CHAIRPERSON: I am Judge Pillay. I announce myself for the purposes of the record. I'm going to ask my colleagues to do the same, and the representatives to also announce themselves for the purpose of the record.
JUDGE MOTATA: I am Judge Motata from the TPA.
ADV SIGODI: Advocate Sigodi from the Port Elizabeth Bar.
MR RICHARD: Good morning, Chairperson. Tony Richard, Johannesburg.
MS MTANGA: Lula Mtanga, the Evidence Leader.
MR KOOPEDI: Brian Koopedi for the implicated person.
MR SHAI: Gama Shai from Germiston, for the applicant.
CHAIRPERSON: Ms Mtanga, why are we late again?
MS MTANGA: Chairperson, we were informed by the Witness Protection Unit that the Leeuwkop Prison officials were experiencing problems in bringing the applicant here because they didn't have bakkies, so they informed us that they wouldn't be able to arrive before nine. That's the information we received.
CHAIRPERSON: Mr Shai, what language does your client prefer to use?
MR SHAI: Southern Sotho, Mr Chair.
MR NTOKA: (sworn states)
CHAIRPERSON: Please be seated. Yes, Mr Shai.
MR SHAI: Mr Chair, are we going to proceed from where we stopped in the previous appearance, or are we starting afresh?
CHAIRPERSON: We've got a report that the applicant is able to understand and stand the hearing, so you start to lead him on the merits as you want to. Whatever you did last time was done when he was ill, do you recall that?
MR SHAI: I can recall it.
CHAIRPERSON: One would not expect him to remember those things, so you start from the beginning.
MR RICHARD: Thank you, Chair. At this point it's appropriate for me to put on record the instructions I received this morning. The victims do not oppose Mr Ntoka's application. They accept that, firstly, he was a member of the ANC, secondly that the act which constitutes a crime, was done with a political motive and thirdly, it was done at the instance of various people more senior than him at the time and that in the circumstances, he had a legitimate and bona fide and honest perception. However, when it comes to my instructions as to what to examine, my only examination will be on what instructions he did receive. Thank you, Chair.
EXAMINATION BY MR SHAI: Mr Ntoka, for purposes of the record, when were you born and where?
MR NTOKA: In March 1973.
MR SHAI: And where?
MR NTOKA: In Heidelberg.
MR SHAI: Now what is your level of education?
MR NTOKA: Standard six, Chairperson.
MR SHAI: You're making application for an incident that took place on the 21st of August 1992, is that correct?
MR NTOKA: That is correct, Chairperson.
MR SHAI: And you have been sentenced as a result of the charges that followed thereafter, correct, and you're presently serving a sentence.
MR NTOKA: That is correct, Chairperson.
MR SHAI: At the time of the incident in question, were you a member of any political organisation or a supporter thereof?
MR NTOKA: I was a member, Chairperson, of the ANC. Of the ANC Youth League.
MR SHAI: When did you join the said organisation?
MR NTOKA: In 1987, Chairperson.
MR SHAI: Now the activities that you were carrying out, were they confined to the Heidelberg area?
MR NTOKA: My political activities were confined to Heidelberg, except when I go to political funerals outside.
MR SHAI: Now these activities that you were carrying out on behalf of the said organisation, were you carrying them out as a member of a unit or a cell?
MR NTOKA: May you please repeat your question.
MR SHAI: The activities that you were carrying out, were they carried out within a cell or in a unit?
MR NTOKA: We were doing them within our township.
MR SHAI: Who were you doing them with?
MR NTOKA: We were many, and some members of the community.
MR SHAI: And who were you receiving instructions from?
MR NTOKA: The person who gave me instructions is now deceased. He is now deceased.
MR SHAI: Who is this person?
MR NTOKA: That's Mguni.
MR SHAI: And your immediate Commander, was it this man, Mguni?
MR NTOKA: That is correct, Chairperson.
MR SHAI: And do you know who this man, Mguni, was reporting to?
MR NTOKA: Yes, Chairperson. I know his surname is Mr Nkosi, or Mrs Nkosi.
CHAIRPERSON: ...(indistinct) who's that? Please talk up. You talk about activities in which you and others were involved, which activities were these?
MR NTOKA: We were patrolling and fighting with IFP.
CHAIRPERSON: Yes. Now in which capacity did you do that?
MR NTOKA: May you please explain further, I don't understand your question.
CHAIRPERSON: Were you acting as a member of the Youth League, or the ANC, or what unit, or what formation?
MR NTOKA: I was doing those things under the banner of the ANC Youth League.
CHAIRPERSON: So the ANC Youth League were conducting activities which amounted to offences?
MR NTOKA: There was a conflict at that time.
CHAIRPERSON: Wait, I'm not talking about the conflict yet. Are you saying that the ANC Youth League in Heidelberg, Ratanda, to be specific, of which you were a member, was conducting activities within the area, which amounted to offences?
MR NTOKA: Yes, I would say they were illegal.
CHAIRPERSON: Did you not hear of an entity regarded as, or referred to as a Self-Defence Unit?
MR NTOKA: I only learnt about SDUs whilst I was in prison.
CHAIRPERSON: No, I'm talking about the time that these activities were conducted. Did you not know of any SDU formation at the time?
MR NTOKA: I did not know that, Chairperson.
CHAIRPERSON: Carry on, Mr Shai.
MR NTOKA: I did not know that, that there was a formation called SDU.
MR SHAI: Now these activities that you were carrying out, how were you conducting them?
MR NTOKA: We were patrolling at night or during the day.
MR SHAI: And how did you come to meet with the other members you were patrolling with?
MR NTOKA: We would meet at Mr Nkosi's place, then from there we would divide ourselves into groups.
MR SHAI: And then how many people would normally be in your group?
MR NTOKA: I'd be in a group of ten people.
MR SHAI: Now how was the situation in Ratanda in 1992, when the incident in question took place?
MR NTOKA: The situation was not controllable, so during the day and during the night we would patrol the streets.
MR SHAI: Why was it necessary to patrol the streets?
MR NTOKA: IFP members would leave the hostel and enter the township. That is why we were patrolling. The situation demanded that we should patrol our township.
MR SHAI: Were you in possession of any weapons when you were so patrolling?
MR NTOKA: That is correct, Chairperson, we were armed.
MR SHAI: Who did you get the weapons from?
MR NTOKA: We were disarming and at times we would find those weapons from our leaders.
MR SHAI: When you say "from our leaders", who are you referring to?
MR NTOKA: People like Ashley Radebe, or Patsuko, Mzwake and Nkosi, all those who were in the leadership.
MR SHAI: Do you know who they got their weapons from?
MR NTOKA: We were informed that they received those weapons from the ANC.
MR SHAI: Now let's come to the incident on the 21st of August 1992.
MR NTOKA: We were patrolling at the particular time, it was during the day. We met with IFP members. Some of them ran away and we shot one member and we burnt him.
MR SHAI: Was this member known to you as an IFP member, prior to your meeting him?
MR NTOKA: That is correct, Chairperson, he was wearing an IFP T-shirt and when we searched him we found an IFP membership card.
CHAIRPERSON: ...(indistinct) when did it happen?
MR SHAI: The incident on the 21st of August 1992, Mr Chair.
CHAIRPERSON: What happened then? What happened?
MR NTOKA: We grabbed him, we shot him and burnt him.
CHAIRPERSON: Who?
