would get such information?
MR MAHLANE: Perhaps he should explain it because I do not know about it.
ADV SANDI: But didn't it - wasn't it clear from the evidence of Mr Cele that he was actually talking hearsay?
MR PANDAY: I concede that Mr Chairman, my apologies. Now just a few aspects I was confused about. Now you mentioned that you were walking back and you saw the car drive past fast and you jumped in. Where were you walking from when you all had gone to Mr Lembede's shop?
MR MAHLANE: It was at the time when they had gone into the shop and thereafter I heard gunshots. Nyawuza then drove closer to the shop and I went on foot along the road and they picked me up as I was walking along that road.
MR PANDAY: You see from the way I understand how you portray this incident is that you all went to the area where the shop was, the car stopped and one would have had to point the shop out. Would I be correct in assuming that?
MR MAHLANE: Yes.
MR PANDAY: Would I be also correct that you walked with the four others to the shop to show them the shop?
MR MAHLANE: No, I did not go into the shop, I only left them at the corner where the car was parked and I would not have gone to the show them somebody they knew.
MR PANDAY: Now where were you walking back to? If the car stopped, where were you going to walk back to?
MR MAHLANE: I wanted to get away, move away from the area because I heard shots going off.
MR PANDAY: Move away to which area? According to the evidence ...(intervention)
MR MAHLANE: I was going back.
MR PANDAY: To where? To your home?
MR MAHLANE: Yes, because at that time I did not know who was killing who.
MR PANDAY: Now, we were given to understand this area is about plus minus and hour's drive from Ngonyameni, from where the applicants lived and where Ngonyameni is, is plus minus an hour's drive. You were going to walk back?
MR MAHLANE: As I explained before, I was born and raised in the Ngonyameni area. My home is there, it's only my house that is at Nzamane.
MR PANDAY: Now did Mr Elijah not try and stop you from leaving the vehicle?
MR MAHLANE: I was not inside the vehicle, I was standing outside.
MR PANDAY: You were standing outside?
MR MAHLANE: Yes.
MR PANDAY: Right. Now you were standing outside, was the vehicle next to you when you were standing outside?
MR MAHLANE: I was leaning against it, yes.
MR PANDAY: Yes. Now is it correct that the gunshots went off when you heard it, when you heard the gunshots, you would have been still next to the motor vehicle?
MR MAHLANE: Yes, I was leaning against the vehicle and as Mr Nyawuza drove near to the shop, I went along the road, going back.
MR PANDAY: But why didn't you just jump in the car? You were at the car, where were you walking back from? You seem to be confusing your evidence.
MR MAHLANE: It just happened that I was standing outside.
MR PANDAY: Right. Now did Mr Nyawuza not stop you and ask you why you were walking away?
MR MAHLANE: No.
MR PANDAY: But yet you say to this Commission that you were forced and taken?
MR MAHLANE: I had completed the task that I had been asked to do. I had pointed out the shop to them.
MR PANDAY: So was your task to point out the shop and then walk back to where you lived?
MR MAHLANE: No, that's not what I said. I said, I had completed my task. What else would they have to force me to do because ultimately I returned with them at Nzamane and they dropped me off at Mangazi and said they were going to Ndwedwe.
MR PANDAY: Now, you see, all of the applicants' versions are actually quite straightforward. They received information from you, or rather Mr Mthambo received information from you that Mr Lembede is suspected of selling weapons or supplying weapons to the IFP. That is why they went out there to kill Mr Lembede.
MR MAHLANE: I have stated before this Committee that what they state is not true and it's a blue lie.
MR PANDAY: Now Mr Nkosinati Nyawuza states that you accompanied them, you pointed out Mr Lembede and then you walked and then they walked back with you to leave, walked back with you to get the others and you went back to the car and the shooting took place and you all got in the car and returned. Now there seems to be - your evidence doesn't seem to make any sense, you were walking back. I'm going to put to you that you are lying to this Commission that you were walking back to the area that you came from, that's plus minus one hour's drive you came from.
