Amnesty Hearings

CHAIRPERSON: Please be seated, we want to start proceedings. For purposes of the record, today is Thursday, the 3rd of June 1999. This is a hearing of the Amnesty Committee, sitting at Telkom Park in Pretoria. The panel consists of myself, Denzil Potgieter, presiding, together with Advocates Gcabashe and De Jager. We will proceed to hear the first matter which is the amnesty application of Velaphi Makhaye, amnesty reference AM1099/96 (sic). Just before I ask you to put yourselves on record, just for the purposes of the public, in order to explain the translation devices that you have, if you want to listen to the evidence and the proceedings in English, you have to turn the headset, the wheel on the headset where there is written "channel" to channel 2, that will give you English, channel 3 will give you Zulu and channel 4 would give you Sotho. You can listen to the proceedings either in English, channel 2, Zulu, channel 3 or Sotho, channel 4. Mr Claassen, do you want to put yourself on record?

MR CLAASSEN: Thank you Mr Chairman, my name is Dawie Claassen, an Attorney from Pretoria, representing the applicant Mr Velaphi Makhaye today.

CHAIRPERSON: Thank you. Ms Mtanga?

MS MTANGA: Thank you Chairperson, I am Lulama Mtanga, the Evidence Leader of the Truth Commission, I will be assisting the victims in this matter. Thank you.

CHAIRPERSON: Thank you Ms Mtanga. Mr Claassen, do you want your client to be sworn in?

MR CLAASSEN: I would appreciate that Mr Chairman.

CHAIRPERSON: Mr Makhaye, do you hear the translation?

MR MAKHAYE: Yes.

CHAIRPERSON: I am going to ask you to stand because you must take the oath. Are your full names Velaphi Makhaye?

MR MAKHAYE: Yes, those are my full names.

VELAPHI MAKHAYE: (sworn states)

CHAIRPERSON: Thank you, please sit down. Yes, Mr Claassen.

EXAMINATION BY MR CLAASSEN: Thank you Mr Chairman. Mr Makhaye, you are the applicant today in an amnesty application here today for an incident which occurred on the 30th of April 1992, is that correct?

MR MAKHAYE: That is correct.

MR CLAASSEN: Can you just very, very briefly tell the Committee, on the day of the particular incident, the 30th of April, what exactly led to this particular commission of the crime?

MR MAKHAYE: It was in May 1992, there was fighting going on between the members of the IFP and the ANC and this was between the residents of the township at Dube Hostel, there were members of the IFP. What transpired was that there were members of the IFP who were killed as this violence was going on. They were dying continuously and we were trying to involve the Police hoping that they would help us as leaders in that area. We also consulted the leaders of the IFP Youth, but it turned out that we were just wasting our time so that we had to take steps because our members were being killed. We then took it upon ourselves to go and launch attacks because they were attacking us with all assortments of weapons, handgrenades, shotguns, etc. That aggrieved us such that we decided to take steps to attack, but on the attack itself, or should I say this attack was not necessarily targeting this specific house. The intention rather was to attack whoever we came across in the street, especially if the person was a member of the ANC or just a resident in the township. It happened that day that as we were walking in the street, we saw ...

CHAIRPERSON: Mr Makhaye, sorry, can I just interrupt you. You must tell us the whole story and we must hear the story and we must write down notes here of what you are telling us. As you are speaking, the Interpreter over there is interpreting every word that you are saying to us and to the people listening in there, so I must ask you to go a bit slower so that the Interpreter can keep up with you and we can hear everything that you say so that we can make a note of it and so that we can follow exactly what you are saying. If you go too fast, then it becomes very difficult for us to listen to and make a note of everything that you are saying. I am going to ask you to go just a bit slower, okay, do you understand?

MR MAKHAYE: Yes, I will try.

CHAIRPERSON: All right.

MR MAKHAYE: I will try.

CHAIRPERSON: You were telling us that it wasn't your intention to attack this specific house, all right? Take it from there.

MR MAKHAYE: That is correct. Can I continue?

CHAIRPERSON: Yes, please continue.

MR MAKHAYE: It was not our intention to attack that specific house, our intention was to attack whoever we came across in the street, especially if the person was a member of the ANC and as we were walking in the street, as we were walking in the street, we saw one ANC comrade. I think he was on the premises of the homestead. We got into the homestead with the people in my company and when we got there, we did not say a word. We drew our firearms and we started firing shots. I knew this person as Debogo but later on I discovered that his full names were Lefa.

ADV DE JAGER: Mr Claassen, could you kindly try and slow him down a bit?

MR CLAASSEN: Thank you, I will do so.

MR MAKHAYE: I knew this person as Debogo, that is the one person that I knew as being a member of the ANC. The people in my company also knew him as a member of the ANC. We did not know the others. We then fired shots and shots were exchanged and some people among their group also fired shots at us, for example Mandla Mqunu who was our member, also died in the incident. I also got shot in the leg on that day. I then left or should I say I was then taken to Baragwanath hospital after which the Police came to guard me and a charge was laid against me. I saw Mandla Mqunu for the last time that day, I only heard the following day from my fellow members and the Police, that he had died. The conflict that was between ourselves and our fellow brothers from the township, and the general residents of the township, was so tense such that we were not able to put the situation under control, not even the leaders themselves.

MR CLAASSEN: Mr Makhaye, just before this particular incident that you are referring to, where were you living at that stage?

MR MAKHAYE: Dube hostel, but then I did stay in the township earlier on, I think it was around the 1980's.

MR CLAASSEN: Why did you decide to move to Dube hostel?

MR MAKHAYE: My elder brother was staying in Dube and as I used to visit, I used to go to Dube hostel where he was. The reason why I left the township for the hostel was that there was no one place that I was comfortable about. I did not have the financial muscle to pay the rent in the township so I moved to the hostel.

MR CLAASSEN: Mr Makhaye, during the time of the incident in 1992, were you affiliated or a member of any political party?

MR MAKHAYE: I was a member of the IFP, a fully fledged member and I was also a leader of the youth at Dube hostel.

MR CLAASSEN: If you say you were also a leader of the youth, in which capacity? You were a leader in which things?

MR MAKHAYE: I was a member of the Disciplinary Committee.

MR CLAASSEN: Mr Makhaye, the time immediate preceding the incident, you said that there were an ongoing struggle between yourselves and the ANC, what was the situation like in Dube hostel and the surrounding neighbourhood?

MR MAKHAYE: The situation was out of control, we were not able to move freely, we could not move freely to the township, we could not even go to the shops which were in the township.

MR CLAASSEN: If you refer to "we", what do you mean by that and why could you not go to the township?

MR MAKHAYE: I am referring to myself and all the members of the IFP.

MR CLAASSEN: Mr Makhaye, what prohibited you from entering the township or going to the township?

MR MAKHAYE: We were prohibited because there was fighting going on and we were known to be members of the IFP and as this violence was going on, we too were also regarded as persona non grata.

MR CLAASSEN: Mr Makhaye, what was the prevalent political sentiment in Dube hostel at the time?

MR MAKHAYE: The situation is getting better, it is no longer the same as before.

MR CLAASSEN: At the time of the incident at Dube hostel, which political party lived, the people living in Dube hostel, which political party did they support?

MR MAKHAYE: All of them supported the IFP.

MR CLAASSEN: And the surrounding township of Meadowlands, what was the situation there?

MR MAKHAYE: Most of the people in the township supported the ANC, but then or should I say there were other residents who were members of the IFP who resided in the township as well.

MR CLAASSEN: Mr Makhaye, was there any way of distinguishing between the supporters and where they lived in the township?

MR MAKHAYE: Will you please repeat the question?

MR CLAASSEN: You said that there were also IFP supporters living inside the township, was there any way of distinguishing between which were IFP and which were ANC and where they lived in the townships?

MR MAKHAYE: Yes, it was easy to distinguish because we knew the houses of the members of the IFP, we used to visit them given a chance.

MR CLAASSEN: Mr Makhaye, at the day of the incident, you stated in your testimony in chief just now, you stated that there was an incident that morning and you used the term "we decided to take action because it could no longer be tolerated." Who are the "we" that you are referring to?

MR MAKHAYE: The first one I am referring to is my fellow brother, Petrus Hlongwane, David Gumede as well as comrade Mandla Mqunu, the deceased, the one who died on that day. Another one is Jeffrey Mkhize, he too also died, even though he did not die on the day of the incident, he died in 1993, he was shot by the ANC members at Meadowlands and apparently they had attended a rally at Mzimhlope.

MR CLAASSEN: Mr Makhaye, the people that you have just described, were they also members of the IFP?

MR MAKHAYE: Yes, they were fully fledged members of the IFP.

MR CLAASSEN: What exactly did you decide to do?

MR MAKHAYE: We decided that we had come to realise that we were being attacked, we were being attacked by people using handgrenades and firearms. There was nothing else we could do except for us to get together, sit down and decide because our members were dying continuously.

MR CLAASSEN: Mr Makhaye, when you say that "we sat down to decide what to do", were there any other leaders of the IFP involved in this decision that you took?

MR MAKHAYE: No, there were no other leaders except for ourselves, because we too had the authority to make such decisions, we were leaders at the time.