MR NTOKA: He was a male person.
CHAIRPERSON: Did you know who he was?
MR NTOKA: I did not know him, Chairperson.
CHAIRPERSON: Well why did you kill him?
MR NTOKA: Because he was a member of the IFP.
CHAIRPERSON: How did you know that?
MR NTOKA: He was armed with assegais, or traditional weapons.
CHAIRPERSON: Which you saw before you killed him?
MR NTOKA: We searched him. He was wearing an IFP T-shirt, and then he was armed with traditional weapons.
CHAIRPERSON: Ja. Did you search him before or after you killed him?
MR NTOKA: That is correct, Chairperson.
CHAIRPERSON: What is correct?
MR NTOKA: Before we killed him we searched him.
CHAIRPERSON: About what time in the day was this?
MR NTOKA: It was around 2 o'clock during the day.
CHAIRPERSON: Well what was wrong with someone carrying an assegai?
MR NTOKA: He was a member of the IFP, and he was wearing an IFP T-shirt, and at that time we were patrolling and then ...(intervention)
CHAIRPERSON: No, but why are you mentioning he carried an assegai, what was so special about an assegai?
MR NTOKA: Because we were in a situation of war, Chairperson.
CHAIRPERSON: I asked you how did you know he was a member of the IFP, you said he had a T-shirt of the IFP on and he carried an assegai. So was it only IFP members that carried assegais and weapons, or what?
MR NTOKA: Sorry? You mean at the time of the conflict, Chairperson?
CHAIRPERSON: Yes.
MR NTOKA: I only saw members of the IFP carrying traditional weapons during that time.
CHAIRPERSON: Then you say you took him into custody, you caught him?
INTERPRETER: They grabbed him, Chairperson.
CHAIRPERSON: And you say he was searched.
MR NTOKA: Yes, we searched him and we found the membership card of the IFP.
CHAIRPERSON: Yes, carry on. What happened then? Now you established now he's a member of the IFP, what happened?
MR NTOKA: After we discovered that he was a member of the IFP, with the knowledge that we were in a conflict with the IFP, we shot him and we burnt him.
ADV SIGODI: Who is "we"?
MR NTOKA: I had an accomplice, but he did not apply.
MR SHAI: But who fired the ...(intervention)
CHAIRPERSON: Were there only two of you?
MR NTOKA: No, Chairperson.
CHAIRPERSON: How many of you were there?
MR NTOKA: We were many.
ADV SIGODI: Who fired the shot?
MR NTOKA: He is a certain boy.
ADV SIGODI: Who?
MR NTOKA: Jacob Mohemi Moremi.
MR SHAI: Were you personally in possession of a firearm?
MR NTOKA: Yes, I was armed, Chairperson.
MR SHAI: Did you personally fire shots at the person who was killed?
INTERPRETER: May you please repeat your question, Chairperson. I'd request the mike to be drawn closer to the applicant, because he's not audible enough.
MR SHAI: Did you personally fire shots? You say you were in possession of a firearm, did you fire shots at the person who was killed?
MR NTOKA: I shot at the police.
MR SHAI: Okay, let's start from here. You shot, or members of your group shot at the deceased, what happened next?
CHAIRPERSON: What did you do yourself in respect of killing the deceased?
MR NTOKA: I poured petrol on him and I set him alight.
CHAIRPERSON: Is that all you did to him?
MR NTOKA: I shot.
MR SHAI: Who did you shoot at?
MR NTOKA: I shot at the deceased.
MR SHAI: Was it prior to the burning or before then or after?
MR NTOKA: That is before he was set alight, Chairperson.
MR SHAI: So in other words, you did shoot at the deceased as well, before ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone) he shot at the deceased.
INTERPRETER: The speaker's mike is not on.
CHAIRPERSON: He said he shot at the deceased. There can be no misunderstanding about that.
MR SHAI: I'm just trying to clarify, because initially he said somebody else shot at the deceased.
CHAIRPERSON: Yes, but that's not a problem because both of them shot.
ADV SIGODI: How many shots were fired at the deceased?
MR NTOKA: He was shot but I was not counting, I was not counting how many times.
ADV SIGODI: How many people shot at the deceased?
MR NTOKA: Two people, but we were many, but two people shot at him.
ADV SIGODI: So is that you and the other person you mentioned, Jacob Moremi?
MR NTOKA: That is correct, Chairperson.
ADV SIGODI: Okay.
JUDGE MOTATA: And you, how many shots did you fire, because you were not counting? You personally, you could not count as well.
MR NTOKA: I was shot at on that day, I was not counting.
MR SHAI: Now after burning the deceased, what happened? Did police arrive at the scene or what transpired?
MR NTOKA: That is correct, Chairperson, the police arrived.
CHAIRPERSON: Before we get there. Now the man is shot, he's lying there, what happens next?
MR NTOKA: We searched him and we found the membership card of the IFP, then I poured petrol at him and I set him alight, and then the police came.
ADV SIGODI: Where did you get the petrol from?
MR NTOKA: We drained a certain car.
ADV SIGODI: Who drained the car?
MR NTOKA: A certain person who has since died.
CHAIRPERSON: It's strange how all these people just died in-between you know. Carry on.
MR SHAI: Then you drained the petrol and lit the deceased, is that correct?
MR NTOKA: That is correct, Chairperson, I poured petrol at him and set him alight.
MR SHAI: And thereafter, what transpired?
MR NTOKA: The police came and then they shot at us and I was also shot.
MR SHAI: Now what happened to the weapon which was in your possession?
MR NTOKA: I was shot at and then it fell on the ground.
MR SHAI: Now there is one incident that involved - Mr Chair, you'll bear with me on this one, they are no dates actually given, but apparently he is also making application for the incident, that is the burning of the houses of alleged IFP members.
CHAIRPERSON: I don't think it's ...(indistinct - no microphone)
MR SHAI: They are covered in his affidavit.
CHAIRPERSON: ...(indistinct - no microphone)
INTERPRETER: The Chairperson's mike is not on.
CHAIRPERSON: On which page of the application does he say so? On page 1, paragraph 9(a) he's asked to furnish particulars of the acts or omissions etcetera, and under (i), the acts, omissions or offences there say
"Murder; unlicensed firearm (and what I think should be) assault"
That's all he's applied for. Now let's see about the affidavit, what page is it? It's dated the 8th of March 1999, am I correct?
MR SHAI: Yes, it's the 8th of March 1999, from page 15 of the bundle, the typewritten one.
CHAIRPERSON: The typed version ...(indistinct - no microphone)
MR SHAI: Page 15 of the bundle, Mr Chair.
CHAIRPERSON: And the date, the important date is recorded on this page 17?
MR SHAI: 8th of March '99.
CHAIRPERSON: ...(indistinct - no microphone) added?
MR SHAI: On the written affidavit?
CHAIRPERSON: Whenever. You have indicated that you want to include another application, my job is to see whether that application has been made timeously.
MR SHAI: I understand, Mr Chair.
CHAIRPERSON: ...(indistinct - no microphone) in respect of the extra offence was made.
MR SHAI: It's also my submission, Mr Chair, that on the application itself it wasn't added, it only appears on the affidavit.
CHAIRPERSON: On the affidavit. Now when has that affidavit been sent in?
MR SHAI: On the 8th of March.
CHAIRPERSON: 8th of March, 1999?
MR SHAI: 1999.
