RAYMOND NQANDA: (sworn states)
CHAIRPERSON: Please sit down, you have been sworn in. Ms Cambanis.
EXAMINATION BY MS CAMBANIS: Thank you, Chair.
Sir, you are the second applicant in this matter and you have completed the prescribed form for amnesty, which appears at page 8 to page 14 of the bundle, which we have gone through. Do you confirm that?
MR NQANDA: That is correct.
MS CAMBANIS: And the signature appearing on page 13 of that bundle, is that in fact your signature?
MR NQANDA: That is correct.
MS CAMBANIS: And do you confirm the contents of this application is correct?
MR NQANDA: That is correct.
MS CAMBANIS: And then we had subsequent consultations and further particulars were drawn up which are now before this Committee as Exhibit B, which consists of three pages of a statement, together with annexures from the submissions made by the ANC to the TRC. Do you confirm that we have gone through this statement and that it is your statement?
MR NQANDA: That is correct.
MS CAMBANIS: And the signature appearing at page 3, do you confirm that that is your signature?
MR NQANDA: That is correct.
MS CAMBANIS: And you confirm the contents of that?
MR NQANDA: That is correct.
MS CAMBANIS: Now Sir, in your application at page 12, paragraph (a), you spoke about a Mr Sam Nqati as being a leader, is that correct? - of the SDUs.
MR NQANDA: That is correct.
MS CAMBANIS: And subsequently to that you have heard the evidence of Mr Benswana, who says that he together with one White and a Mr - I beg your pardon, Mr Johnson Sivella, met to discuss this. What is your comment on that?
MR NQANDA: That is correct.
MS CAMBANIS: And do you know someone called Ms Skosana?
MR NQANDA: Yes, I know her.
MS CAMBANIS: Who is she?
MR NQANDA: She's Puseretso Skosana.
MS CAMBANIS: Yes, do you know what her position - do you know what she did at that time? Just tell the Committee who is she.
CHAIRPERSON: Oh, is it a she?
MS CAMBANIS: It is a she. We're very happy to have a female commander.
MR NQANDA: She was an SDU Commander.
MS CAMBANIS: Yes. For which area?
MR NQANDA: In the Duduza area.
MS CAMBANIS: Sir, it's your evidence that at that time there was - this happened just before the run-up to the first general election in March 1994, is that correct?
MR NQANDA: That is correct.
MS CAMBANIS: And you in your statements have told the Committee that at that time there was a conflict between the ANC and the IFP in the area, is that correct?
MR NQANDA: That is correct.
MS CAMBANIS: And the people that were killed in this incident, you've told, is a Mr S Ngema, Mr L Mkhize and Mr Ntombela, is that correct?
MR NQANDA: That is correct.
MS CAMBANIS: And at page 75 of the bundle we have gone through that they were branch executive members of the IFP, is that correct? - or members of the IFP.
MR NQANDA: That is correct.
MS CAMBANIS: On the night of the attack, it is your evidence that you were armed with a kierie, is that correct?
MR NQANDA: That is correct.
MS CAMBANIS: What did you do with the kierie that night?
MR NQANDA: I used it to hit.
MS CAMBANIS: Who, Sir?
MR NQANDA: Because it was dark I could not see who exactly was I beating.
MS CAMBANIS: But where were you when you were using the kierie? At what place were you?
MR NQANDA: At the hostel.
MS CAMBANIS: And who stayed at the hostel?
MR NQANDA: It was IFP members residing there at the hostel.
MS CAMBANIS: So it is your evidence that you were attacking members of the IFP that night?
MR NQANDA: That is correct.
MS CAMBANIS: And did you receive any material benefit as a result of your participation in the attack that night? Were you paid?
MR NQANDA: No, I was never paid.
MS CAMBANIS: Thank you, Chair, that is all for this applicant.
NO FURTHER QUESTIONS BY MS CAMBANIS
CHAIRPERSON: Thank you. Mr Nyawuza, any questions?
JUDGE MOTATA: Before then, Madam Chair, I just see the affidavit is signed
"On this 1st day of year 2000"
MS CAMBANIS: The Commissioner of Oaths is the prison person who is available. I'll approach him afterwards and get him to rectify it was signed today by the Prison Service. I apologise.
CHAIRPERSON: He omitted to state the month.
MS CAMBANIS: Yes, I see that now, I'm sorry. He is present, he's from the Prison Service.
CHAIRPERSON: We can easily do that from here.
MS CAMBANIS: Thank you, Chair.
CHAIRPERSON: I don't seem to have the original affidavit of Mr Nqanda, I have a copy.
MS CAMBANIS: Chair, I think I may - may I approach, I think I have it with me.
CHAIRPERSON: Yes. Thank you. Mr Nyawuza, do you have any questions to put to Mr Nqanda?