MR CLAASSEN: Mr Makhaye, you referred to the fact that "we were leaders", the other people you mentioned Mr Gumede, Mkhize and Mqunu, Hlongwane, what were their standing within the IFP, were they also leaders?

MR MAKHAYE: Yes, they were leaders, especially Petrus Hlongwane was Secretary at the time. He was Secretary of the IFP Youth, Gumede was the Chairperson of the Youth at the time.

MR CLAASSEN: And the others?

MR MAKHAYE: Comrade Jeffrey Mkhize was Deputy to Gumede. Comrade Mandla Mqunu was also a member of this additional committee for the Youth.

MR CLAASSEN: Mr Makhaye, was there an order given by anyone to commit the attack that you then decided on?

MR MAKHAYE: I do not quite understand, would you please repeat?

MR CLAASSEN: You have just said that you had no further choice, "we sat down and we decided to take action", was this decision reached by the people together there or was there an order given by someone else to do this attack?

MR MAKHAYE: We collectively ordered that the attack should be carried out.

MR CLAASSEN: Mr Makhaye, what did you hope to achieve by doing this attack?

MR MAKHAYE: This or should I say, this would bring about great relief because our members were dying and we were very aggrieved, we wanted to do something because we were under constant attack so that we decided to take steps to right the wrong.

MR CLAASSEN: Mr Makhaye, who did you believe would benefit from your actions?

MR MAKHAYE: We were going to benefit and our organisation was going to benefit as well, also leaders within the movement itself, or the organisation itself.

MR CLAASSEN: Mr Makhaye, you then went to Zone 6 of Meadowlands, what made you decide to go to that specific part of Meadowlands?

MR MAKHAYE: As I have explained earlier on that it is not that the intention was to specifically target that Zone or that particular house, but I should say that the intention was that if we came across members of the ANC in the street, we would shoot them even if we did not reach the area that we finally went to.

MR CLAASSEN: Mr Makhaye, you said that you came across a person known to you as Debogo, which only later you came to know that the real name was Sammy Ndlovu, that person was known to you. In which capacity and why did you decide to attack when you saw him?

MR MAKHAYE: We shot him because we had seen him before, we had a chance earlier on or should I say before the violence itself, we were able to go to the township, we used to see him in the company of the ANC comrades. These were the comrades who were responsible for the dying of many IFP members.

MR CLAASSEN: Mr Makhaye, you said that shots were then exchanged between yourselves and other people, of the other people which you then shot at, were any of them known to you?

MR MAKHAYE: No, I did not know them except for this one particular Debogo.

MR CLAASSEN: Mr Makhaye, the particular house where this shooting occurred, the people who lived there, were they known to you?

MR MAKHAYE: No, I did not.

MR CLAASSEN: Mr Makhaye, just to get back, you said that you believed that the IFP would benefit from your action, why do you say that?

MR MAKHAYE: I am saying this because there was this violence during which members of the IFP were killed. I knew from the depth of my heart as a member of the IFP, as well as did other members or leaders of the IFP know, that we will be pleased to avenge the death of our fellow members, there was nothing else to do except for launching an attack.

MR CLAASSEN: Mr Makhaye, did you personally stand to gain anything, was there any benefit for you in this attack?

MR MAKHAYE: Yes, I would benefit because it was very sad for me to see members of the IFP being killed.

MR CLAASSEN: Mr Makhaye, did - and how do you feel today about what had happened there?

MR MAKHAYE: I feel bad because I have come to realise that the incident or the deed did not take me anywhere. I had thought that shooting and killing would better the situation, not knowing that this would bring me here.

MR CLAASSEN: Mr Makhaye, your justification for what had happened there, did you have any choice?

MR MAKHAYE: It was not easy to think about choices.

MR CLAASSEN: Thank you Mr Chairman, that will be all.

NO FURTHER QUESTIONS BY MR CLAASSEN CHAIRPERSON: Thank you Mr Claassen. We will adjourn for 15 minutes. Ms Mtanga, will you attend to the question that you raised before about the victims?

MS MTANGA: Yes Chairperson, I will do so.

COMMITTEE ADJOURNS

VELAPHI MAKHAYE: (still under oath)

CHAIRPERSON: Ms Mtanga, have you got any questions?

CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson, I've got a few questions. Mr Makhaye, in your application, that is your amnesty application, you stated that you were given orders by Themba Khosa and in your evidence today you testified that your orders came from you as a group, it was a collective decision that you should go and attack the township residents, what is the exact position?

MR MAKHAYE: There is one part that I do not understand, the inclusion of Themba Khosa, will you please indicate to me whether that came from my statement or did I say that personally.

MS MTANGA: On page 3 of the Bundle, that is paragraph 11(b) of your amnesty application, you were asked who gave you orders to carry out this offence and you wrote there Themba Khosa gave you the orders.

MR MAKHAYE: When did I say that, did I say that here as I was rendering my testimony?

MS MTANGA: It is on page 3 of your amnesty application, Mr Makhaye.

MR MAKHAYE: I would like to clarify this. By mentioning Themba Khosa's name, I did not necessarily mean that he personally ordered that the attack be carried out, I was simply giving an example that he for example as a leader, would if we were being attacked by the ANC, he would sometimes say to us that we should protect ourselves, not that he ordered that we should go out and attack on that day.

MS MTANGA: Mr Makhaye, I don't understand your answer, you are applying for a specific offence here, the attack of the people at Meadowlands and you were asked who gave you that order to attack those people and you said it was Themba Khosa, so what example are you talking about?

MR MAKHAYE: My sister, I do not also understand your explanation, I think I explained clearly that for example if a decision was to be taken, we had a responsibility as leaders to make a decision. I only gave an example by referring to Themba Khosa that in instances where some decisions had to be taken, Themba Khosa for example, himself, would also come up with a decision that something be done.

MS MTANGA: Did Themba Khosa give you orders to attack the Meadowlands people?

MR MAKHAYE: No, as I have explained, not.

MS MTANGA: According to the families who have attended this hearing today, the area that is Zone 4, where you carried out the attack is very, very far from the hostel where you lived. Unfortunately we don't have a map so we cannot furnish the Committee with this information, why did you attack Zone 4 instead of the houses nearby the hostel? Why did you drive all the way or come all the way to attack Zone 4, instead of the houses that were nearby the hostel?

MR MAKHAYE: The reason was that this area was marred by violence, not anyone could walk freely in the streets. For example you just referred to the distance from the hostel to Zone 4, this is not a very long distance, such that one would say it is far away. The hostel is further down to the township and this is Zone 4, further up.

ADV GCABASHE : Can I just get a bit of clarity on this, Mr Makhaye, Dube hostel - just tell me where exactly is that? I know where Nancefield hostel is, I know where the hostel at Mzimhlope is and I know where Meadowlands is, now having given you those three points, just give me an idea as to where Dube hostel is.

MR MAKHAYE: It is opposite Maponya Shopping Complex and the Dube station.

ADV GCABASHE : I am with you, I know where that is.

MS MTANGA: Then tell me where exactly is Zone 4 in relation to that, Meadowlands? How long did it take you to leave the hostel and get to this particular house at Zone 4?

MR MAKHAYE: From the Dube hostel to Zone 4, the distance would be about five minutes' walking distance, but to explain I would say that the place that we attacked, is further up because we had quite entered the township to a certain extent, we were not yet deep into the township, but yes, we had entered the township, that is where we attacked this house.

ADV GCABASHE : Just clarify this for me, you are saying you walked from the hostel to this particular house and it took you about five minutes to get there, is this what you are saying?

MR MAKHAYE: I am trying to say that for example a person my age, would take about five minutes from the hostel to the place because these places are next to each other. I would also say that I am not in a position to give you an estimation of the metres from the hostel to the house, I cannot estimate, but it is not a long distance from the hostel, you could take about five minutes walking.

ADV GCABASHE : Now, on the one side of Dube hostel you have the Dube township obviously and then on the other side, it is Meadowlands, is that right?

MR MAKHAYE: Yes, that is correct.

ADV GCABASHE : What Zone is that, that Meadowlands Zone, the nearest one to the hostel, Zone what?

MR MAKHAYE: There are two Zones, it is Dube and Zone 4, Zone 5 as well as Zone 6. These areas are surrounding the hostel.

ADV GCABASHE : Are you saying the Zone nearest to the hostel is Zone 4?

MR MAKHAYE: Yes, Zone 4 as well as Zone 5, the two of them.

ADV GCABASHE : So surrounding the hostel, you've got Meadowlands, Zone 4 and 5, you've got Dube and you've got Pefeni, quite close as well, right?

MR MAKHAYE: Yes, Pefeni is a little bit further on the other side of the railroad. It is not as close as the other two Zones, Zone 4 and Zone 5.

ADV GCABASHE : But it is also about five minutes' walk, the way you walk, it would also be about five minutes' walk from the hostel?

MR MAKHAYE: Yes, it could be ten or more.

ADV GCABASHE : Okay, I have a better idea as to exactly where it was, thank you Ms Mtanga.

MS MTANGA: Thank you Chairperson for your assistance. My understanding of your answers to the lady Chairperson's questions, are you saying that the first Zone that you get into when you leave the township, if you were to go to Meadowlands, you would go, the first Zone you go into is Zone 4, is that my understanding?