CHAIRPERSON: Now do you think that we can hear that application?
MR SHAI: Mr Chair, it's my submission that according to the cut-off date, the Committee - because the cut-off date is supposed to be April 1998.
CHAIRPERSON: ...(indistinct - no microphone)
MR SHAI: It's late, but ...
CHAIRPERSON: But what?
MR SHAI: Mr Chair, it is my submission that it is a later application, but nevertheless in the affidavit that covers the application for the other offences that are listed in the initial application, covers the incident for which he has actually alluded to.
CHAIRPERSON: Are you serious with that submission?
MR SHAI: What I'm saying in short is, in the initial application that was handed in, no mention is made of the incident that was alluded to under paragraph 3 of the affidavit, but the same affidavit supporting the application that was initially submitted, covers the incident of the burning of the houses. Paragraph number 3.
CHAIRPERSON: And? You say we're compelled to hear that application in respect of that offence?
MR SHAI: No, Mr Chair, I'm not saying that the Committee is compelled to listen to the application, but the Committee has a discretion to actually hear the application.
CHAIRPERSON: Where in the Act does it say we have such a discretion?
MR SHAI: No, there is no guidance as to whether such a discretion should be given to the Committee or not, but if one - if the evidence that the Committee is about to listen to is evidence that is covered in the affidavit itself, I would submit that ...(intervention)
MS MTANGA: Chairperson, can I come to the assistance of my learned friend? On page 5 of the second application by the applicant, paragraph 9(a) - page 5, (i), the offences mentioned there is
1. Public violence;
2. Murder;
3. Possession of an unlicensed firearm and ammunition."
CHAIRPERSON: ...(indistinct - no microphone)
MS MTANGA: I would therefore argue that the offences relating to the burning of houses, which are not mentioned in the first application, may be covered by the offence number 1: "public violence".
CHAIRPERSON: Ms Mtanga, you've come to the assistance of the applicant, when was this house burnt down?
MR NTOKA: Chairperson, I don't have the exact date, but the houses were burnt sometime in 1992. In fact, Chairperson, there's no date mentioned by the applicant. On page 13 there's a response to further particulars requested by the Amnesty Committee, I would say it's the second paragraph, the sentence starting with
"Therefore about plus-minus 20 ...(indistinct) victims died through our actions."
CHAIRPERSON: Ja.
MS MTANGA: And no date is given, so ...
MR RICHARD: To be of assistance I would refer to the Committee to the top of page 14, there the sentence reads
"All the above-mentioned incidents took place during 1992, up to when I was arrested (9 June '93)."
That's the best the papers will give us.
ADV SIGODI: Mr Ntoka, when you filled in the forms, your application forms, if you look at page number 4, the form from page number 4 to page 10, did you fill in that form yourself? If you look at page number 9, where it says: "Deponent", is that your signature? Do you confirm that's your signature?
MR NTOKA: That is correct, Chairperson, I signed.
ADV SIGODI: I haven't heard the interpretation.
MR NTOKA: That is my signature.
ADV SIGODI: Okay. And did you fill in this form yourself?
MR NTOKA: There was somebody assisting me.
ADV SIGODI: Who assisted you?
MR NTOKA: It was another prisoner who has since been released.
CHAIRPERSON: Are you going to persuade us that this new incident or new offence was applied for timeously?
MR SHAI: Mr Chair, initially I would like to submit that in the initial application that was submitted by Mr Ntoka, one can say that apparently it is not included, but if one looks at the whole bundle, with specific reference to the affidavit that I've already referred to, paragraph number 3 of the affidavit, read in conjunction with the annexure from page 4 to page 10 of the bundle, more specifically reference to public violence, even though it's arguable, and read in conjunction with the response that was given to the Evidence Analyst, that is from pages 12 to 14, one would argue that his intention was actually to include the incidents pertaining to the burning of the houses.
Now my submission is, even though the affidavit supporting the application itself, was made after the cut-off date for such applications, read in conjunction with the documents that I've already referred to, my submission is, even though it's not specifically mentioned in the initial form that was filled in by the applicant, he had in mind all the offences that were carried out by him as a member of the ANC Youth League. And my submission is ...(intervention)
CHAIRPERSON: Mr Shai, how can you say that? How are you able to say that? ...(indistinct) he had it in his mind - that he had it in his mind to make the application?
MR SHAI: Mr Chair, if one looks at the supporting affidavit to the application itself, one can clearly state that that was his intention. And if one were to actually look at the listed offences, or rather, the activities that are mentioned, inter alia, public violence, why would he actually include public violence in the very same application that he's making for the murder and the possession of the firearms? My submission, Mr Chair, is in making mention of public violence, he had in mind other activities than the murder and the possession of the firearms, otherwise one would then raise the question, what is included under public violence? If ...(indistinct) to make mention of specific offences like the murder and the possession of the firearms, then my submission will be, the burning of the houses fall, or rather, the burning of the houses falls under the issue of public violence.
CHAIRPERSON: Mr Ntoka, look at page 5 of the application. You will see there at paragraph 9(a)(i), that the acts or omissions or offences that you apply for amnesty for, it is numbered
1. Public violence;
2. Murder, and
3. Possession of an unlicensed firearm and ammunition.
Do you recall when that was filled in?
MR NTOKA: That is in 1995, if I remember well. I don't remember the month.
CHAIRPERSON: Do you remember that "public violence" was written down there?
MR NTOKA: Do you mean burning of the houses when you mention public violence?
CHAIRPERSON: No, I'm asking does he remember that "public violence" was written down in his application.
MR NTOKA: Here it is written
1. Public violence;
2. Murder;
3. Possession of unlicensed firearms and ammunition.
CHAIRPERSON: Do you remember when those things were written down?
MR NTOKA: Yes, I do remember, Chairperson.
CHAIRPERSON: Now public violence, did you use the word "public violence" or what?
MR NTOKA: I applied for murder and being in possession of unlicensed firearms and ammunition. For me to mention the burning of the houses is because some investigating officer came to me, then they asked me about that incident, as to whether I have knowledge about other acts, then I mentioned that we burnt some houses there. And a certain doctor asked me in Krugersdorp, then I responded that there were houses which were burnt there, when I went for mental observation.
CHAIRPERSON: Do you recall the words "public violence" being written down in your application?
MR NTOKA: Yes, I observed when it was written down.
CHAIRPERSON: Did you agree with them, whoever wrote it down, that they wrote "public violence"?
MR NTOKA: Investigators came to me and asked me about these incidents.
CHAIRPERSON: Did you agree with the words "public violence" being recorded? Were you satisfied that it should be in your application?
MR NTOKA: I was not charged for public violence, I was charged for murder and illegal possession of the firearm and ammunition.
CHAIRPERSON: I'm not asking you what you were charged with, I'm asking you, when this document was completed, were you satisfied that the words "public violence" were included in the acts for which you apply for amnesty?
MR NTOKA: I wanted the victims, that is the people whose houses I participated in burning, that they should come and when I testify they should be present to hear my testimony.
CHAIRPERSON: Look Mr Ntoka, we're taking long now for a simple matter, you remember you say, that the words "public violence" were written down. Did you agree with it that it should be written down?
MR NTOKA: That is correct, Chairperson.
CHAIRPERSON: Now what were you thinking about in terms of public violence, that you wanted to apply for amnesty for?