MR NYAWUZA: No, I don't have any questions, thank you.
NO QUESTIONS BY MR NYAWUZA
ADV STEENKAMP: Neither have I, thank you.
NO QUESTIONS BY ADV STEENKAMP
CHAIRPERSON: Judge de Jager.
JUDGE DE JAGER: I see in the post-mortem report one of the deceased had a crushed skull, may that possibly have been caused by your participation, or did other people also use kieries?
MR NQANDA: It is possible because I was one of the people who beat him.
JUDGE DE JAGER: Thank you.
CHAIRPERSON: Judge Motata.
JUDGE MOTATA: Just one, thank you Madam Chair.
What was the light like when this attack took place at the hostel? Was there light?
MR NQANDA: It was dark.
JUDGE MOTATA: Thank you, Madam Chair, I've got no further questions.
CHAIRPERSON: Do you know how many people you possibly might have hit with your kierie?
MR NQANDA: I did not count how many people did I manage to hit.
CHAIRPERSON: Did you hit quite a number of people with your kierie on that night?
MR NQANDA: That is so, Chairperson.
CHAIRPERSON: How long would you say this incident lasted?
MR NQANDA: It could have been an hour or so.
CHAIRPERSON: And during that entire period you were using a kierie.
MR NQANDA: That is correct.
CHAIRPERSON: Ms Cambanis, do you really want to re-examine?
MS CAMBANIS: No, I really don't, thank you Madam Chair.
NO RE-EXAMINATION BY MS CAMBANIS
CHAIRPERSON: You therefore close your case.
MS CAMBANIS: That is the case for the second applicant. Thank you, Chair.
WITNESS EXCUSED
CHAIRPERSON: Mr Nyawuza.
MR NYAWUZA: As it please, Madam Chair. I'm would like to call on Mr Izaia Ngema, he's the younger brother to the deceased.
CHAIRPERSON: Yes. Before you do that, can I just ascertain from Ms Cambanis. Ms Cambanis, it has now been drawn to our attention that Mr Ngema died, did he die as a result of the injuries he sustained during this attack, or he died of something else?
MS CAMBANIS: Chair, the only - I don't know what the answer is, I'm assuming it was as a result of the injuries sustained on that night, because of his position and it's just - and what appears on page 75, what the position was.
CHAIRPERSON: Yes. Mr Nyawuza, you may proceed. You now wish to call Mr?
MR NYAWUZA: Mr Izaia Ngema.
CHAIRPERSON: Izaia Ngema. In what language will Mr Ngema be testifying?
MR NYAWUZA: In Zulu, Madam Chair.
IZAIA NGEMA: (sworn states)
CHAIRPERSON: You may be seated. Duly sworn in. Thank you, Mr Nyawuza, you may proceed.
EXAMINATION BY MR NYAWUZA: Thank you, Madam Chair.
Mr Ngema, how are you related to Sinda Mzikau Khulewa Ngema?
INTERPRETER: Would you please repeat the names.
MR NYAWUZA: Sinda Mzikau Khulewa Ngema.
MR NGEMA: He's my brother.
MR NYAWUZA: During 1994, March, where were you resident?
MR NGEMA: I was residing at Duduza.
MR NYAWUZA: Where in Duduza?
MR NGEMA: At the hostel.
MR NYAWUZA: Was Sinda Ngema also a resident of the same hostel?
MR NGEMA: That is correct.
MR NYAWUZA: Do you know of any conflict that was happening at the hostel during that time?
MR NGEMA: It was violence.
MR NYAWUZA: Who against who, Mr Ngema?
MR NGEMA: It was a conflict between the IFP and the ANC.
MR NYAWUZA: Do you perhaps know the applicants who are here today?
MR NGEMA: Yes, by sight I know them.
MR NYAWUZA: How do you know them by sight?
MR NGEMA: I only know them by sight.
MR NYAWUZA: Can you just tell this Committee where you saw them if you know them by sight.
MR NGEMA: I used to see them at the hostel.
MR NYAWUZA: Were they resident at the hostel or were they just visiting somebody at the hostel?
MR NGEMA: They were resident at the hostel.
MR NYAWUZA: Was there a conflict between the said applicants before this Committee today and the other inmates of the hostel?
MR NGEMA: No, the conflict only started during the violence, but I cannot recall them being in any conflict with some residents at the hostel.
MR NYAWUZA: So the conflict that you're referring this Committee to, did it include - was it affecting political organisations and not individuals?
MR NGEMA: It was a conflict that affected individuals politically speaking. I would say it was a conflict between the ANC and the IFP.
MR NYAWUZA: Mr Ngema, is it correct that this morning when I consulted with you, I explained to you the purpose of this hearing?