MR MAKHAYE: That is correct.

MS MTANGA: And you had said in your evidence that your attack on Zone 4 people was as a result of an attack, of an earlier attack by ANC people at the hostel, is that so?

MR MAKHAYE: That is correct.

MS MTANGA: Did that attack take place on the same day?

MR MAKHAYE: Not on the same day, but they had attacked us the previous day.

MS MTANGA: How did you know where the attackers, where the attackers came from, how did you know where they came from?

MR MAKHAYE: They were residents in the township, they were members of the ANC. We, hostel dwellers could tell if these people were members of the ANC. On trying to fight back, we would see where they ran to as they were fleeing from our attack.

MS MTANGA: Are you implying that the people who had attacked you, ran to Meadowlands?

MR MAKHAYE: I am trying to explain that they fled to Zone 4, Meadowlands.

MS MTANGA: And who are the people who attacked, who were injured or killed in that attack by the ANC people?

MR MAKHAYE: There were many of them who got injured, some of them died. Apart from that day, there were other people who were being killed by the ANC because it was violence continuing all the time.

MS MTANGA: Mr Makhaye, I would like to put it to you that the families and we are talking about different families who attended that wedding, they are of the view that there was no such violence in the area, there were never attacks between the residents and the hostel, your incident was actually the first attack that came from the hostel, what do you say to this?

MR MAKHAYE: I would like to dispute that because look, I did not come here to tell lies. I came here to tell my story on what happened that day. We could not have attacked these people if there was nothing wrong.

ADV GCABASHE : Sorry, sorry Mr Makhaye, can you just help me with this please. You testified in chief that you didn't know this family or any of the people there, except for Debogo, yes?

MR MAKHAYE: Yes, that is what I said.

ADV GCABASHE : And you had no intention of attacking this particular home, yes?

MR MAKHAYE: Yes, that is what I explained.

ADV GCABASHE : The question if I recall it well was, this family have said that there were never any incidents in their particular area and that must be right, because you yourself don't know of this family or hadn't targeted anybody in this particular area, can you just help me? I don't know if you understand what I am saying, can you help me on this?

MR MAKHAYE: Something strikes me very strange, if they are saying there were no incidents of violence. I know very well that killings were going on in that area but then I must also say that if we are talking about this one particular household, I really cannot say that they were directly involved as a household in the fight against the IFP, but I am saying here that as we were walking, we saw one ANC comrade and we started firing shots in front of that house. Then what could have happened was that we could have also fired shots had we come across other people in the street.

MS MTANGA: Thank you Chairperson. Mr Makhaye, you are now testifying that you shot at those people, at the moment you saw a person that you recognised as an ANC member, that is Lefa Mtimkhulu, am I correct to say this?

MR MAKHAYE: That is correct.

MS MTANGA: Would you have attacked that house if you had not seen Lefa Mtimkhulu?

MR MAKHAYE: We would not have attacked the house because there would be no persons to attack.

MS MTANGA: You also state that you knew Lefa Mtimkhulu, that you knew him as Debogo and you also knew that he was an ANC member? Am I right?

MR MAKHAYE: Correct.

MS MTANGA: A friend of Lefa Mtimkhulu, Douglas Keswa was also injured in the incident and is now in a wheelchair, I would like to put it to you that Lefa was never a member of the ANC or of any political organisation. What you actually stated in your evidence, is a lie, what do you say to this?

MR MAKHAYE: Coming back to my brother Douglas, what he is saying is correct because I did not even know him at the time, I only got to know him during the criminal proceeding. Yes, I agree with him that maybe he was not involved in politics and he only happened maybe to be a victim as a result of circumstances.

MS MTANGA: Mr Makhaye, you are contradicting yourself, your evidence earlier was that you launched an attack on that house because you had seen Lefa Mtimkhulu whom you knew he was an ANC member, and who was always in the company of ANC people, who were responsible for attacking IFP people, and I asked you further to that, I asked you if you had not seen Mr Mtimkhulu at that house, would you have carried the attack and you said no, and now you are saying you didn't know Mr Mtimkhulu, you only heard after the incident, you only knew him after the incident and you also discovered that he was not an ANC member.

ADV DE JAGER: No, I think there is a misunderstanding. Isn't he referring to Douglas, that he only saw him after the incident and he didn't know whether Douglas was a member, but he didn't refer to Debogo?

ADV GCABASHE : Can you clarify that please Mr Makhaye, because the question was about Lefa and your response seems to talk about Keswa, just help us through that please.

MR MAKHAYE: I am referring to Douglas.

MS MTANGA: Do you maintain your position that Lefa Mtimkhulu was an ANC member despite Mr Douglas Keswa's evidence?

MR MAKHAYE: Yes, I know him.

MS MTANGA: I want to go back a bit to my questions, one of my questions earlier on, you stated that you carried out this attack to revenge the attacks on the IFP in the hostel. I think it is very important for, it is important to this Committee for you to provide us with the incidents where you had been attacked by ANC people and the people, and the names of the people who got injured and killed in those incidents because the families who come from Meadowlands, know of no violence in the area and they would like to know who are these people who were killed or injured by the residents.

MR MAKHAYE: When the ANC members attacked our fellow members were injured. Mike for one, got injured. I unfortunately don't know his surname, I only knew him as Mike and as leaders, it was not easy for us to know everybody who was resident at the hostel so that it is possible not to know the surname. There are many people who also got attacked and injured and I am not in a position to know them all, but Mike is one particular person that I can remember. I knew him very well. He came from Newcastle.

MS MTANGA: Mr Makhaye, to go a step further on my questions, the families would like to know at the time when this violence was going on, if a member of the IFP was being prosecuted for such offence and a member of the community testified in court, what was the position, how did you regard a person who came forward as a State witness, how was that person regarded by your organisation, was he regarded as an enemy to be dealt with or not?

MR MAKHAYE: I do not quite understand, would you please explain.

MS MTANGA: In the event that an IFP person is arrested and prosecuted for carrying similar attacks like you have carried here against the residents, what was the position of your organisation or yourselves as members of the IFP regarding people who testified against you in the trials, in your trials?

MR MAKHAYE: We did nothing, we are not involved in the testimony, we just listen to the testimony itself and that is it.

MS MTANGA: Did you hear about Constable Antonie Monwana at the trial, did you hear about his name at the trial?

MR MAKHAYE: I think I heard this name, yes.

MS MTANGA: Are you aware that he was a State witness at the trial, at your trial?

MR MAKHAYE: What are you saying, are you saying he was a State witness, in which way?

MS MTANGA: Constable Monwana is the person who shot at you and he was in the bakkie that went passed the house where there was a wedding and he fired shots at you and you also fired shots at them and he is the person who injured you and held you at the time the Police arrived and they found you being held by him. Do you now remember him?

MR MAKHAYE: Yes, I remember now that you have explained, but it is not true that he is the one who arrested me. He only came when I was in hospital, he came the following day, not on the day of my injury. He came to ask who I was and I explained myself, not that he arrested me.

MS MTANGA: Do you remember that he gave evidence in court at your trial?

MR MAKHAYE: Which Constable are you talking about?

MS MTANGA: Yes, the same Constable that you said you remembered.

MR MAKHAYE: The last time I saw him, I was at Baragwanath hospital, I never saw him thereafter. Mr Msimang, a CID at Protea is the one who was handling this case. He told me that this person has since disappeared. I never saw him thereafter.

MS MTANGA: Yes, Mr Makhaye, the reason that I am asking you this question, the family of Mr Monwana were hoping that you would shed some light on his disappearance. They thought you could know something since he disappeared at the time he was giving evidence at your trial against you? What do you say to this?

MR MAKHAYE: I have no knowledge as to where he disappeared to. See I was in hospital, as I have just explained I only heard from Mr Msimang who was handling the case that the person disappeared. The story is that he might have gone to Swaziland to commit some crimes, that is at least according to Msimang, I never saw this person again right up to the time when I was sentenced, I did not see him.

MS MTANGA: The other question that the families would like to know is at the time you planned this attack and maybe many others on residents, did you ever foresee or envisaged a situation, did you ever foresee a situation where you could be attacking people who were not politically affiliated, when you just carried out a random attack on the residents?

MR MAKHAYE: We did not think about that at the time, but the situation was such that these things happened as I have explained, that I know that there are some people who were innocent victims, but as we were planning these actions, it did not occur to us that such a thing could happen.

MS MTANGA: In your testimony earlier on, Mr Makhaye, you said that you knew that most of the residents were ANC members and having used the word "most", you must have known that other people were not affiliated to the ANC nor to the IFP, am I right to understand you to have meant that?

MR MAKHAYE: That is correct.

MS MTANGA: What steps did you take to ensure that people who were not politically affiliated, whom you already had in mind that there were such people, what steps did you take to make sure that they don't get killed or injured in these attacks that you carried out?

MR MAKHAYE: No steps were taken because we too were doing things such that we were bound to make many mistakes because we had lost many of our relatives, friends and comrades and when we went there armed with firearms, we really did not think about mistakes, it was only afterwards that we realised the mistakes that we have made.

MS MTANGA: Mr Makhaye, the families would like to know how can you politically justify the killings, injuries or killings of such people? How were these injuries and killings politically justified?