MR NTOKA: I was thinking in regard to the houses I took part in burning, that the owners should be present when I testify.
CHAIRPERSON: Yes thank you, you can carry on.
MR SHAI: As the Chair pleases.
Now Mr Ntoka, when you were carrying out these activities as a member of the ANC Youth League, was it part of your activities to burn down houses belonging to members of the IFP?
MR NTOKA: We were in a conflict situation and then I was a member of the ANC Youth League and on that particular day members of the IFP were shooting at members of the community, then we decided to burn the houses.
MR SHAI: Can you recall specific houses that you burnt down?
MR NTOKA: There were many houses which were burnt. I remember some houses, but I don't remember some houses.
MR SHAI: But were you certain that the houses that you burnt down belonged to members of the IFP?
MR NTOKA: That is correct, Chairperson.
CHAIRPERSON: Mr Shai, you are referring to an incident which is referred to in paragraph 3 on page 15.
MR SHAI: That is correct, Mr Chair.
CHAIRPERSON: ...(indistinct - no microphone).
INTERPRETER: The speaker's mike.
CHAIRPERSON: ... can't we get to that house, because that's the application you refer to.
MR SHAI: Yes, Mr Chairman, I was going to actually ask him the following
Do you recall a house belonging to Lavi Majola?
MR NTOKA: That is correct, Chairperson.
MR SHAI: Was Mr Majola a member of the IFP?
MR NTOKA: That is correct, Chairperson.
MR SHAI: How did you ascertain whether Majola was an IFP member or not?
MR NTOKA: He was working at the municipal office at our township. During IFP rallies he would be present.
MR SHAI: And why did you decide to burn the house down?
MR NTOKA: On that particular day during the day, there were members of the IFP at his house and then next to his house the members of Inkatha stoned a bus, then thereafter we decided to burn the house.
MR SHAI: And that a certain person by the surname Ndala?
MR NTOKA: That is my neighbour.
MR SHAI: Was he also a member of the IFP?
MR NTOKA: That is correct, Chairperson, he was a member of the IFP.
MR SHAI: And how did you ascertain that?
MR NTOKA: I used to see him wearing IFP T-shirts and members of the IFP used to stay at his place.
MR SHAI: And Myaba's house?
MR NTOKA: It was Inkatha's base.
MR SHAI: And how did you come to the conclusion that it was an Inkatha base?
MR NTOKA: I was staying near all those people I've mentioned, so I knew.
MR SHAI: Was it frequented by members of the IFP?
MR NTOKA: That is correct, Chairperson.
INTERPRETER: Just a moment, Chairperson.
MR KOOPEDI: Chairperson, if I may interpose whilst the applicant is taking his medication. I wish to ask for a very short adjournment of the matter, the Committee perhaps need not move. With regards to the discussion prior to commencing now, in connection with whether there's a new application being brought in, I must say that I believe that if I could be given this short adjournment to discuss the matter with my learned friend. There is a possibility of having the hearings curtailed.
And to be frank about it, in another matter I argued extensively on a similar matter and we were denied to proceed simply because it was a new matter. Advocate Sigodi was sitting in that matter. And it's my belief that the facts are similar and we might have such a situation. But my request is, if it is possible, if I could perhaps discuss the matter with my learned friend and my colleagues, perhaps this could help.
JUDGE MOTATA: I suppose that again reference should be had to page 13, it's an undated letter to the TRC, and have regard to paragraph 1.3, where plus-minus 20 dwelling houses were burnt. We don't know when that was done. Probably that might be of assistance if the Chair so grants you the short adjournment.
CHAIRPERSON: I'm going to grant you the adjournment, but I want to point out to you that on page 5 of the bundle, 9(a)(i) refers to public violence. Never mind the letters and the other documents, the applicant has verbally indicated what he intended. So in your deliberations bear that in mind also.
We'll adjourn for five to ten minutes.
COMMITTEE ADJOURNS
ON RESUMPTION
MR NTOKA: (s.u.o.)
MR RICHARD: I've discussed the position with Mrs Majola, and her instructions are that I make an application for a ruling that the arson, for want of a collective phrase, be excluded. The argument is very short and simple. Yes, an application was made in terms of Section 18, on the prescribed form, but that application as appears from page 2 of the bundle, paragraph 10(b), in answer to the question
"Your justification for regarding such acts, omissions or offences associated with a political object"
there the applicant answers by saying:
"The Magistrate told us that he charges us under the public violence, which I do not know what it is the meaning of that. That is how I was sentenced."
Now in his application no facts are detailed, outlining the burning of any houses, let alone the three that come in, in subsequent correspondence. Section 20(1)(b) is plain, the act omission or offence to which the application relates is an act associated - sorry, I'm reading the wrong section, one which constitutes an offence or delict. In the application itself, there's nothing but the vaguest of possible - and I stress the word possible, information that the burning of houses might have been contemplated, but there are certainly no facts establishing that as an act for which amnesty is applied for.
My submission is in the circumstances, that as the applicant failed to satisfy the Act of Parliament, this Committee is not competent to consider an amnesty application for the burning of the three houses or other houses. As the Committee pleases.
CHAIRPERSON: Mr Richard, when this hearing commenced you indicated to us that you represent the victims.
MR RICHARD: That's correct.
CHAIRPERSON: Was Mrs Majola one of the victims whom you represented, at the beginning of this hearing?
MR RICHARD: Yes, ...(indistinct - no microphone)
CHAIRPERSON: Now you indicated to us that it was your instructions that you're not opposing the fact that the applicant was a member of a particular organisation, that whatever he did in terms of his application was done for political reasons etcetera. Do you recall that?
MR RICHARD: That is quite correct.
CHAIRPERSON: If that be so and the attack on the Majola home was to be excluded, why is Mrs Majola regarded as a victim then? ...(indistinct - no microphone) ... in respect of the burning of houses. Why ...(indistinct - no microphone)
MR RICHARD: Our reply. Thank you, Chair. When instructions were taken and discussed, the question was: "Do you oppose Mr Ntoka's application?" And the various criteria of what an application must cover and establish were discussed. Then the instructions were we accept what I outlined earlier this morning, however during the adjournment there were further discussions and I asked my client whether in the light of discussions, whether she had any comment to make, and I've now acted on her instructions.
CHAIRPERSON: ...(indistinct) would you agree that even your client accepted or was at least under the impression that one of the matters for which the applicant makes application for amnesty is the burning of houses? Otherwise she would not regard herself as a victim.
MR RICHARD: She does regard herself as a victim because it's beyond all dispute that her house was burnt and she ended up losing everything.
CHAIRPERSON: ...(indistinct - no microphone) ... in terms of the Act in this application, and she regards herself as a victim.
MR RICHARD: Correct.
CHAIRPERSON: So if she herself regarded herself as a victim, why is there any dispute about what the applicant said what he meant or what he intended to mean when he raised the issue of public violence - even though he didn't really understand the concept? Because if the burning of her house was excluded, then she is not a victim in terms of the Act, then what's she doing here?
MR RICHARD: Had the applicant complied with the Act of Parliament, by timeously providing proper particulars, then the application would be properly before the Committee.
CHAIRPERSON: You see, there's where you make a fundamental mistake. If you look at the Act which you yourself referred to, upon receipt of an application, the Commission, in this case the Committee, the Amnesty Committee, is entitled to ask for further particulars. The request for those further particulars and the furnishing of such further particulars are not constrained by time, in terms of the Act, is that not so?