MR NGEMA: Would you please repeat.
MR NYAWUZA: Mr Ngema, is it correct that this morning when I consulted with you and your family members, I explained to you the purpose of this hearing?
MR NGEMA: Yes, you did explain.
MR NYAWUZA: And I even explained the effects thereof to you, is that so?
MR NGEMA: Yes.
MR NYAWUZA: The said applicants have given testimony that there was conflict between the IFP and the ANC ...(intervention)
JUDGE DE JAGER: But that seems to be common cause because ...(intervention)
CHAIRPERSON: That's his evidence, you are repeating his evidence.
JUDGE DE JAGER: ... he's telling us the same.
MR NYAWUZA: I'll withdraw that question, thank you.
So Mr Ngema, what can you say to what I have said, what is your feeling towards what I have said?
MR NGEMA: I would like to ask them questions as well as I can.
CHAIRPERSON: Mr Ngema, this process has been explained to you. Unfortunately this is not a forum to enable you to canvass questions outside the parameters of the issue that we as a Committee have to consider and decide whether or not to grant the applicants amnesty. Now the questions that can be put by you are questions that are (a) aimed at assisting us in deciding whether these applications have met the requirements that are set down by the Act.
Now if there are such questions, then we will allow you to put them through your attorney to the applicants, otherwise we know there are quite a number of questions that victims might wish to canvass with applicants, which have no bearing on a forum such as ours, unfortunately. In that case we usually expect counsel or the legal representative appearing for and on behalf of the applicants together with your lawyer, to try and discuss a way of trying to have some kind of mediation where you can ask such questions of the applicants which have no bearing on these proceedings and this usually happens behind closed doors and not in a forum such as this one.
Unfortunately, Mr Ngema, this is a legal process and these proceedings are conducted within the ambit of the quasi judicial forum. We only allow evidence that will enable us to evaluate the evidence given by the applicants with regard to whether they qualify for amnesty or not.
This is not being insensitive to the needs of the victim, to try and mediate with the applicants in situation where such mediation will benefit both parties, particularly the victims. And we expect the legal representatives to facilitate such a process the best way they can, but this is done not in a setting, in a formal setting such as this one. Do you understand?
MR NGEMA: Thank you, I understand.
CHAIRPERSON: Yes.
MR NGEMA: That means that I will withdraw my questions.
CHAIRPERSON: Mr Nyawuza, we will expect you to assist us as a Committee by explaining whether the questions that Mr Ngema wanted to pose to the applicants would have assisted us in deciding whether the applicants qualify for amnesty or not. And if those questions would not assist us in deciding the applications before us, we would really urge you and Ms Cambanis to facilitate a meeting, a mediatory meeting where - because now we have this novel opportunity of both applicants being here and the victims being present, to try and talk.
MR NYAWUZA: Thank you, Madam Chair. Can I ask him off record?
CHAIRPERSON: Yes, you may.
SOUND TURNED OFF
SOUND TURNED ON
MR NYAWUZA: Thank you, Madam Chair, for your indulgence. The question that he wanted to ask will not take us anywhere and will not help the Honourable Committee in any way.
CHAIRPERSON: We have become quite familiar with such situations. I hope this Committee is not going to be seen as insensitive, it's just that if we do not control and take charge of the proceedings, we are likely to really run havoc of what the real essence of this process is all about.
MR NYAWUZA: Yes, I'm aware Madam Chair, and thank you for that. It's been stressed numerously that ...
CHAIRPERSON: Yes.
MR NYAWUZA: Madam Chair, I think he said that's his evidence.
CHAIRPERSON: Do you propose - it's not your intention to call further witnesses?
MR NYAWUZA: Madam Chair, there is the wife who I think we'll have to - whether there's a need that I should call her - she actually wanted to address the applicants, but I don't know ...
CHAIRPERSON: It requires the mediation I have already suggested to you.
MR NYAWUZA: It requires the mediation, so we'll address them outside this room.
CHAIRPERSON: Yes.
MR NYAWUZA: Thank you, Madam Chair.
CHAIRPERSON: I am sure we can even facilitate if you should have problems with Ms Cambanis. We are here to try and make sure that parties reconcile. The amnesty process however is a difference process, it is a quasi judicial process.
MR NYAWUZA: Yes, Madam Chair. I think the Committee will realise in calling Mr Ngema here, the evidence that Mr Ngema led was that there was a conflict which ...(intervention)
CHAIRPERSON: Yes, we've heard that evidence loud and clear.
MR NYAWUZA: Okay, thank you, Madam Chair.
CHAIRPERSON: It's as clear as our South African diamond.
Thank you, Mr Ngema, for having come forward to give this evidence. We share your pain, we understand what you must be going through. It is for that reason that we always specially show our gratitude to victims who come forward to be party to these proceedings, with the hope that by coming before this Committee they will be able to ameliorate their pains.