CHAIRPERSON: I understood he said he was born and brought up there, his home was there and that that was what he was walking to.
MR PANDAY: No, I understood, Mr Chairman ...(intervention)
CHAIRPERSON: That's not one hour's drive away.
MR PANDAY: Okay, were you going back to your home in Ngonyameni when you were walking back, as you say?
MR MAHLANE: It would have depended on what transport I could get. If I got transport, I would have gone back to Nzamane. If not, I would have slept at home in Ngonyameni.
MR PANDAY: And how far was your home from the shop, from Mr Lembede's shop?
MR MAHLANE: It's a short distance. I cannot estimate it in kilometres but it's walking distance.
MR PANDAY: Now Mr Mbambo, I suspect we can go on with your version and the applicants' version and we're going to get nowhere because you have your version and they have - I will finally put it to you that, based on the applicants' version, that you are not telling the truth before this Commission, you were actually in fact part of what went on and according to them, they received information that there was a supply of arms by Mr Lembede.
MR MAHLANE: I will not comment on something I did not state and if you chose to believe them, it is up to you.
MR PANDAY: Thank you.
NO FURTHER QUESTIONS BY MR PANDAY
CROSS-EXAMINATION BY MS MOHAMMED: Thank you Mr Chairman. Mr Mbambo throughout your evidence you've said that the deceased, Mr Lembede, was your headmaster and I accept that. Would I be correct to say that he was a person that you respected and looked up to?
MR MAHLANE: Yes, I had great respect for him.
MS MOHAMMED: Now given the fact that you still had strong family ties in the Ngonyameni area, would it also be correct to say that the well-being of your principal mattered to you as a community member, as a shopkeeper in the area?
MR MAHLANE: I do not quite follow the question.
MS MOHAMMED: Mr Lembede, the deceased in this matter, he was a businessman in the area, you said you looked up to him, you respected him. Now does it also follow or is it correct to say that his well-being mattered to you?
MR MAHLANE: Yes.
MS MOHAMMED: Now it is all the applicants' version that they at no stage approached you to obtain information so that they may go there to rob the store, just so that there's no discrepancies later on. All the applicants deny having ever approached you to plan a robbery.
MR MAHLANE: I will not comment on that but I do not know what they are talking about.
MS MOHAMMED: Yes, Mr Mbambo, but I am following your version now, I'm putting this question to you on your own version, on the evidence that you have led to this Commission. Now when you say that the applicants had approached you to obtain knowledge about the Ngonyameni area and obtain details of shopkeepers and more particularly Mr Lembede's shop, did you not think it wise to contact people who were still in the Ngonyameni area and inform them as to what the applicants planned to do?
MR MAHLANE: Had I done that, perhaps I would not be alive today.
MS MOHAMMED: But why is that so? I understand - sorry, carry on.
MR MAHLANE: I have already explained that life was difficult at Nzamane because of these people. If they had known that I had gone to report them, I would also have been killed.
MS MOHAMMED: Yes, Mr Mbambo, I understand your version on the so-called reputation which the applicants had in the area. What I'm saying to you is that you had strong ties in the Ngonyameni area, you could have approached individuals in the area to tell them what had happened, or what these individuals planned to do, without them implicating you in the sense that they could have sent others to the shop to protect Mr Lembede.
MR MAHLANE: For the reason that they approached me, if it was discovered that that information had reached the people of Ngonyameni, I would be the only person that they would have suspected. I was fearing for my life.
MS MOHAMMED: Thank you Mr Mbambo. Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY MS MOHAMMED
ADV SANDI: Just on the same point. Did you not fear for your life when you testified in Court against these people?
MR MAHLANE: I only testified in the Nyawuza matter and I will be fetched by the police from home and they will take me there.
ADV SANDI: In other words you had protection?
MR MAHLANE: Yes, because even Mr Mkhize who had been a witness in the other trial had been killed by that time.