MR MAKHAYE: The reason why I am saying this is politically motivated, you recall that I explained earlier on that the people who resided at the township we attacked, were people most of whom were members of the ANC, even though there were others who were not members of the ANC in that township, but then the attacks that we were suffering, came from that direction and my fellow brother, Debogo for example, whom we saw that day, we saw him that day and we decided to attack knowing that he is associated with the political organisations, a political organisation, so that we could by merely looking at this whole thing, conclude that this is a politically motivated crime.

MS MTANGA: Am I understanding you correctly that you say the injuries and or the killing of the people who were there with Debogo, you are justifying their killing based on your attack on Debogo whom you believed was an ANC member?

MR MAKHAYE: Yes, it is correct. As I have explained that among the people that we found there and attacked, we saw one of the ANC members among these people and we fired shots. I would not dispute the argument that some of them were neutral, I did not know all of them. Yes, it is true and possible that some of the people could have got injured.

MS MTANGA: No further questions, Chairperson.

NO FURTHER QUESTIONS BY MS MTANGA

CHAIRPERSON: Thank you Ms Mtanga. Mr Makhaye, who were you actually attacking?

MR MAKHAYE: Do you mean in the township or at that particular household?

CHAIRPERSON: Yes, when this incident happened that you are asking amnesty for, who were you attacking?

MR MAKHAYE: As I have explained earlier on that as we were walking in the street, we saw a person whose name is Debogo and we drew our firearms and started firing shots at him. Other people also got injured, it was not easy at the time to decide instantaneously whether this person is associated with that one or not, but we launched the attack in the manner in which we did, because of the person that we saw there.

CHAIRPERSON: So were you attacking Debogo specifically?

MR MAKHAYE: Yes, that is correct.

CHAIRPERSON: How many were you?

MR MAKHAYE: There were five of us.

CHAIRPERSON: And what were you armed with?

MR MAKHAYE: We had these small firearms.

CHAIRPERSON: Each one of you?

MR MAKHAYE: They were not the same firearms, but yes we all had these small firearms.

CHAIRPERSON: Pistols?

MR MAKHAYE: Yes, I would say the sort of 9mm's.

CHAIRPERSON: Was there a wedding in this house?

MR MAKHAYE: I did not know whether there was a wedding on that day or not, but there was a tent pitched outside and we obviously concluded that something must have been happening, but not knowing exactly what. I only learnt later from the Police that a wedding was going on and we were told that we had attacked a wedding.

CHAIRPERSON: When you got to the house, could you see that there was some or other celebration going on?

MR MAKHAYE: Yes, we could see that something was happening, some sort of a celebration even though not knowing exactly what kind of a celebration it was.

CHAIRPERSON: So there were a lot of people around on the property?

MR MAKHAYE: Yes, there were many people on the premises and some were in the street.

CHAIRPERSON: Where exactly did you see Debogo?

MR MAKHAYE: He was inside the premises, just at the gate and there was a tent just next to the gate.

CHAIRPERSON: Was he amongst other people?

MR MAKHAYE: Yes, he was standing with other people there.

CHAIRPERSON: Before you started firing shots with your firearms, did you go onto the premises or what did you do, did you shoot from the street or what?

MR MAKHAYE: Some stayed in the street and others went into the homestead, myself and Mandla Mqunu went inside, we drew our firearms at the gate and we started shooting from there.

CHAIRPERSON: As you were shooting, did you go right onto the premises, you entered through the gate in other words?

MR MAKHAYE: We fired shots, proceeding towards the house and the people started fleeing to the back and some jumping the fence in front of the house.

CHAIRPERSON: Did you all five, fire roughly at the same time?

MR MAKHAYE: One person whom I saw firing at the time as myself, was Mandla Mqunu but then I was not in a position to see the ones behind me, as to whether they were shooting at the same time as I was shooting or not, because there was a lot of gunshots being fired at that time.

CHAIRPERSON: What were you aiming at when you were firing your firearm?

MR MAKHAYE: We were aiming at the people who were standing with Debogo, aiming at Debogo himself and his company.

CHAIRPERSON: When you started firing the first shots, what did Debogo and those people who were standing by him, what did they do?

MR MAKHAYE: When we fired our first shot, he tried to flee but he had been shot then. He fell and as he was falling, others fled for the gate where some of my fellow members were standing.

CHAIRPERSON: After Debogo fell, did you continue firing or what did you do?

MR MAKHAYE: After that, we left the premises and as we were walking, people started fleeing or continued fleeing and our fellow members continued firing shots at the people who were fleeing the homestead.

CHAIRPERSON: How many people were killed in this incident?

MR MAKHAYE: I learnt that two people died.

CHAIRPERSON: Were they both on the premises?

MR MAKHAYE: Yes, one of them was standing next to the gate, that was the one who got shot and ultimately died. He was not necessarily inside the premises, he was just next to the gate, almost at the street.

CHAIRPERSON: Do you know who shot him, I assume it is a male?

MR MAKHAYE: Even though I am not in a position to say who among us shot this person, but by the looks of things obviously it was our fellow members who were standing outside the gate, because when we went through the gate, this person was already lying down.

CHAIRPERSON: Was it a male person?

MR MAKHAYE: Yes.

CHAIRPERSON: As he known to you at all?

MR MAKHAYE: No, I did not know him, not personally.

CHAIRPERSON: Were there people injured as well?

MR MAKHAYE: Yes, some people got injured.

CHAIRPERSON: Do you know how many?

MR MAKHAYE: On the side from the township, three people got injured and I from this side, got injured and Mandla Mqunu, the deceased also got injured.

CHAIRPERSON: The people who lived in the township, those who got injured, were they all shot by your group?

MR MAKHAYE: They got injured as a result of my group firing shots.

CHAIRPERSON: Did you know anyone of those?

MR MAKHAYE: No.

CHAIRPERSON: Do you know what their gender was, was it only males or were they males and females in this group of three, or what?

MR MAKHAYE: It was males.

CHAIRPERSON: Can I come to this Constable Monwana, the one who testified at your trial. We have a statement from him which I want to ask you about, it appears on page, the typed version appears on page 23 of our record. Were you wearing what is referred to as a black lumber?

MR MAKHAYE: Yes.

CHAIRPERSON: And was there another person with you also wearing a black lumber?

MR MAKHAYE: Myself and comrade Mandla Mqunu had similar such jackets on.

CHAIRPERSON: After the shooting, did you and Mandla run away together?

MR MAKHAYE: We ran away and as we were running away, Mandla Mqunu got shot and I got shot. I got shot as I was trying to raise him from the ground because he had already fallen down.

CHAIRPERSON: As you were running away, you and Mandla, were you firing shots at a bakkie that was in the street as you were running?

MR MAKHAYE: Yes, we were running and shooting simultaneously because I explained that there were people who were fleeing the homestead and some of these people were in front of us and we continued shooting at the same time and that is when my fellow comrade got shot and when I tried to raise him, I also got shot.

CHAIRPERSON: So were you and Mandla firing at the people who were in front of you, who were fleeing the scene?

MR MAKHAYE: Yes, that is correct.

CHAIRPERSON: This Constable Monwana, he says that he was a passenger in a bakkie that was in the street and that after you, I assumed on what you have told us now, you and Mandla, fired shots in the direction of the bakkie, he at one stage returned the fire. Is that possible?

MR MAKHAYE: Yes, that is possible.

CHAIRPERSON: Were both you and Mandla laying somewhere in the area after you were wounded?

MR MAKHAYE: When Mandla got shot, he fell onto the ground, that was in the street, and when I ran to try and help him out, I also got shot. Then I went to a house to seek help. That is where these people called an ambulance. Mandla was left in the street.

CHAIRPERSON: Were you waiting for the ambulance at this house where you asked for help?

MR MAKHAYE: That is correct.

CHAIRPERSON: Were you inside the house, waiting inside the house?

MR MAKHAYE: Yes, I was inside the house.

CHAIRPERSON: Yes. Thank you Mr Makhaye, are there any other questions?

ADV GCABASHE : May I just take this a little further? You were only arrested in hospital, not at this house?

MR MAKHAYE: Yes, that is correct.

ADV GCABASHE : And Mandla, when did he die?

MR MAKHAYE: As I explained that when I got shot, he was laying in the street, and it was only when I was in hospital that I learnt the following morning, that he had died.

ADV GCABASHE : You recall seeing the bakkie driving towards you?

MR MAKHAYE: Which bakkie, are you talking about a Police van or just any van?

ADV GCABASHE : There is only van that has been referred to in evidence at this hearing, and that is the Police van that Monwana talks about, do you know of another van that we should know about?

MR MAKHAYE: I did not see any other van, except for the Police van that I saw when I was picked up by the ambulance next to the house in which I was waiting.

ADV GCABASHE : Before that, did you see a Police van at all?

MR MAKHAYE: No, not any other van.

ADV GCABASHE : And you say this Police van came when the ambulance came? Just repeat that for me, when did you see this Police van?

MR MAKHAYE: I saw it when I got into the ambulance.

ADV GCABASHE : Was it just parked on the road?

MR MAKHAYE: Yes, it was actually stationary just behind the ambulance and there were Police around as well.