WITNESS EXCUSED
CHAIRPERSON: Ms Cambanis, are we in a position to argue?
MS CAMBANIS IN ARGUMENT: Yes, Chair.
I submit on behalf of both applicants that they have complied with Section 20(a), (b) and (c) of the Act. The applicants on the prescribed forms are duly attested to and before you. The further particulars in terms of Section 19 are before you, duly attested and thus (a) is complied with.
Regarding full disclosure, there may be a suggestion that the first applicant, Mr Benswana, in being a little confused about the manner in which Mr Ntombela was assaulted and killed, may lead to a question of dishonesty. I submit that that is not so. He said that he was armed with an assegai and a panga of which he used mainly the panga. This is I submit, not what is meant by full disclosure, whether there is some contradiction or some confusion regarding the manner of the killing. He repeatedly told the Committee that his intention was to kill members of the IFP and that is what is meant by full disclosure. He is not a convicted man. He has come to this Committee to tell of his participation in that voluntarily, it is not for the purpose of being released from prison.
Similarly with the second applicant, full disclosure has been made, they have given the command structure, they have told who the overall commander is, who the members are who made the decision and they have admitted their involvement in the deaths of the seven members of the IFP.
The section (b) that is left, relating to an act associated with a political objective, Chairperson it is trite that there was a - that they qualify in terms of Section 20(a), as members of the SDUs aligned with the ANC ...(intervention)
CHAIRPERSON: 20(2)(a).
MS CAMBANIS: 20(2)(a).
... that they are members of a publicly known organisation and that this act was carried out in furtherance of the political struggle waged between two publicly known liberation movements, namely the ANC and the IFP.
Regarding the Section 20(30, Your Worship, they've disclosed the motive as political - the context has been given on paper, Your Worship, it is prior to the election, it is a time when the IFP are not participating and there is intense conflict between those wishing to participate in the democratic election and those who do not want the participation. It takes place in that factual time of our history.
The repeated pattern of the nature of what was happening at the hostels is repeated here, it has been found in other Commissions. Where the modus operandi of the IFP was to take over hostels and use those as power-bases, that is I think been found in the TRC Report already, that that is part of our history and is now admitted as such. They did not do this without permission, it was done with the knowledge of their commander, Ms Skosana. She admits that it was within the policy of SDUs and what was happening in that area.
And they have - finally, Your Worship - I beg your pardon, Honourable Chairperson, given evidence that they did not get personal gain from this and there is no suggestion that they acted our of personal malice, ill-will or spite.
In consequence I submit that both qualified, have fulfilled the requirements of all the sections and must therefore be allowed amnesty. That is all, thank you.
CHAIRPERSON: Mr Nyawuza.
MR NYAWUZA IN ARGUMENT: Thank you, Madam Chair.
As I have stated initially, Madam Chair, that our instructions, my instructions were not to oppose the said application but to watch brief and what has transpired today before this hearing I've discussed with the affected family and we're happy that more of what wasn't known to them, came out today and even in the light of what Mr Ngema has testified before this hearing today, that there was in fact the political squabbling. And the family is satisfied that at least at last they now know who were involved in the killing of the husband and the brother and the son to the old man who is sitting at the back. So we don't have any objection to the two applicants being granted amnesty. Thank you.
CHAIRPERSON: Yes. Ms Cambanis.
MS CAMBANIS: I have nothing further.
CHAIRPERSON: This brings us to the conclusion of the two applications. Before we state our position with regard to the decision, we would like again to express our gratitude to both the Ntombela and the Ngema family for have travelled all the way from Natal to participate in these proceedings in the spirit in which they have participated.
We hope, as already indicated by their legal representative, that indeed the evidence led before this Committee will assist them in trying to close a terrible chapter that has been staring at them for all these years, as today they know now how their loved ones were killed, why they were killed and they've been able to hear such information from the applicants, the perpetrators of the heinous deed.
We unfortunately will not be able to pronounce our decision on these applications, but we will do so on the 8th of February, and our decision will be communicated to both Ms Cambanis, representing both applicants, and Mr Nyawuza who is appearing for the Ngema and the Ntombela family.
This brings us to the close of our proceedings. We shall now proceed with the next application set down for hearing today.
MS CAMBANIS: Thank you, Chair. May we be excused?
CHAIRPERSON: You may be excused.
MR NYAWUZA: Thank you.
CHAIRPERSON: Thank you, Mr Nyawuza.
ADV STEENKAMP: Thank you, Madam Chair. The next matter to be heard today is that of the application of Mr Koos Gahutla Tsotetsi. The application number Madam Chair will be 7974/97. Thank you, Madam Chair.