CHAIRPERSON: Mkhize had been killed?
MR MAHLANE: Yes, he was dead.
ADV SANDI: Killed by who?
MR MAHLANE: I do not know, he died at Umbogintwini.
ADV SANDI: And had Mthambo been killed by that stage as well?
MR MAHLANE: He died thereafter in Nzamane.
CHAIRPERSON: Can I interrupt here? You say you only testified in the Nyawuza matter. That was where you were a State witness, but you also testified in your own trial, didn't you?
MR MAHLANE: I was not a State witness, but I just gave evidence about my role in the whole matter.
MS THABETHE: Thank you Mr Chair.
CROSS-EXAMINATION BY MS THABETHE: Mr Mahlane, I just want to know why did the applicants approach you and ask you to show them Lembede's shop? Why you specifically?
MR MAHLANE: I was close to them and I also had knowledge of that area.
MS THABETHE: Do you know why they targeted Lembede's shop as opposed to other shops?
MR MAHLANE: I do not know about that because Francis Meyiwa said they will target Lembede's shop, I do not know how they came to that decision.
MS THABETHE: Maybe let me just rephrase this. Were there other shops at Nzamane Reserve?
MR MAHLANE: There were tuck shops.
MS THABETHE: And I'm just trying to find out how it came ...(indistinct) was the target?
INTERPRETER: Please repeat that question.
MS THABETHE: ...information about that.
JUDGE POTGIETER: Can you just repeat your question? The interpreter's asking you to repeat that question.
MS THABETHE: Oh, okay. I'm just trying to find out how it came about that Lembede was targeted as a person whose shop was going to be robbed and would I be correct to say you don't have information about that?
MR MAHLANE: Yes.
MS THABETHE: Now, did you know that the applicants were going to rob the shop when they asked you to show them Lembede's shop? Did you know that they were going there to rob the shop?
MR MAHLANE: I heard or rather I knew about it the first time because Meyiwa said he should target Lembede because he was wealthy. Another reason why - I don't know why they targeted Lembede's shop because I mentioned four shops to them that were in the Ngonyameni area. Four.
ADV SANDI: Sorry. Did they mention anything about killing Mr Lembede?
MR MAHLANE: I only heard in the car as we were coming back that Ndimande had lost his firearm in the shop and that Mr Emanuel Nkosinati had been shot, but I had no knowledge before we went there.
MS THABETHE: Now at the trial, we understand Joseph Mkhize gave the same evidence that you did, that his evidence was consistent with yours.
MR MAHLANE: Yes.
MS THABETHE: Do you know why he did this?
MR MAHLANE: I do not know because Mr Mkhize had been with them when they came to fetch me. I do not know why he said what he said in Court.
MS THABETHE: Was he - I just want to establish was he closer maybe to you than to them?
MR MAHLANE: Mkhize was my neighbour, we're very close.
MS THABETHE: No, what I'm trying to find out is, was he friends with you more than maybe he was friends with the applicants?
MR MAHLANE: Mkhize used to work in Richards Bay. He did not live with us so he would be home for instance after 6 months.
MS THABETHE: Did the applicants dispute your version and Mkhize's version in Court, do you remember?
MR MAHLANE: No, they did not dispute anything.
MS THABETHE: My last question to you is, why do you think all the applicants have given evidence that number one, you provided them with information that Lembede was an IFP who was supplying arms to the ANC and secondly that you went to Mr Mthambo to report this, whereupon Mr Mthambo gave instructions, do you know why the applicants have given this version?
MR MAHLANE: In my opinion, they want to implicate me and also that they also want to be released from prison because I do not know anything about what they are saying.
MS THABETHE: Sorry, I've just forgotten one question. Did you know Andreas Mthetwa, who stayed at the Nzamane Reserve?
MR MAHLANE: I think I've forgotten him. I know him.
MS THABETHE: Who was he?
MR MAHLANE: I do not know him to have held a position, but I know him as a comrade.