ADV GCABASHE : I am not too sure about whether you attended trial or not, just from the documents here, it is not too clear. When Monwana was giving evidence, were you there when Monwana was giving evidence? In court, do you recall anything at all about Monwana giving evidence in court?

MR MAKHAYE: Are you referring to Antonie?

ADV GCABASHE : Yes, that is the one.

MR MAKHAYE: I indicated that I saw him for the last time when I was in hospital, I did not see him thereafter because Msimang, a CID based at Protea, was now handling the case.

ADV GCABASHE : Did any Policeman give evidence in court about this incident?

MR MAKHAYE: Yes, there is one white Policeman who testified in court.

ADV GCABASHE : Is he the only Policeman who testified in your matter?

MR MAKHAYE: Yes, he is the only one.

ADV GCABASHE : Can I come back to Debogo, in a sense I am taking you right back to the beginning of your evidence, because you said you knew Debogo. Explain to us how did you know Debogo.

MR MAKHAYE: I knew him because I used to see him in the company of ANC members, that was before violence started. There were some few members of the ANC that I knew who stayed in the township. I know them as Vanveli and Mafa, Mafa Buthelezi. These are some of the boys in whose company I used to see him.

ADV GCABASHE : Yes, but I really just want to know about Debogo, just try and be specific to how you knew Debogo. For instance, did you know where he lived? Did you see him attend ANC meetings, what made you associate him with the ANC, that is where I want you to help me, don't worry about the others, just Debogo.

MR MAKHAYE: I used to see him in the company of ANC members. These are the people who were in the forefront as comrades of the ANC in the area. This is why I am saying that I knew him before the attack.

ADV GCABASHE : You talk about in the area, where is this that you saw him, what is the area, Meadowlands, Dube, at the hostel? Yes, because I am still trying to find out when you knew Debogo and how you knew him, that is really what I am asking.

MR MAKHAYE: I used to see him when there were ANC rallies and I would see him walking to the rally with others, and they would also attend some ANC meetings.

ADV GCABASHE : Right. Now where would this be, Meadowlands, this is what I am trying to find out, where did you see him?

MR MAKHAYE: In Meadowlands.

ADV GCABASHE : Zone?

MR MAKHAYE: Zone 4.

ADV GCABASHE : How did you come to know that this person is called Debogo?

MR MAKHAYE: As I have explained that he used to be in the company of ANC members whom I knew and I would hear them calling him.

ADV GCABASHE : Now, Zone 10 Meadowlands is very far from Zone 4, isn't it?

MR MAKHAYE: Yes, Zone 4 is very far.

ADV GCABASHE : I have Debogo's home address here as Zone 10, Meadowlands and yet you say you saw him in Zone 4, because he frequented Zone 4?

MR MAKHAYE: Yes, we have to look at something here. It is possible for a person to stay as far away as that, but if there are things that requires him at another Zone, it is possible for him to walk as far as that Zone to be with those people.

ADV GCABASHE : Now, in respect of seeing people, ANC people who attacked IFP people, did you ever see Debogo amongst a group of ANC people who were attacking IFP people?

MR MAKHAYE: No.

ADV GCABASHE : The incident that you are referring to that happened the day before you went to Zone 4, Meadowlands, tell us about that incident. Were you there, did you witness it?

MR MAKHAYE: Yes, I was present personally. Even though I was not part of the group that was being attacked, but I was inside the hostel, yes.

ADV GCABASHE : Now, are you saying that you saw people come from Zone 4, the general area of Meadowlands, come across to the hostel and attack people at the hostel? I don't know, I am simply asking the question?

MR MAKHAYE: I did not see them entering the hostel and attacking people, I only saw these people fleeing at the time of which some people were already laying down, injured, next to the gate. I only saw them fleeing back into the township.

ADV GCABASHE : And you saw them fleeing towards Zone 4, is this correct?

MR MAKHAYE: Yes.

ADV GCABASHE : And you have said this was not the first incident of this kind, there had been other incidents before this?

MR MAKHAYE: I said it was not happening for the first time, there were many incidents of this nature.

ADV GCABASHE : What had the leadership decided to do about talking to the community in Zone 4 about these incidents? Just take us through that. Not your leadership, the people who were above you, unless you were in complete control of the hostels, you can explain that.

MR MAKHAYE: No steps were taken to try to meet ANC members from the township, to resolve the differences but in the event of incidents, the Police were contacted to neutralise the situation. But then the Police were failing in their duties because they were not helping us in any way.

ADV GCABASHE : And can you give us an idea as to how many incidents had occurred before this particular one, the Zone 4 one, how many incidents had occurred at Dube hostel where your people were being attacked, give us a number, five, ten?

MR MAKHAYE: It could have been three times. That is at least according to my recollection, because you know, I was not always at the hostel, I would sometimes go home or attend IFP meetings.

ADV GCABASHE : In your evidence in chief you said, and the note I have here is you hadn't targeted this specific house, but you had targeted any ANC member or person walking in the street. I recorded that correctly, didn't I?

MR MAKHAYE: Yes, that is what I said.

ADV GCABASHE : Now, how were you going to identify number one, an ANC member, that is one of your targets? What was the plan?

MR MAKHAYE: We were in the position to tell if a person was a member of the ANC because the majority of them are members and followers of the ANC, so that we could easily tell if a person was a member of the ANC.

ADV GCABASHE : Yes, but you will agree that you had PAC people, AZAPO people, IFP people and non-affiliated people living in Meadowlands, Zone 4, yes?

MR MAKHAYE: I would not dispute that, maybe I did not have knowledge about the existence of PAC members in that area, but what I am saying is that the knowledge that we had, was that the people in that area were ANC people. Yes, I cannot dispute what you are saying.

ADV GCABASHE : You see, because again I am thinking of your planning, when you sat as a small group of Youth leaders and planned this attack, how were you going to make sure that you attacked the targets you had identified, that is really what I want to know, ANC people, not other people?

MR MAKHAYE: As I explained earlier on that the people who resided in that area were ANC people, so that we knew that we would find ANC people if we went to a particular household for example. If we came across ANC people across the street, it would be very easy for us to tell that they are ANC.

ADV GCABASHE : You see, I ask you because you shot at Debogo who you say you knew was an ANC person, but you also shot at other people at that house. You did not know that they were ANC people, were they your targets?

MR MAKHAYE: It is for this reason that I stated earlier on that these people were in the company of Debogo and at the time, one was not in the position to think clearly so as to distinguish. I do not dispute that these people became victims, innocent victims, yes, that was possible.

ADV GCABASHE : You see, this is why I keep referring to the planning because what compounds the problem for me just in understanding your circumstances is, you have also said you were going to shoot any person walking in the street. I don't see how any person walking in the street, could be a target because of what others had done to you. Just help me understand why any person walking in the street, would also be a target.

MR MAKHAYE: I explained that our intention to shoot at anyone we came across in the street, was informed by our knowledge of people who were ANC members in the area. If we came across people for example before we went to the household, maybe we would not even have reached the household.

ADV GCABASHE : Are you saying that if there were people walking with one ANC person, all of them would become your targets, is this what you are saying?

MR MAKHAYE: Yes, that is how it was going to be because we would not be in a position to ask them as to what their association is, we would just draw our firearms and start shooting.

ADV GCABASHE : You see, I ask because amnesty is all about political opponents being in conflict, so it is one person killing or injuring a political opponent. This any person walking in the street, becomes a little bit of a problem for me because how do you then identify that person as a political opponent? The Act says you are fighting a political opponent, how do you then say to me that person is a political opponent when you don't really know who they are or what they are in terms of political affiliation? You see you planned this, this is why I am asking you to take us through that, just help us understand that.

MR MAKHAYE: On this question as to how we were going to distinguish between a political or a member belonging to a political party and a person not belonging to any political party, what I am saying here is that the situation at the time was such that one would not be in the position to distinguish between a member of a political party and that who is not a member of a political party and also it was possible that a member of a political party would be found in the company of a member belonging to a different political party. Yes, I agree that mistakes were made.

ADV GCABASHE : Now just again, a final question around the planning by your small group, what options did you consider in trying to resolve your problems you had with the community that was attacking you, you now as the small group, what alternatives did you consider as you were talking?

MR MAKHAYE: It was very difficult to take other steps other than what steps we took because the Police were failing us, so there were no other steps we could have taken to resolve the situation because we were compelled by the circumstances to go and attack because we had been reporting to the Police the fact that we were losing our membership, we were being killed and the Police were doing nothing about this. We had actually run out of plans. It was not even possible to go and speak to the people of these political organisations themselves. It is for this reason that we decided to come together to decide and to take actions. We were fearing for our lives and we had to do something because we were under constant attack.

ADV GCABASHE : Now you were part of the Youth movement of the IFP, you then had the senior people in the IFP, did you have any relationship with the senior people at all, in terms of advice, in terms of understanding what you could and couldn't do, just help me understand that.

MR MAKHAYE: Yes, we would discuss our concerns, we were discussing these concerns with their full knowledge that violence was going on. They were leadership with responsibility at higher positions, they were not in the position to help us on the ground so that we decided among ourselves to make use of what opportunity availed itself to try and address the situation. They could just not come down to our level to understand and appreciate our problems.