MR RICHARD: That is quite correct, but then ...(intervention)
CHAIRPERSON: Now, doesn't that imply that if a certain application is made, which may not be very clear, that those investigating the application are entitled then to ask further particulars, from which may flow certain particulars, and therefore when such particulars are produced at a particular time, the applicant cannot be penalised and be said to have provided those particulars out of time. Would you agree?
MR RICHARD: I would agree if it was a situation where an applicant in very general and imprecise terms described an act, then the Commission through its staff investigates what is being said and gets particulars, which pin it down to a sufficient precision to make it investigatable and considerable. But then I take the alternative where if the applicant applies for amnesty for the murder of A, but subsequently - which isn't the case in this one, thinks about the murder of Z, no matter how the murder of Z is put into the bundle and the record, if it was not referred to at all properly in the initial application, can it be brought in?
CHAIRPERSON: And especially when it was his intention to refer to Z and not Y.
MR RICHARD: That is a ...(intervention)
CHAIRPERSON: Then the application of Z must fall away. Do I understand you correctly?
MR RICHARD: Correct.
CHAIRPERSON: Proceed.
MR RICHARD: In this case, if one takes what I read from page 2, when the applicant states
"The Magistrate told us that he charges us under the public violence."
the entire context of that comment is in the death of the unknown person in Ratanda, it's not connected to the burning of any houses. Quite correctly, the Commission's staff investigated further and introduced into the bundle the fact that houses were burnt, but those facts which are introduced are not connected with anything that is said at paragraph 10(b) on page 2, or on any other references in the paragraphs.
When preparing, I think I referred to page - I work the question "When did the question of the arson enter into the debate?" From my construction it entered into the discussion somewhere around November/December '98, and are we talking about one incident which is continuous and continuing? The house was separate in time and venue to the murder, and I don't believe that the burning of the houses can be connected to the murder, they might have been part of the activities in the township.
Now I believe that if the applicant had intended to make the nexus, it would have been necessary for him to do something more than what he did in paragraph 10(b), which is confine it immediately to the act of the burning, the petrol and the killing. I'll leave it in the Committee's hands.
CHAIRPERSON: What is your application?
MR RICHARD: My application is that it be ruled that insofar as the amnesty application refers to the burnings of various houses, that part of the application be invalid, for non-compliance. Whether it's the three houses mentioned in the bundle, or other houses, it doesn't matter.
JUDGE MOTATA: Then you wouldn't stand - Mrs Majola wouldn't then be before us properly, and you wouldn't be having instructions in respect of that if we were to exclude that.
MR RICHARD: If you exclude it, I leave.
JUDGE MOTATA: But further than that, that you've look at the Act, does it say or empower the Committee or Panel sitting in a hearing, say to the Panel, a person must enumerate acts or that upon full disclosure having been made by an applicant, the Committee or Panel can now say "we grant you amnesty in respect of X, Y, Z". Or that if we've heard all the evidence, and here we must bear in mind we are dealing with an illiterate person, who depended on other people to fill in his application and because it did not make sense to the Committee, or the person referred to, then they require further information and it transpires from that information that there is the burning of houses, does it preclude the Committee in that respect that they cannot hear evidence in respect of that?
MR RICHARD: My argument, Chair, is that if it was intended that a person wanting amnesty was able to say "I want amnesty for what I did as part of this organisation during this wide period", but then not give any particulars at all, but because of information that the Commission may or may not have in its files, ...(indistinct) applications, then as a result of the Commission's activities the particular applicant can be connected to a list of acts, that would be a bad application, and in this case that is what is happening.
JUDGE MOTATA: Even though he did not understand what the Magistrate meant by "public violence", and the Committee was able to get somebody who would explain that precisely and he comes back and says "this is what I meant" - because if you can look at the bundle, page 11, that's when the Committee started requesting further particulars, and in response thereto, on page 12 and 13, he supplied further particulars and said: "Plus-minus 20 houses", and I don't have in my possession further correspondence from the Amnesty, but it would appear they sent somebody out, and he says "no, in respect of the burning of houses I can remember Majola, Ndala and Myaba", he's expanding on that, and are we saying when the further particulars were requested they are constrained by time? Because here we must be aware we are not dealing with the rules of Court, we are dealing with a process that is here geared to bring about reconciliation. And upon that, Mrs Majola becomes a victim if we were to grant amnesty, we would refer Mrs Majola to the R&R. And that comes back to my question that if you were not brought here by the mention of Majola, why is she here?
MR RICHARD: She is here because the applicant mentioned the burning of her house in a reply which appears at page 12, which must be after the request of 27 November '98. Now if you look at the letter of 27 November '98, page 11, there's no reference to anything beyond what appears in pages 1 to 10 ...(intervention)
JUDGE MOTATA: No, no, read the request on page 11.
MR RICHARD: ...(indistinct - no microphone)
JUDGE MOTATA: Yes, it says
"We kindly request you to conduct an interview with the above-named applicants in the following respects
Names and addresses of the 20 people he operated with in his cell. Find the addresses of Jacob Moremi. Further addresses of people implicated, those who gave them orders to kill. Also the names and addresses of the victims and the next-of-kin."
CHAIRPERSON: Well let's take it further. The further particulars were already in by that date, because these questions were asked as a result of what was contained in the further particulars.
JUDGE MOTATA: And the person who conducted the interview, they gave him this amnesty application.
MR RICHARD: I stand corrected, but my interpretation is, you have your application dated 8 May '97 ...(intervention)
JUDGE MOTATA: ...(indistinct - no microphone) ... whatever date is placed there, this was faxed on the 15th February 1996.
MR RICHARD: I stand corrected as I said, because I'm looking at my copies at pages 12 to 14, I don't have any indication of any fax dates.
JUDGE MOTATA: No, I meant as far as 10 goes.
CHAIRPERSON: Page 10?
JUDGE MOTATA: As far as page 10 goes.
MR RICHARD: Page 10 is 15 February '96. I don't have any problem with that, but whether there was any further particulars between February '96 and page 12, I don't believe there's anything to evidence that there were.
CHAIRPERSON: Well why must the most negative interpretation be visited in the applicant, why is it not possible that an undated script of further particulars was in fact timeous? If that is your argument.
MR RICHARD: My argument is ex the bundle.
CHAIRPERSON: Well the bundle doesn't give you a date, why is it necessary to make the most negative interpretation of it?
MR RICHARD: The logic is apparent that page - the letter being at page 12, wouldn't have come into existence, but for 11.
CHAIRPERSON: Maybe we've got different concepts of logic.
ADV SIGODI: Page 11 says
"Find the attached amnesty application, as well as the letter
for further particulars of the above-named applicant."
MR RICHARD: I don't have a copy of a letter for further particulars.
CHAIRPERSON: Neither do we, but that's not the point. The point of the matter is that the author of this letter may for her or his own reasons have chosen not to attach any further particulars to it. But if you look at the questions as pointed out to you by Judge Motata, it is difficult to resist the conclusion that these questions arise from further particulars. Otherwise there would be no information on which to base such questions.
MR RICHARD: Thank you, Chair.
MACHINE SWITCHED OFF
ON RESUMPTION
CHAIRPERSON: ... in the initial application.