MS THABETHE: What political organisation did he belong to?
MR MAHLANE: The ANC.
MS THABETHE: Mr Chair, I should direct this to you. I asked one of our investigators to quickly make an inquiry with regard to Mthambo and Ndimande because Mr Mahlane indicated that Ndimande was the leader and not Mudau and we phoned the Isipingo Branch or the investigator did and the information they got is that Mr Mthambo and Mr Ndimande were both not leaders of the ANC.
CHAIRPERSON: Were both?
MS THABETHE: Not, but they were perceived to be because people used to come to either of them to report problems they had in the community, that's why they were perceived to be leaders in the ANC. Also Bheki Msomi was also perceived to be a leader because people also came to him to report problems they had in the community and that the actual leader was Andreas Mthetwa.
MR MAHLANE: I do not know him or perhaps I forget him. I knew Mr Ndimande but I did not regard Mthambo as the leader. I know Bheki Msomi as a comrade, not as a leader.
MS THABETHE: But would you agree that people used to come to the three of them to report problems they had in the community? No I'm referring to Mthambo, Ndimande and Msomi.
MR MAHLANE: Yes, they did.
MS THABETHE: Thank you Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
RE-EXAMINATION BY MS REDDY: What I actually need to do now is, let's just go back to the lashing. Remember my learned colleague Mr Panday asked you something concerning the lashing?
MR MAHLANE: Yes.
MS REDDY: And do you remember that you stated that you suffered at the hands of Mbambo and some committee that you had no name to?
MR MAHLANE: Hands of Mbambo?
MS REDDY: Yes.
MR PANDAY: Shouldn't it be Mr Mthambo, Mr Mbambo is the witness.
MS REDDY: It's Mr Mthambo, sorry.
INTERPRETER: Would you please repeat that?
MS REDDY: Alright. Does the witness actually recall stating to us that he suffered at the hands of Mthambo?
MR MAHLANE: Yes.
MS REDDY: Is the applicant, or was the applicant part of that Committee that you couldn't put a name to? Were the applicants part of that ...(indistinct - no sound)
INTERPRETER: Would you please repeat that? The sound just got cut off.
MS REDDY: Were the applicants part of the committee that you couldn't put a name to?
MR PANDAY: I think the representative's now leading the witness, I think. The witness has stated with full knowledge that so and so punished him and a committee. If he at any stage wanted to indicate that the applicant were part of the people that were at this, he knows them, he would have disclosed that to this Commission.
MS REDDY: Mr Chairperson, I beg to differ with that comment because according to my knowledge, my witness when I was leading him, said that he did suffer previously at the hands of the applicants and that is why he felt that if he didn't go along with them on the 21st of June 1991, then his life was in danger and I think it goes to the heart of the amnesty hearing today.
MR PANDAY: I think if my learned friend would put the incident that she refers to as opposed to leading on an unrelated incident, that would - I think if the question was better phrased that, did you suffer at the hands of the applicants and on which occasion did you suffer?
MS REDDY: The only reason I asked that question, Mr Panday was because you brought it up and it caused a little bit of confusion, so let me just ask the question and if you've got any comments you can make it after I've asked the question.
JUDGE POTGIETER: Please, can the two of you try to get reconciled?
MS REDDY: Okay, let me just proceed with the question.
JUDGE POTGIETER: Yes. Try not to lead him. Mr Panday's got a proper concern there in that regard.
MS REDDY: Alright, I concede. Mr Mbambo, did you suffer at the hands of the applicants prior to the 21st of June 1991?
MR MAHLANE: I suffered at the hands of two of the applicants and together with other people, there were many people, not all four of them.
MS REDDY: Let's just go back to the incident in question here. When you got to the area near the shop, there was a little bit of confusion relating to the facts. When you neared the shop, just tell us quickly what happened when you neared the shop.
MR MAHLANE: They alighted from the car and they started discussing about their plan. Nyawuza took a gun and gave it to Nkosinati, his son. Ndimande had his own gun. The others I couldn't see what weapons they had.