ADV GCABASHE : And you are here not talking about leadership at Dube hostel itself, but leadership at whichever local office that you would have had, yes?

MR MAKHAYE: I will give an example, I am not referring to leadership within the hostel itself, I am talking here about people such as Themba Khosa, those who are in higher positions. They had responsibilities up there, so that it was difficult for them to come down to us to give us suggestions as to what exactly we should do, so we took it upon ourselves to see how best to get out of this situation.

ADV GCABASHE : Okay, then just a final question, the incident itself happened on the 30th of April or the 30th of May? I am just looking here at your application form, it speaks of the 30th of April on page ...

MR MAKHAYE: Just to clarify that, yes, I understand what you are asking, what happened here was that this happened or should I say 30 April/May. I think it was a mistake on my part to say it happened on the 30th of April, that is why we have 30 April/May.

ADV GCABASHE : So it is actually May?

MR MAKHAYE: Yes.

ADV GCABASHE : And then just give me an indication of the time that you arrived at Zone 4, Meadowlands and saw Debogo.

MR MAKHAYE: It is very difficult. I was not looking at time at the time, I did not have a wrist watch.

ADV GCABASHE : No, just estimate really, was it morning, afternoon, evening, six in the evening, two o'clock in the afternoon, just estimate.

MR MAKHAYE: It could have been roundabout six o'clock in the evening.

ADV GCABASHE : Around six in the evening. It was just starting to get dark, would that be correct?

MR MAKHAYE: Yes, it was beginning to dusk.

ADV GCABASHE : But the lights were not on yet?

MR MAKHAYE: No, not yet. One other thing that I would like to explain here, people had now a tendency of switching off their lights because of the violence that was going on, so that people from outside or people in the street, could not see whether there were people in the house or not. This happened in the evening, yes.

ADV GCABASHE : And you saw Debogo as you were walking passed the house?

MR MAKHAYE: We saw him as we were approaching a distance almost the same as this one between myself and the lady in front of me.

ADV GCABASHE : Thank you, thank you Chair.

ADV DE JAGER: Could you kindly help me, at that stage, were the violence, had it reached such a stage that you wouldn't dare to walk in the street in an area like Zone 4?

MR MAKHAYE: You would not if you were walking alone, you could only do that if you were in a group because if you took a chance, you would not come back.

ADV DE JAGER: Was Zone 4 considered to be a no-go area for any specific political party or wasn't there no-go areas at all?

MR MAKHAYE: Yes, that was the situation, for example if you were a member of the IFP staying at Dube or a member of the ANC staying in the township, you would not be allowed to be found in a different place.

ADV DE JAGER: Weren't you afraid of going into Zone 4?

MR MAKHAYE: As I have explained earlier on that if you were going somewhere, you had to be in a group so as to be safe, but you would not do that, you would not simply venture out if you were alone, it was not safe, it was very risky.

ADV DE JAGER: And did members of different political parties flock together, for instance if you could help me, would you expect a member of for instance the IFP to attend a wedding ceremony of ANC members?

MR MAKHAYE: No, I don't believe such a thing would happen, it was not easy.

ADV DE JAGER: Would it be possible that a member of the PAC for instance, may attend a wedding of or a celebration of ANC members?

MR MAKHAYE: I wouldn't like to comment on that, because I do not know where the difference is really between the two. I don't know, I am only testifying to our position as the IFP, that according to our knowledge it was not easy for me, or us as members of the IFP, to attend weddings of ANC members.

ADV DE JAGER: When you saw Debogo there at this house, who did you suspect would be with him?

MR MAKHAYE: I concluded that he was with members of the ANC even though I did not know what they were doing there. It came to my mind that he was with members of the ANC.

ADV DE JAGER: When did you realise that you might have made a mistake?

MR MAKHAYE: (No translation)

ADV DE JAGER: This was not translated, so I don't know what he ...

INTERPRETER: He has a problem, I am trying to explain to him Chairperson.

ADV DE JAGER: Oh.

MR MAKHAYE: I only started realising now that I was preparing my amnesty application. It only transpired to me now that we were shooting at wrong people, but then at the same time, I have knowledge that it was not easy at the time to tell apart between members of the ANC and those who were not. Now that I have a chance to reflect, I am beginning to realise that many mistakes were committed, even though we were not in the position to see them as they were happening.

ADV DE JAGER: Constable Monwana says in his statement, I don't know whether the statement has been explained to you, on page 23? He says that they were driving past and you were shooting at them, they were on as he stated, a bakkie. They had taken off the canopy I believe, or I don't know, it is not clear whether they had taken off the canopy or whether they put it on, in paragraph 5. It seems as if they had taken it off because later on he says he fell off the bakkie. He says he had been wounded by you or not by you, by one of the group, I don't know whether it was in fact you or one of your co-people.

MR MAKHAYE: Shortly I would say I did not see him at the time because I did not even see the person who shot me. I also indicated that the only van that I saw was the Police van that was standing behind an ambulance that had come to pick us up. That was the van that I saw. There was no time to look around when we were running away because there were people who were fleeing right in front of us.

ADV DE JAGER: How long after you had entered this house, did this ambulance turn up?

MR MAKHAYE: Even though I cannot remember very well because I did not have a watch, you see the Baragwanath hospital is a distance away, it could have been 20 minutes or so, even though I cannot be sure.

ADV DE JAGER: And you only saw this Police van after the ambulance had already arrived?

MR MAKHAYE: Yes.

ADV DE JAGER: You don't know whether it arrived before the ambulance while you were in the house, or whether it came with the ambulance?

INTERPRETER: May you please repeat the question, he didn't hear the ...

ADV DE JAGER: You didn't know, you went into this house, did they call the ambulance, the people of the house or don't you know who called the ambulance?

MR MAKHAYE: It is the people in the house who called the ambulance.

ADV DE JAGER: And you didn't go outside to see whether the Police had already arrived at that stage?

MR MAKHAYE: I stayed inside and it was difficult for me to get outside because I was already injured.

ADV DE JAGER: Did you at any stage shoot at a person sitting or standing on a bakkie or a van?

MR MAKHAYE: I didn't shoot anyone sitting in or, inside a van and I didn't even see the van because as I have said, we were following people who were running in front of us, and shooting towards them. I mean anything in connection with the van, it didn't happen.

CHAIRPERSON: Mr Claassen, have you got any re-examination?

MR CLAASSEN: Thank you Mr Chair, no re-examination.

NO RE-EXAMINATION BY MR CLAASSEN

CHAIRPERSON: Do you intend calling any further witnesses, Mr Claassen?

MR CLAASSEN: No further witnesses Mr Chairman.

CHAIRPERSON: Is that the case for the applicant?

MR CLAASSEN: That is the case for the applicant, Mr Chair.

CHAIRPERSON: Yes, we will adjourn and reconvene at two o'clock.

WITNESS EXCUSED

COMMITTEE ADJOURNS

CHAIRPERSON: Have you got any witnesses?

MS MTANGA: I have no witnesses, Chairperson.

CHAIRPERSON: Thank you. Mr Claassen, have you got an address?

MR CLAASSEN IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, it is - the application of the applicant has now been heard, evidence was given by him what led to this incident and what preceded the actual commission of the crime for which he is then applying for amnesty. Your Worship, the accused has been found guilty by a court of law and sentenced and he is currently serving out a sentence for the particular crime.

Your Worship, if one looks at his application and what he stated under oath today, and he was also thoroughly questioned on his version of events, Your Worship, I think if one starts, Mr Chair, if one starts with the considerations when a person applies for amnesty and what the Committee should consider when such an application is brought, Your Worship, I think it is not contested as far as the involvement of politics is concerned, that the accused was a member of the IFP at the time of this particular incident.

Mr Chair, furthermore I think it is not contested, it was put to him that his version of events was that there was, if I may, almost a running battle at that stage between the IFP from Dube hostel and the surrounding township of Meadowlands and that they were at that stage in almost a warlike situation.

Mr Chair, the applicant says that he as a member of the IFP and also a Youth leader, after incidents of violence which were directed at them by people apparently from the ANC, they felt compelled to act and this also led to the commission of the crime. Mr Chair, surely it stands to be reasoned on the applicant's version itself, that that which they went out to do, if that indeed was in furtherance of the IFP or what the IFP sought at that stage, Your Worship, Mr Chair, it is true that if one looks at the Act itself and when amnesty should be considered, it is if I may from Section 20 - the offence should be associated with a political objective.

Your Worship, Mr Chair, as far as the political objective is concerned, I am of the - my humble submission that there was indeed a political motive in what occurred there. If one looks at what the Act specifically says with how it should be decided if there was indeed a political motive or not. If one looks at the context in which this particular offence occurred, I think it was also specific in an answer to a question of the Committee, I believe that the applicant answered that they had no options, they were out of options at that stage, and they felt compelled to act because they were under attack and the IFP were losing members, they were not protected by the Police, even though the order as such did not according to the version of the applicant, come from higher IFP authority, he himself, with his alleged co-perpetrators were members of authority within the IFP and amongst themselves, decided to commit these crimes.