MR RICHARD: My submission, which may support my application that strongly, is that if on the application being given a generous and benevolent reading, it can be logically be held that the act for which the applicant in the end applies for amnesty can be connected with the application, the applicant should be given every assistance, however, the expectations of the Act of Parliament also have to be given meaning at the same time.
In this particular matter I would believe the connection between the initial application and what we have before us now is tenuous and the Act, if applied on a strict reading, the result would be that the arsons would be excluded. However, again to assist the Committee, not necessarily to argue my application - and I think as an officer of the Court, that is my function, if the Committee believes that there is a sufficient nexus between the arsons and the initial applications, the applicant should be given the benefit of the doubt, but for the sake of the application I've argued it from the other side of the room on other occasions.
CHAIRPERSON: Mr Koopedi, have you got anything to add to that argument?
MR KOOPEDI: No, nothing to add, Chairperson, thanks.
R U L I N G
CHAIRPERSON: Well the application to disregard the inclusion of the offences that arise from the burning of the houses, the Majola home, Ndala home and Myaba home, is refused.
MR RICHARD: As the Committee pleases.
MR SHAI: Mr Chairperson, may I continue with the questions I was posing? May I continue?
CHAIRPERSON: Very well.
MR SHAI: Now Sir, with regard to the burning of the houses, can you recall the people you were with when such houses were burnt?
MR NTOKA: We were residents.
MR SHAI: Now were they burnt on the same day or different days?
MR NTOKA: At different dates, Chairperson.
MR SHAI: And you were targeting only IFP houses?
MR NTOKA: That is correct, Chairperson.
MR SHAI: Now was there any personal financial gain as far as these activities that you have mentioned were concerned? In other words, is there anything that you gained personally in the form of finance?
MR NTOKA: I did not receive any benefit, Chairperson.
MR SHAI: What were you doing them for?
MR NTOKA: Because we were in a conflict situation.
MR SHAI: Now is there anything that you'd like to say to the people who were involved as victims in these activities?
MR NTOKA: That is correct, Chairperson, there's something I want to say.
MR SHAI: What is it you'd like to say?
MR NTOKA: To those people whose houses were burnt, I ask for forgiveness.
MR SHAI: And to the unknown next-of-kin of the deceased?
MR NTOKA: Even to them I request forgiveness, Chairperson.
MR SHAI: Now the firearms that you were using, they were obviously unlicensed, is that correct?
MR NTOKA: That is correct, Chairperson, it was an unlicensed firearm.
MR SHAI: Can you recall how many you had in your unit, or in the group that you were working with?
MR NTOKA: We had many firearms.
MR SHAI: Mr Chair, that will be the case for the applicant.
NO FURTHER QUESTIONS BY MR SHAI
CROSS-EXAMINATION BY MR KOOPEDI: Thank you, Chairperson.
Mr Ntoka, you said in your evidence that you received your instructions from May Mguni, did I hear you correct?
MR NTOKA: That is correct, Chairperson.
MR KOOPEDI: Can one then say that he was - or perhaps let me rephrase, did you have any other Commander other than May Mguni?
MR NTOKA: Yes.
MR KOOPEDI: I need to understand this correctly, did you belong to one unit or to different units, or in this one unit, if you belonged in one unit, there was more than one Commander?
MR NTOKA: We had many units.
MR KOOPEDI: So you belonged to many units, not to one?
MR NTOKA: That is correct, Chairperson, I used to work for different units.
MR KOOPEDI: Do you recall how many units?
MR NTOKA: I was instructed by many people, I was not instructed by one person, and then at that time I was still a young man.
MR KOOPEDI: So you don't recall how many units you belonged to.
MR NTOKA: I don't remember, Chairperson, there were many.
MR KOOPEDI: Could they have been five or ten or twenty?
MR NTOKA: More than five, Chairperson.
MR KOOPEDI: Now these units, did each one have its own Commander, or there would be Commanders in one unit?
MR NTOKA: We had leaders. We had ANC leaders at our branch. We were not doing things on our own initiatives.
MR KOOPEDI: Now let's perhaps start with the issue of the 21st, you know, where this unknown person was killed. Was it the one unit which was patrolling and which ended up attacking this person, or did you have many units patrolling and subsequently attacking and killing this person?
MR NTOKA: When we killed, we murdered this person, I was a member of the unit which I usually patrolled with.
MR KOOPEDI: So is your answer that there was one unit that attacked and killed this person?
MR NTOKA: Yes, that is correct, Chairperson, it was only one unit, together with some members of the community.
MR KOOPEDI: Now who was the Commander of this unit?
MR NTOKA: The Commander was John Paki, who has since died.
MR KOOPEDI: Okay. Now on the attacks or the burning of houses, which unit was involved? Was it this unit, the one that was involved in the killing of this person, or were you now acting with different units?
MR NTOKA: Some units were merged together and again we were in addition with the members of the community when we were burning these houses.
MR KOOPEDI: If you say you had merged, this unit, did you - what I'm trying to establish is, was there a single person who was said to be a Commander, or you know you had many Commanders in this merged unit?
MR NTOKA: We had many Commanders.
MR KOOPEDI: And did you receive instructions from all the Commanders, or were you instructed at all times by one of the Commanders?
MR NTOKA: Do you mean when we were burning houses or when we were murdering this person?
MR KOOPEDI: When the houses ...(intervention)
CHAIRPERSON: Mr Koopedi, for whom do you appear?
MR KOOPEDI: Chairperson, I have a list that I'm referring to, I need to look at it. I was asked this question when the proceedings began. If you could bear with me, Chairperson. I appear for Obed Nkosi, Chairperson. I also appear Gina Mbele. I also appear for Busisiwe Modisakeng, formerly known as Ngwenya. I also appear for Moeti Sibilwana. I also appear for Ashley Radebe. I appear for Mzwake Mdebele, and also Ndaba Khumalo, Shadrack Mofokeng, William Radebe, Juda Zameni and Mgangeni Machu. Thank you.
CHAIRPERSON: Are all these people implicated by the applicant?
MR KOOPEDI: That is indeed so, Chairperson, these are the people implicated by the applicant.
CHAIRPERSON: In which offences?
MR KOOPEDI: The applicant states that he was instructed, Chairperson, and that in all the actions that he acted, he was acting as a person who is instructed. I pointed out at the beginning of the hearing that the people whom I represent deny having instructed him. His general, the applicant's general assertion, or as I understand it, is that in all the actions he was involved, the killing of the unknown person and the arsons, these people were responsible in that he was acting under their orders.
CHAIRPERSON: But where does he say that any one of these people gave him instructions?
MR KOOPEDI: If you could bear with me, Chair. In the further - part of it emerges on page 19, Chairperson, at the top of it. The typed version is page 16, Chairperson, paragraph 5 thereof. On page 12 also, Chairperson.
CHAIRPERSON: The typed version thereof ...(indistinct - no microphone)
MR KOOPEDI: Paragraph?
CHAIRPERSON: ...(indistinct - no microphone)
MR KOOPEDI: Thank you, Chairperson.
CHAIRPERSON: ... gave him instructions. I don't know how paragraph 5 on page 16 - they are stated as being implicated people, but I don't know to what extent they're implicated. I'm asking these questions because I'm just trying to follow your line of questioning. I'm not too sure I follow it properly.
MR KOOPEDI: Perhaps if I could proceed because I was on the verge of ...(intervention)
CHAIRPERSON: ...(indistinct - no microphone)
MR KOOPEDI: Yes. And maybe that would make things clear. Thank you, Chairperson.