MS REDDY: Okay, just stop there. Could you just stop there? When you say they alighted from the car, did you also... When you say they alighted from the car, did you also alight the car?
MR MAHLANE: No, I didn't, I was still inside the car.
MS REDDY: At any stage did you alight the car?
MR MAHLANE: Yes, after they had gone and I leaned on the car.
MS REDDY: What happened at the point when you heard the gunshots?
MR MAHLANE: Nyawuza drove towards the shop, closer to the shop and I started walking back towards where we came from.
MS REDDY: When you mean where you came from, what are you actually telling us?
MR MAHLANE: Using the same route which we used going to the shop, I started walking back.
MS REDDY: No further questions.
NO FURTHER QUESTIONS BY MS REDDY
ADV SANDI: Just explain one thing. On the Friday these people came to you, you have made mention of beer, what was the state they were in? Were they sober, drunk, what were they like?
MR MAHLANE: No, they were not because I only saw two quarts, two bottles.
ADV SANDI: Would I be correct to understand you to say that your understanding was that you were being given an order to accompany them to Ngonyameni? You were not being given a choice, is that what you are saying?
MR MAHLANE: On that day, I had no idea that it was the day where they will want me to accompany them to Ngonyameni because they had already mentioned this to me before, but on that day I had no knowledge that they were going to ask me to go with them.
ADV SANDI: It didn't sound to you as if you were being given a choice to go or not to go with them to Ngonyameni?
MR MAHLANE: I wanted to hide away from them, but then they found me and it was clear to me that I was forced to go with them.
CHAIRPERSON: They came along and told you to hurry up they were waiting for you. They were going and you had to go with them, didn't you?
MR MAHLANE: Yes Mkhize came to my home and after that I didn't go straight with Mkhize, I went to the shebeen and whilst I was there trying to drink my beer, Philbert came and told me to go.
JUDGE POTGIETER: You couldn't even finish the beer?
MR MAHLANE: Yes, I didn't, I left it there.
MS REDDY: That's the evidence for the victims.
CHAIRPERSON: Any other evidence?
MS MOHAMMED: No.
... (NO SOUND)
MS THABETHE: Very brief.
CHAIRPERSON: Sorry, can the prisoners be kept here a bit longer?
ANSWER: ...(indistinct - no microphone)
CHAIRPERSON: At 3 o'clock?
JUDGE POTGIETER: We can release them.
CHAIRPERSON: In that case I think we could release them now, I don't think it's necessary they stay here for the address.
ANSWER: Thank you very much.
MS THABETHE: Mr Chair.
CHAIRPERSON: Do you want to take them now? Should we adjourn for a minute to let you do so?
MS THABETHE: Please, Mr Chair. I would appreciate that. A minute.
CHAIRPERSON: I would like to place on record that we have day after day started late at these hearings, but the one thing I have noticed is that at 9 o'clock every morning, the prisoners have been sitting waiting for us to start and I would like to express my thanks and appreciation for the way they have been brought here and looked after. Thank you. Will you tell your authorities that? We'll take a very short adjournment now.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: I have officially obtained certain information which I would like to share with the rest of you and that is that on page 131, in the photograph at the bottom, the shop is on the left, behind the tree. The building on the right used to be a tea room but was then unused.
MS THABETHE: There are photographs from the docket as well, if anyone is interested.
MICROPHONE TURNED OFF
ON RESUMPTION
MR PANDAY: Yes very briefly.
MR PANDAY IN ARGUMENT: Honourable Committee, the applicant, Nkosinati Emanuel Nyawuza has given his evidence and has stated that the sole reason - if my learned friend Ms Thabethe will put her mike off, thank you - has given his evidence and sets out the reasons for having attacked Mr Lembede and that was obviously on the following of orders, based on information which was relayed to their leader Mr Mthambo that Mr Lembede was involved in the selling of arms to the IFP. As to whether or not Mr Lembede was actually involved, I will submit, that ought not to impact on the applicant's version as they were simply following instructions. They were following an order by a person they considered a leader and he may not have had an official recognition with the ANC as in a membership number, but the Evidence Leader has put before this Commission, he was considered as a leader in the informal sense and more importantly, the area being an ANC supportive area.