Mr Chair, if one looks at the objective which he sought to satisfy or what objective they hoped to reach, he also said that there was no benefit for him as an individual for what they did. I think indeed it just held great risk for him, he did this exclusively in furtherance of the IFP policy and to benefit the IFP.

Mr Chair, further one should also look at the relationship between the act, the political objective and the proportionality of the act. I cannot, one cannot look passed the fact that this was a very, very serious offence and it was a very radical thing to do, but Mr Chair, given the circumstances, I am of the opinion that especially in view of what the applicant himself said, they were left with very little or no choice at that stage, but to protect themselves. Obviously the question arises was this act committed in protecting themselves, their lives or their property. The applicant expressly says that this was done in retaliation for an earlier attack, but I think this per se does not take away the political motive behind that in that he said that it was, although this appears to be a reaction, they also to some extent acted pro-actively, trying to prevent any further attacks upon themselves.

ADV GCABASHE : You see, my difficulty is that the applicant himself says that this Debogo was not involved in any incident he knows about at Dube hostel. Just to deal with Debogo, never mind all the others, where does the motive fit into that, because Debogo himself had not been involved in any attack?

MR CLAASSEN: Thank you, that is very true. Once again I would reason that if one looks at the Act itself, it says

"... the act should be by or it should be advised, planned, directed and ordered before the cut off date by a member or supporter of a publicly known political organisation or liberation movement on behalf or in support of such an organisation, in furtherance of a political struggle waged by an organisation or movement against the State or any former State or other publicly known political organisation or liberation movement."

It is true that on the face of it, it should be directed against or actions should be directed against a political party. It is also true that the applicant indeed said that Debogo himself, he never saw him involved in any acts of violence directed against the IFP.

Madam Chair, it is my submission that if one looks at the whole context of events, he said that attacks came from Section 4 specifically in Meadowlands, it was his perception, he also said I think he was a very truthful witness in the respect that he said he was not involved in the early attack but he only saw the people fleeing towards Meadowlands, Zone 4 and he saw that some of the IFP people were injured. It is my submission that even though and it is the testimony of the applicant that as far as his knowledge goes and he also exaggerated on that, or went further to say that he saw Debogo on several occasions during ANC rallies and he was of the firm opinion that Debogo was an ANC supporter, that this attack which followed the attack upon the IFP was directed at the ANC, albeit not the actual people who attacked the Dube hostel earlier.

It was my humble submission that this still should be, might fall under the ambit of a political motive in that it was directed against the ANC as such. I think the applicant also went further although he initially said that they were out to attack anyone, he later qualified that by saying that they were able to distinguish between ANC and other political supporters or specifically, he says that he is not hundred percent aware of the difference between the ANC and the PAC, but there was this definite rivalry between the ANC and the IFP and he also went further to say that it was, in a question to a member of the Committee, that it was although he not specifically said a no-go zone, it would have been very risky for people to go into certain areas if they were supporters of specific political sentiments.

Mr Chairman, as far as politics involved in all this, goes ...

ADV DE JAGER: But suppose you are quite neutral, you are not involved in politics, it may be dangerous for an IFP member to go into say Zone 4, but suppose you are quite a neutral person, not involved in politics and you are living in Zone 4, you are not bothering anybody because everybody would know you are neutral, you are not aligned to the IFP or to any political party, and you are going in and suppose you target those people.

MR CLAASSEN: That is very true and the accused also in his own words said that, or in retrospect of the whole event, he realised that people that were shot with Debogo might not have been ANC people. He merely on association with him, thought them to be members of the ANC, although he did not clearly think about the situation at that stage, they just shot indiscriminately, assuming that they might be members of the ANC, flocking together. It is quite true that there was no clear distinction, he said that they could distinguish between them, but there was no explanation given for that distinction, how it should be done, or when it would be clear who would be a supporter of which political party. Mr Chair, be that as it may, I think the main question which obviously still remains is if this attack had been aimed at someone who was not an ANC supporter and it was done as the applicant said, in the furtherance of a political objective of the IFP, if that, qualified within the Act, for amnesty. Mr Chair, I think that stands to be reasoned, it is however my submission that in this specific circumstances, it was testified by the applicant that Debogo was indeed an ANC member and that was the reason why it was decided to attack that specific house or the people who associated them with Debogo.

ADV GCABASHE : You know Mr Claassen, my recollection is that applicant's perception was that Debogo was an ANC member, but as far as everybody else who was involved in this was concerned, he didn't think they were members of the ANC, he did not know which political parties they belonged to and yes, he did shoot at them, certainly when they were fleeing. There is no association at all with the ANC. Part of my difficulty is of course in respect of these other people he shot at. He knew that they were not ANC people because his target had fallen, was either injured or dead somewhere behind him, yet, he continued to shoot at them. With what political objective in mind?

MR CLAASSEN: Thank you, that is true. I think he said he was at that stage not sure if they were politically affiliated at all. If I am correct, I think at a later stage and specifically after a question from a member of the Committee, he said that he did not think clearly about it at that stage but assumed that they were members of the ANC and in that capacity, decided to further shoot at them as they were fleeing.

Surely the question remains is this not overstepping the bounds, if there was decided to act against ANC people, if shooting at people fleeing from the scene of the crime, if that is not overstepping it? Mr Chair, it is true that this is a very serious crime, but I think all facts taken into account and the fact that this is a continuum of an action, it was not two separate events, it all took place, it was basically one incident. I think one cannot take the political objective to a point and then say that it stops there and now he is acting without the initial political objective.

ADV GCABASHE : Why not? Explain that to me, why not?

MR CLAASSEN: Thank you, it would be my humble submission that it is still a, although several people were killed over a period of time, the exact time was not exactly clear, but it obviously wasn't immediately. It is just my humble submission that the incident as such is a continuum of events. I don't think that the, and it will also be my submission that the political objective as such fell away, the applicant said they went out in retaliation for what they believed the ANC did to them, attacked Dube hostel. I think maybe the question even further, where would it all have stopped if the applicant had not been shot? I think that was perhaps a turning point, the fact that he was shot and then taken away.

CHAIRPERSON: The difficulty is Mr Claassen that it was a wedding, not a political rally, political meeting, it was a wedding and people running away is quite understandable under those circumstances and then you shoot at the people who are running off. They are guests at a wedding and they are running away, you shoot them, isn't that a difficulty?

MR CLAASSEN: Thank you Mr Chair, indeed the circumstances under which this attack occurred, as you say it was a social event, it was not a political event. There was no political flavour to it whatsoever, other than the person of Debogo which created the impression or the fact that there might have been more ANC people a that particular wedding.

Mr Chair, certainly it creates a bit of difficulty but it would be my submission that if one looks at - obviously it stands to be reasoned that if one commits an offence in furtherance of a specific political motive, should one limit yourself to a opposing political party in party circumstances or might it be enough where a person is of the perception that the act is directed against ANC supporters, be it at a political meeting or otherwise, which was this particular instance. I think the biggest question is the one of proportionality. It is, and I want to even say that it was a very serious attack, but the applicant said that they were left with no options. I think if one looks at the incidents immediately preceding the attack, they were out with the intention to further the IFP course and that they most probably tried to prevent further attacks upon themselves or stamp their authority on the surrounding community.

Mr Chair, if I may just suffice in saying that even though it was done at a wedding, I believe one might still bring it under the ambit of a political act in furthering a specific political objective. CHAIRPERSON: ... to anybody else apart from Debogo?

MR CLAASSEN: Pardon Mr Chair?

CHAIRPERSON: Does that apply to only Debogo or anybody else who was a victim?

MR CLAASSEN: Thank you Mr Chair, yes obviously if one looks subjectively at the applicant's action and what he though them to be at that stage, surely now it appears that they might not have been members of a political party.

Mr Chair I would say once again, if this is not taking it too far, that one should look at perhaps the occurrence in totality and what the applicant said why, especially I think the question was asked at who specifically he aimed and he did not hesitate in saying that Debogo and the people around him. Maybe his perception at that stage, indeed his perception were that they represented the enemy if I may, in the ANC, and they were the people who were responsible for what had happened at Dube hostel earlier.

Mr Chair, if the Committee were to accept that these were the circumstances and that it was indeed done with the express motive of furthering the political objectives of the IFP, it is my humble submission that the applicant should be indeed considered for amnesty with regard to this offence.

ADV DE JAGER: In regard to which offence?

MR CLAASSEN: It is so that the application was made specifically with reference to the murder of, the charges of murder brought against him.

ADV DE JAGER: He is applying for murder, a fight broke out at the hostel, one killed. Then he says again, one was killed. He was in fact convicted on two counts of culp and five counts of attempted murder, so that is what he is being convicted for, but let's leave alone for a moment, that he was found guilty of culp and not of murder, he had been found guilty of two counts of culp and he is applying for one person killed. Maybe another person could have been killed by one of his colleagues, he himself not actually doing the shooting or whatever it may be. I think he testified about it, but I think you should, apart from anything else, you should have a look and tell us exactly for what are you applying.

MR CLAASSEN: Thank you member of the Committee, it is indeed true that the application reads on the application form that it is for a person killed. If one looks at his testimony today, the evidence given by the applicant himself that he is only aware of Debogo, that is the person that he shot at and I think in answer to the question of Mr Chairman, that would specifically be the death of ...