Now Mr Ntoka, I put it to you that the people whom you say in your - the people whom you refer to in the affidavits and the letters that you wrote to the Truth Commission, the Amnesty Committee, they did not give you the instructions as you allege. What is your response?
MR NTOKA: Those people I have listed were my leaders and they gave me instructions. All of them who you have listed were my leaders and gave me instructions.
CHAIRPERSON: On different occasions?
MR NTOKA: That is correct, Chairperson.
CHAIRPERSON: Carry on.
MR KOOPEDI: I put it to you further that not only did they not give you instructions, but at a certain point you were sanctioned, you were called to order because you belonged to an uncontrollable group. Your response?
MR NTOKA: You said they called me?
MR KOOPEDI: Yes, you were called - the people you've implicated were at that stage the leaders in the area, is that correct?
MR NTOKA: They were members of the ANC, and again they were members of the Civic Association ...(intervention)
CHAIRPERSON: No, were you called to a meeting to be disciplined? - by these very people.
MR NTOKA: I was never called to a meeting. All these things which I did I did not do them for myself.
CHAIRPERSON: No man look, listen to me nicely. It's been put to you that during that period in which these offences were committed, you were called to a gathering or a meeting by these people who were your leaders, to discipline you.
MR NTOKA: I was never called. I hear this for the first time here.
MR KOOPEDI: I put it to you further that not only were you sanctioned, but because you had persisted in your actions you received no legal assistance as other people would have received legal assistance if they were arrested. - from these leaders. Your response to that?
MR NTOKA: I am saying I did these not for my own benefit. I was never called to a meeting for discipline.
MR KOOPEDI: Chairperson, I have no further questions for this witness.
NO FURTHER QUESTIONS BY MR KOOPEDI
CROSS-EXAMINATION BY MR RICHARD: Thank you, Chairperson.
Mr Ntoka, I would like you to turn to page 13 of the bundle, and if you would kindly go down to the last paragraph on that page. Now who is Mr Balala?
MR NTOKA: It is at a certain house called "White House", where we got our instructions. That person is normally there.
MR RICHARD: And how often would you go to this place called the White House, during 1992?
MR NTOKA: Many times.
MR RICHARD: Would it be once a day, three times a day, once a week? How often is many times?
MR NTOKA: We'll go there, even up to dusk we'll be there.
MR RICHARD: Now you would say
"We met every day at about 20H00/22H00, for instructions and orders."
That means every day ...(intervention)
CHAIRPERSON: Mr Richard, can I just interpose here? I'm sorry to do so, but did I understand you correctly when we started this hearing, that you indicated that your instructions were not to oppose the application?
MR RICHARD: I did put one rider to that about the instructions he received.
CHAIRPERSON: Okay, ja, you did.
MR RICHARD: I did.
Now there you say every day, is that correct?
MR NTOKA: That is correct, Chairperson, we met every day.
MR RICHARD: And then you list Mr May Mguni, Ms Bessie Ngwenya, Mr Obed Nkosi and the late John Paki, is that correct? As the persons who gave you instructions and orders. Are they are the people who gave you the instructions and orders to do various things on different occasions?
MR NTOKA: That is correct, Chairperson, they gave me instructions.
MR RICHARD: Now tell me, were they all sitting together when you got instructions, or two or three of them, or different ones on different occasions? Or was it a group meeting?
MR NTOKA: All of them would assemble and then give me instructions.
MR RICHARD: And tell me, did you ever do any particular thing or commit any act which they did not instruct you to do?
MR NTOKA: No, Chairperson. We'd start with them, then from - I did not do these things on my own initiative, I did nothing which I did not do without their instructions.
MR RICHARD: Now from page 15 we know that Mr Pat Ndala's house in Blesbok Street was burnt down, from what you say - the impression I get is that you would have this meeting with these various people at the White House and would discuss the instructions that were going to be given, discuss what should be done, is that not correct?
MR NTOKA: May you please repeat the question.
MR RICHARD: You would meet at the White House with these people who have been listen in the paragraph on page 13, there would also be other people there, and you would discuss what should or shouldn't be done, is that not correct?
MR NTOKA: When we burnt Ndala's house there was a conflict on that particular day, members of the IFP entered the township and started shooting, then we received instructions.
MR RICHARD: You gave a useful answer but not an answer to my question. My question was, you would have these meetings at the White House, at which - I stress, all these people would be present, yourself and other people.
MR NTOKA: That is correct, Chairperson, we would enter into meetings with those people.
MR RICHARD: Then what would happen at the meeting, to be quick, is you would discuss things in Ratanda and Heidelberg and the surrounding areas and make decisions as to what should be done, and get orders and instructions, is that not correct?
MR NTOKA: That is correct, Chairperson.
MR RICHARD: From your last answer, which wasn't in reply to the question I put, you said in relation to Mr Ndala's house you got instructions, is that not correct?
MR NTOKA: That is correct, Chairperson.
MR RICHARD: And it's obvious that you got those instructions from a meeting at the White House.
MR NTOKA: That is correct, Chairperson, we received instructions from the White House.
MR RICHARD: Now my very specific question is, who gave you the instruction to burn Mr Ndala's house?
MR NTOKA: That is May Mguni.
MR RICHARD: Then why - you were present at the meeting, so you should know why, was it decided that Mr Ndala's house should be burnt? What information did you have?
MR NTOKA: On that particular day when Mr Ndala's house was burnt, IFP attacked the township. They shot my friend's father. There was a conflict on that particular day.
MR RICHARD: My question is, why was Mr Ndala's house chosen?
MR NTOKA: We did not burn that house only, we burnt various houses which belonged to IFP members. There was a conflict on that particular day.
MR RICHARD: I'm still asking on what information did you decide that specifically Mr Ndala's house should be burnt.
CHAIRPERSON: Let me ask you, did you choose specific IFP members' houses, or was the decision that generally IFP houses ...(indistinct - no microphone)
MR NTOKA: The decision was - there was a conflict on that particular day, Chairperson.
CHAIRPERSON: I'm asking you, were there specific homes of members of the IFP in the area chosen, or was there a general decision that the homes of members of the IFP must be burnt?
MR NTOKA: We were instructed to burn houses which belonged to IFP members on that particular day.
MR RICHARD: Now the question I then ask again, is on what basis did you decide that - I'll wait a moment while you take your medicine.
INTERPRETER: Yes, you may continue.
MR RICHARD: Thank you. Now who decided that Mr Ndala's - I'm using Mr Ndala's house as an example, when you went there to that area who said "Let's got to Mr Ndala's house", was it Mr Mguni, like you said earlier, or was it one of you in the street?
MR NTOKA: We had a list in our possession.
CHAIRPERSON: A list of what?
MR NTOKA: A list of houses which were supposed to be burnt and which belonged to IFP members.
MR RICHARD: Who gave you that list, who prepared that list?
INTERPRETER: My apologies, Chairperson.
MR NTOKA: I knew that the Ndalas were members of the IFP because they were my neighbours, and the list I received it from the White House.
MR RICHARD: My question was very, very simple, who gave you the list?
MR NTOKA: I received it there on that particular day.
MR RICHARD: Who gave you the list?
MR NTOKA: That is May Mguni.
MR RICHARD: Tell me, was Mr Albert Nkosi with Mr Mguni when you got the list?