Now, on the flip side is that we've heard evidence that would be to the contrary. The evidence of the sons, I submit, is not one that should be used in deciding as to whether their father was in fact a supplier of arms to the IFP or not, or a supporter of the IFP as the instruction received and that is what the applicant was following.
Now the Commission, or the victim later called Mr Mahlane, better known to us as Mr Mbambo. Mr Mbambo was arrested for this offence. He raised a defence of duress and was acquitted for this offence. Now Mr Mbambo on his own version before this Commission, seems to lie as opposed to the version he had given in his statement to the Isipingo police, where he first indicated that he had no knowledge of this robbery only up until they were on their way to Ngonyameni, but in the evidence before the Commission he had already had prior knowledge and as such would be attempting to mislead this Commission to believe otherwise.
Then we are left with the evidence of the grandson. Now the grandson, the only sort of damaging evidence that would come from the grandson is that he utters the words that he heard one of the applicants shout: "Where's the money? Where's the money?" No in so far as Nkosinati Emanuel Nyawuza's concerned, he has gone out there to carry out an order. These words did not come from him or in fact if they did come at all.
According to Nkosinati Nyawuza's version, I would submit that he has made up a case for amnesty and his application should be given serious thought with the view to having it granted. Thank you Mr Chairman.
JUDGE POTGIETER: Well if the grandson's version is accepted, it means that this was a robbery. ...(indistinct)
MR PANDAY: That I accept, that can be a possibility and a problem, but as, according to Mr Nyawuza's version, there was no mention of a robbery. As to whether that may have changed subsequently, I do not have that version from him.
JUDGE POTGIETER: Yes.
MR PANDAY: Based on what he put forward, that this was the sole purpose that he had gone out there with the others.
JUDGE POTGIETER: Yes, of course. And then, as you've rightly said Mr Mahlane's evidence of course also presents a difficulty in the way of the applicants.
MR PANDAY: Mr Mahlane ...(intervention)
JUDGE POTGIETER: Mbambo, because if his evidence is true of course, then this was, as the evidence of the grandson, then would indicate it appears to have been a robbery.
MR PANDAY: If one has to uphold his evidence. Thank you.
JUDGE POTGIETER: Yes, thank you.
MS MOHAMMED: Thank you Mr Chairman.
MS MOHAMMED IN ARGUMENT: I just want to add briefly to what Mr Panday has said. It's submitted that this act of killing Mr Lembede, can in fact be viewed in one of two ways. Firstly as a purely clinical, hideous crime, as portrayed in the judgment and in any criminal sense of the word or alternatively as a deep-seated, albeit a badly planned political act. It's respectfully submitted that this incident is one of the latter and not the former.
In assessing and finalising this application, it's submitted that the Committee must consider the background which existed at the time this incident took place. Although it was 1991, the ANC was unbanned by that stage, but we know people were still in want of freedom. To the people living in the areas like the applicants did, they had no real sense of freedom in the sense of what they wanted. the absence of any statement detailing the political aspects in the criminal matter is not surprising. These applicants were forced to remain as criminals and not as political activists. This Committee is well aware of other matters where people - where applicants were victims of forced criminalisation of an otherwise political act. Now the one aspect that I want to deal with is, during the course of evidence, my learned colleague Ms Reddy placed great store on the fact that no reconnaissance or intelligence work was done by any of the applicants and they merely acted on the say-so of Mthambo and Mbambo. In this respect, it's submitted that within the rank and file of ANC, operations were carried out mainly on a need-to-know basis. In fact, submissions that the ANC has put forward before the Truth Commission, does in fact bear this out. As put by one of the applicants, they were merely the foot soldiers and the fact that they were told this much about the incident, was in fact quite a lot.