ADV DE JAGER: He also testified about a person standing at the gate who fell down and who might have been killed by, or shot at by a member of his group being in the street?

MR CLAASSEN: That is true, he did say that there was this further person at the gate and he saw that person also going down. I think he did not explicitly say that it was done by himself as it was, his back was to this specific person. Mr Chairman, yes ...

ADV DE JAGER: I think in any event he would have been guilty because of common purpose, they went there to kill people?

MR CLAASSEN: They went there as a group and this was also planned by the group of Youth leaders as testified by the applicant. Mr Chair, I think that this application should apply to what he testified, what had occurred there. He goes further and says specifically that he believes himself to be responsible for the death of Debogo.

ADV DE JAGER: I have got the impression that this wasn't in fact pointed out to him and I don't know who completed his form, it doesn't seem to be his own handwriting if one looks at his signature, but I think you should consider it because he had been found guilty and I don't know, I haven't looked at the sentence now for each of the, what was his sentence for the attempted murder for instance?

CHAIRPERSON: Ten years?

ADV DE JAGER: (No translation - transcriber's own translation) You see, charge 1 culpable homicide, charge 2 culpable homicide. Charge 3 in respect of seven charges of attempted murder and possession of firearms, and there is the sentence. Charges 1 and 2, on each charge, ten years prison sentence, charges 3 to 7, that is the seven attempted murder charges, on each charge, five years' prison sentence, charges 8 and 9 read together for purposes of sentence, that is the firearms, three years' prison sentence. It is being ordered that the sentences on charges 1 and 2, 8 and 9 would be served concurrently with the sentences on charges 3 to 7. It seems to me that the 20 years, there is nothing that charges 1 and 2 should run concurrently, that gives you 20 years and on charges 8 and 9, it was three years, that would make it 23 years. Say that we should grant amnesty, what should we grant amnesty for? You have applied for murder, that would probably include culpable homicide, I mean that includes culpable homicide, but one charge only gives you ten years, then he would still have to serve ten years. (End of transcriber's own translation) He is serving three years for being in possession of weapons and even if we would give him amnesty for the ten years, and not on the second, on charges 3 to 7 for the attempted murders, although they are being served together now, but wouldn't that still stand if we only give him amnesty on say one? I think you should consider it and explain it to the client, I don't know whether an amendment, we will have to discuss it and see whether if you move for an amendment, whether we could grant it, whether we are in a position to grant it, but I think your client, I don't know whether it has been explained to him.

MR CLAASSEN: Thank you, thank you very much for pointing it out to me. I fully understand what the Committee has pointed out to me and it is indeed so that even though for purposes of sentence, that they run concurrently, if amnesty should be considered only on the first charge, obviously it still leaves the sentences on the further charges. Mr Chair, I think it would be, if I might be given the opportunity to ...

ADV DE JAGER: Perhaps, I don't know, I have interrupted you now, perhaps you should go on with your argument if you've still got any further submissions.

MR CLAASSEN: Thank you. As far as the argument is concerned, once again, maybe just looking at the circumstances, I am of the opinion and looking as it was pointed out, at the application itself which only states murder, it is quite evidence that evidence more than that was given before this Committee today concerning further crimes for which applicant was charged and found guilty. If the Committee would indulge me in an application for perhaps altering the application to include these further crimes for which he was sentenced, I would be most grateful. All taken into consideration, it is my submission that the applicant looking at the facts once again and the act may qualify him, and it is also indeed my - I ask this Committee to consider the granting of amnesty for the charges of culpable homicide and attempted murder and if one looks also at the charges of the possession of unlicensed firearms, the accused testified that they went there with pistols to commit these crimes. If the Committee would grant me the opportunity to amend the, discuss it and amend the application, I would be most grateful.

CHAIRPERSON: Have you got any other submissions just on the merits before we deal with the question of the application for an amendment?

MR CLAASSEN: Mr Chair, I will leave it at that.

CHAIRPERSON: You've got no other submissions on the merits of the matter, the merits of the application?

MR CLAASSEN: I will leave it at that.

CHAIRPERSON: And you say you are applying for an amendment of the application to include all of the counts on which your client was convicted and sentenced as indicated in the prison records?

MR CLAASSEN: That is correct Mr Chairman.

CHAIRPERSON: My attention is just drawn to the fact that on paginated page 14 of the record, which seems to be further particular furnished by your client, there is some reference to some other counts, attempted murder and possession of firearms, so there appears to be some basis, some indication that you client had in mind in fact those offences which he was convicted of? Have you got any other submissions?

MR CLAASSEN: I would leave it at that Mr Chairman.

CHAIRPERSON: Can I just ask you to switch that microphone off in front of Mr Makhaye. Ms Mtanga, have you got any submissions?

MS MTANGA IN ARGUMENT: Yes Chairperson, I do. It is my submission on behalf of the families that Mr Makhaye, the applicant, had no political motive in killing or injuring the people at the wedding. He has testified that he didn't know what political organisation or affiliation those people were, except Debogo whom he identified as an ANC member or associated with ANC people. The people he had injured and killed, were attending a wedding. They were not attending a political rally that could have made him probably associate them with the ANC and therefore it is their submission that his attack on the rest of the people, besides Debogo was not politically motivated.

ADV GCABASHE : Are the families opposing the granting of amnesty?

MS MTANGA: Yes, they are Chairperson.

ADV GCABASHE : In respect of which victims, all of them or only the ones who ...

MS MTANGA: My instructions are Chairperson, that the family of Lefa Mtimkhulu who is being referred to here as Debogo is of the view that Lefa was never a member of the ANC, but then my difficulty is disproving that because there is no evidence that you can furnish that he was not a member of the ANC, but their position is that he was never a member of the ANC. They even doubt if the applicant can really identify him even if he had to be shown a photograph.

ADV GCABASHE : But they are opposing the granting of amnesty on those grounds?

MS MTANGA: Yes they are, Chairperson. And then the rest of the families are also opposing, that is the family of Simon Ndlovu who was killed and the rest of the people who were injured on the grounds that they were never politically affiliated in the area and they were never involved in any attacks against the hostel.

ADV DE JAGER: If this was not a act associated with a political objective, is there any suggestion of another objective?

MS MTANGA: Chairperson, the submission of the families is that the applicant had seen the person whom he identified as an ANC member, Debogo and if for his actions to be politically justified, he should have killed Debogo only, the person that he could recognise as an ANC member, and the people, the rest of the people that he attacked, were attending a wedding and it was obvious by the presence of the tent in the premises.

ADV DE JAGER: That can't help us, I know it is a factor that we could consider, but people walking in the street, were killed at some stages and it was clearly political, so the fact that they found them at a function, couldn't be a decisive factor in saying it was not political?

MS MTANGA: Chairperson, the people who were gathered at that wedding, were not gathered for political reasons, so I cannot understand the grounds for him to attack them. What was the basis for going to attack?

ADV DE JAGER: ... a political opponent would be walking down the street and he would be attacked.

MS MTANGA: To me that would be politically justifiable.

ADV DE JAGER: ... wedding or whether he is attending a meeting or whether he is walking down the street innocently or whether he had gone shopping and was killed in a shop, would that really ...

MS MTANGA: Targeting that political opponent would be politically justifiable in my opinion Chairperson, that is my submission. Targeting people that you don't know and you don't even know what their political affiliation is, cannot be a justifiable political motive. You cannot regard, they cannot be regarded as political opponents of the IFP because he didn't know them, he didn't know their political affiliations.

CHAIRPERSON: In fact didn't he in a sense concede perhaps obliquely, but concede that they erred? In fact I think he was telling us look, they made mistakes. Now that he has had time to reflect on the matter, he accepts that the action was perhaps an error.

MS MTANGA: Well, that supports my view Chairperson, that I wouldn't have regarded it as a mistake because he knew those people, he didn't know them, he didn't know their political affiliation and regardless of this, he fired at them. They had already killed Debogo and then they went on shooting other people.

CHAIRPERSON: Have you got any other submissions on the merits?

MS MTANGA: No, I've got no other submissions.

CHAIRPERSON: In regard to the application to amend, do you oppose that or do you leave that in our hands?

MS MTANGA: I leave it in your hands Chairperson, thank you.

CHAIRPERSON: Mr Claassen, have you got any other submissions that you want to address to us?

MR CLAASSEN: Thank you Mr Chair, I would leave it at that.

CHAIRPERSON: Yes, the panel would need a bit of time to consider the matter, and to formulate a decision. Under those circumstances we are going to reserve the decision in the matter and we will notify all of the interested parties as soon as we have reached a decision and we will communicate that decision to all the parties who have an interest in these proceedings.

We will reserve the decision. Is there anything else that we have on the roll for today?

MS MTANGA: We've got nothing for today Chairperson, Mr Brian Koopedi who was supposed to appear today on behalf of the four applicants in the two incidents, has advised us that he was told that the hearing would start tomorrow and not today so he won't be able to appear. He will only come tomorrow morning.

CHAIRPERSON: Yes, well, in that event, we wouldn't be able to take the matter much further this afternoon, we will adjourn the proceedings at this stage and we will reconvene in this venue tomorrow morning at nine o'clock, we are adjourned.

COMMITTEE ADJOURNS