ADV SANDI: Sorry, if I may just come in there. You are talking about the political context of conflict which existed in the KwaZulu Natal region at the time in question, but surely not all crimes committed during the course of that conflict automatically emanate from that political context. Isn't there an duty on the part of an applicant to show that the crime he committed, is related to the political context? Isn't there a duty for him to lay a foundation, a proper foundation for his case? We cannot simply assume that all crimes committed in KwaZulu Natal during that time, automatically had something to do with that conflict.
MS MOHAMMED: Yes, Honourable Member, I concede that not every act, not every crime which was committed during that period, is in fact a political basis. I also concede that there is a duty on the applicant to actually lay a foundation to substantiate his case. It's respectfully submitted that each of the applicants gave testimony to the effect that they subjectively believe the information that was placed before them that the deceased was in fact supplying these weapons. Of course it's up to the Committee to decide whether to accept Mbambo's evidence.
CHAIRPERSON: But the trouble is they say they collectively believed someone who denies having said it, who says: "I had no authority to say it". There has been no evidence led from anyone from there party to say yes, they would have taken instructions from him.
MS MOHAMMED: Yes, I concede that Judge, it is indeed a gap as it were in the evidence and I can understand the difficulty because in a sense it could become an insurmountable gap, however, it's submitted that the testimony of Mbambo clearly shows that there were aspects which reflect this element of his antagonism or animosity towards the applicants. He clearly said he disavowed Mthambo as a leader of the ANC in that area, after our learned colleague, the Evidence Leader, put to him that it has been confirmed that although, not in an official capacity, but Mthambo was in fact a leader of the ANC in the area, but Mr Mbambo clearly said that he didn't consider him to be a leader. In fact, I think he said Mthambo had dispossessed him of his house and things like that, so clearly there are some elements of his evidence which need to be weighed and consideration has to be given to that. I concede that. Thank you, I have nothing further.
MS REDDY IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, Members of the Committee, audience, the difficult question that we're faced with today is can we really believe the version that we have heard from the applicants.
It's common cause that I did cross-question the applicants on proof to show that they belonged to the ANC organisation.
Except for Ndimande, the rest of the applicants failed to produce such documentary proof. I find it hard to reconcile that if the applicants had played an active role in the community, to safeguard them against attacks from the IFP, that they couldn't bring one single witness to corroborate that evidence, which would have given this Committee an easy task to decide, yes, amnesty should be given to them.
Secondly, Mr Chairperson, you've heard evidence from the family of the deceased and it was quite obvious from what they informed us, that Mr Lembede, the deceased in the matter, was a feeble 62 year old man, who was a diabetic, who couldn't - who was not physically able to go from point A to B and he had to be transported to wherever he needed to go and they also stated that wherever he needed to go, he was in the company of one of the Lembede sons and they shared a close relationship and they showed us nothing or said nothing to suggest that yes, he had some connection with the IFP, or to suggest that yes, he did supply IFP with weapons.
We have also heard the evidence of Mr Mahlane who led evidence to the extent that it was not - the motive of the killing was not politically interlined, it was one of robbery and that evidence was corroborated by Mr Edgar Mukungo who gave evidence to the extent that he heard words that said: "Take the money".
The rest of the matter is left in the hands of the Committee.
MS THABETHE IN ARGUMENT: Thank you Mr Chair and Honourable Members of the Committee. I would like to submit that the crucial issues are number one, whether this act committed by the applicants was political or not and secondly, whether they have managed to make full disclosure in front of the Committee Members.
On the first issue of political motive, I would submit to the Committee that the evidence of Edgar Mukungo be favourably considered by the Committee in that he stated clearly and unequivocally that the applicant demanded money. He not only stated this in his evidence today, it's the same evidence that was written on his statement in Court and he had maintained the same evidence in Court as well, so I would submit that the Committee consider his version.
Secondly Mr Chair and Honourable Members of the Committee, as opposed to the applicants who, in Court, did not dispute Mbambo and Mkhize's version, but only later on came with this version about political motive and objective, Mbambo's evidence and that of Mkhize in so far as the motive of robbery is concerned, ties up very well with that of the grandson Mr Edgar Mukungo.
Further Mr Chair, we have heard the evidence from the deceased's sons that their father was not an IFP member, that he was busy with his business. This ties up very well, Mr Chair I must say, not only with the grandson's evidence of Mr Mukungo, but that of Mr Mahlane and to some degree that of Mr Joseph Mkhize as well.
I've heard my learned friends pointing out the negative attitude that Mr Mahlane or Mr Mbambo might have had towards the applicants but my question remains, what about Joseph Mkhize? What motive would he have had and what negative attitude would he have had to give consistent evidence as that that was given by Mbambo in Court?
Further ...(intervention)
ADV SANDI: We didn't have the benefit of getting evidence from Mkhize.
MS THABETHE: Yes, even though it was put to the applicants as to why would they think that Mr Mkhize would have the consistent version as that of Mr Mahlane. It wasn't clear why they would think so because evidently Mr Mahlane and Mkhize were not buddies or they were not friends per se, that they might have been perceived to have come up with the same version after maybe discussions. Can I proceed?
Further Mr Chair, on the issue of full disclosure, I can make one example. The applicants led the Committee to believe that they had left the shop because they had finished their job of assassinating their enemy, yet in the evidence of Mr Mukungo it became clear that they fled because Mr Mukungo had shot at one of them and that's why they decided to flee and not because they had assassinated, or rather they had fulfilled the objective that they had gone there to do.
Based on these submissions, Mr Chair, I would also leave it in the capable hands of the Committee to make the proper decision, considering my submissions. Thank you.
ADV SANDI: So do you also accept that if the evidence of Mukungo and Mbambo is accepted, then it would be cadit quaestio for the matter, that will be the end of the matter, do you accept that?
MS THABETHE: I accept that.
ADV SANDI: I'm not saying that is the decision we are going to take at the end of the day, I'm just asking.
MS THABETHE: I accept that. Thank you Mr Chair and Honourable Members of the Committee that concludes.
CHAIRPERSON: One point I would like ...(mike turned off) One point I want to raise is that if there was, and I'm now going on evidence we heard at other hearings, which was very often to the effect that the ANC was desperately short of firearms because the IFP had semi-official or official forces, if this man was thought to be a supplier of firearms and it was an ANC act against him, wouldn't they, despite the fact that the firearms might be at home, have been more likely to have gone there so that they could not only do away with the deceased but obtain possession of whatever firearms might be available?
MS REDDY: Mr Chairperson, be that as it may, I understand what you said to me on the onset, but there was no evidence led by the applicants to suggest that that was the situation. The evidence, to my knowledge, was that Mr Lembede was supplying arms to the IFP, but they didn't tell us anything to suggest even remotely that there were guns that Mr Lembede had in his possession and they wanted to retrieve for their political reasons.
CHAIRPERSON: No, but if they wanted to kill him, it would probably be safer to kill him at home than in a crowded shop and you had the additional possible benefit, and I put it no higher than that, of perhaps getting some arms.
MS THABETHE: Mr Chair, may I respond as well to that? I think from previous hearings, especially regarding the ANC members, especially in KwaZulu Natal where most IFP members have claimed - or it's been alleged that they used to get firearms from like let's say the police and some other people, it would have made sense for them as ANC members not only to kill or assassinate the person in question, but also to try and recover those firearms, because as we know from before or the evidence before, ANC were always you know short of firearms and they could have made use. If they had lots of firearms, they could have sold them maybe, I don't know.
JUDGE POTGIETER: Yes, because the sons - they kill the father, but the sons can continue distributing the firearms.
MIKE TURNED OFF - NO FURTHER RECORDING ON TAPE