MR NTOKA: That is correct, Chairperson.
MR RICHARD: And my next question is, was Mrs Majola and Mr Myaba's names also on the list?
MR NTOKA: Yes, they appeared on the list because we burnt them on the same day. Other houses were burnt in the afternoon and other houses were burnt in the evening.
MR RICHARD: Now do you know who prepared that list?
MR NTOKA: I don't know, Chairperson.
MR RICHARD: Isn't it obvious that it's this collection of people, Mr May Mguni, Mrs Bessie Ngwenya ...(intervention)
CHAIRPERSON: Is it obvious?
MR RICHARD: Did they not prepare that list?
CHAIRPERSON: He just said he doesn't know.
MR RICHARD: Then I'll ask the question slightly differently. Was there ever any discussion as to whose names should be put on a list?
MR NTOKA: May you please repeat your question.
MR RICHARD: Well you went to many meetings in the White House, with these various people who gave you instructions, were you ever asked to give names and reasons as to why people's names should be put on that list?
MR NTOKA: I saw a list, but I knew people who were supposed to be victims.
MR RICHARD: How did you know?
MR NTOKA: The Ndala's are my neighbours and even Myaba is my neighbour.
MR RICHARD: And Mrs Majola?
MR NTOKA: The distance between my house and their house is not too far when where I was staying and I knew that they were members of the Inkatha, and some members of Inkatha used to frequent that place.
MR RICHARD: Now did you know of any particular problems between Mr Obed Nkosi and Mrs Lavi Majola?
CHAIRPERSON: Personal problems?
MR NTOKA: What kind of problem are you referring to?
MR RICHARD: It doesn't matter which problems, but interpersonal conflict of any description.
CHAIRPERSON: Well it's important to know whether you're talking about political problems or personal problems. Obviously there was a political problem between the two.
MR RICHARD: What Mrs Majola will say, if called as a witness, is that at one stage she was employed at the Ratanda local authority and was a member of the ANC. Her job at the council was to run the debtors section, which meant that she would have a list of people who hadn't paid for their water or electricity, and she was then accused by, I think, Mr Nkosi, of being responsible for having people's supplies cut, and he periodically phoned her to harass her and say that he would set the SDUs on her and when she complained to the ANC and requested protection, it wasn't forthcoming, and it was at that stage that she crossed the floor and joined the IFP.
Did you know of those facts that I've just outlined to the Committee? Yes or no?
MR NTOKA: I did not know the problem between Mrs Majola and Nkosi. I don't know that history about electricity or water cut or of any conflict between the two.
MR RICHARD: However her name was put on the list and you did what you were told.
MR NTOKA: Yes, her house was burnt. I don't know the conflict between her and Mr Nkosi.
MR RICHARD: No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
MR SHAI: No re-exam, Mr Chair.
NO RE-EXAMINATION BY MR SHAI
MS MTANGA: I have no questions, Chairperson.
NO QUESTIONS BY MS MTANGA
CHAIRPERSON: Mr Ntoka, do you know the name of the person that was killed that day?
MR NTOKA: I don't know his identity, Chairperson.
CHAIRPERSON: Now, as I understand your evidence on particular day members of the community and their homes were attacked by whom you described as members of the IFP, correct?
MR NTOKA: That is correct, Chairperson, IFP members attacked members of the community.
CHAIRPERSON: As a result there was a gathering after which a list was drafted.
MR NTOKA: Yes, there was a meeting arranged where members of the community attended there.
CHAIRPERSON: And this list was produced, was that on the same day as the IFP attack on the residents?
MR NTOKA: I did not see the list, but I heard that there was a list.
CHAIRPERSON: Yes, but was that meeting held on the same day as the attack by the IFP?
MR NTOKA: Yes, we had other meetings before by members of the community. We had many meetings with members of the community.
CHAIRPERSON: Look, it's not a difficult question. This list, was it drawn up or drafted that same day as the IFP members attacked the community?
MR NTOKA: That is correct, Chairperson.
CHAIRPERSON: Yes. And the burning of these houses, did that occur the same day this list was produced?
MR NTOKA: It did not happen on that particular day. Other houses were already burnt then.
CHAIRPERSON: Now, the houses of Majola, Ndala and Myaba, were they burnt on the same day?
MR NTOKA: Majola and Myaba's houses were burnt on that particular day, though I don't remember about the date.
CHAIRPERSON: And Ndala?
MR NTOKA: It was burnt on the same day.
CHAIRPERSON: So all three were burnt on the same day?
MR NTOKA: That is correct, Chairperson.
MR RICHARD: Was this part of an attack on the IFP in general, of lawlessness and group activity?
MR NTOKA: That is correct, Chairperson, IFP attacked. And then, other people have died who participated in the burning of these houses. These three houses were burnt on the same day and other people who took part in the burning of the houses have since died.
CHAIRPERSON: You say the list was provided by the leadership in the area.
MR NTOKA: That is correct, Chairperson.
CHAIRPERSON: Now do I understand you correctly, all these things that you did you did as a member of the Youth League, under the instructions and command of your leadership?
MR NTOKA: That is correct, I was a member of the ANC Youth League, then I was given instructions.
CHAIRPERSON: Now tell me, you've been in jail since 1993 - '94, correct?
MR NTOKA: I was arrested in 1993, on the 9th of June, then I was convicted in 1994.
CHAIRPERSON: But you were in jail since at least 1994.
MR NTOKA: That is correct, Chairperson, I was convicted in May.
CHAIRPERSON: And it sound to me that when you went into jail this conflict between the ANC and the membership of IFP, still existed in the area.
MR NTOKA: It had subsided at that time.
CHAIRPERSON: What do you feel about the fact that it has subsided?
MR NTOKA: I have wild dreams, I have nightmares.
CHAIRPERSON: But are you happy that the conflict has now subsided as you know?
MR NTOKA: That is correct, Chairperson, I'm happy that the conflict has subsided, then I request that they should forgive me.
CHAIRPERSON: What would your attitude be if I told you that it is completely finished now?
MR NTOKA: I'll be happy, Chairperson.
CHAIRPERSON: Are you able to fit into that society now, irrespective of your neighbour being a member of the IFP or the ANC or whoever?
MR NTOKA: Yes, I'll be able to live in peace.
CHAIRPERSON: Are you able to contribute to the peace in the area?
MR NTOKA: That is correct, Chairperson, I will be able to play a role if I may be employed, especially in the ANC.
CHAIRPERSON: Excuse me, I didn't get that answer.
MR NTOKA: Especially if I can be employed within the ANC.
CHAIRPERSON: And if you're not employed?
MR NTOKA: I'll be tested, though I've been tested.
CHAIRPERSON: What do you mean you'll be tested?
MR NTOKA: I'll be behind time.
CHAIRPERSON: No, I'm asking you the question in the context of the conflict. To me it doesn't matter if you're unemployed or employed. I'm asking you the question whether you can live in that society without contributing to the madness that existed at that time.
MR NTOKA: I'll be a changed person and then I'll be able to fit in with my friends. If I may have the employment ...(intervention)
CHAIRPERSON: Is it subject to your being employed? What if you don't get employed, what happens then?
MR NTOKA: With what would I live, Chairperson?
CHAIRPERSON: No, but it - does that mean you're going to continue with your activities as you did before you went to jail, if you don't get a job?
MR NTOKA: I would not even get near to that kind of activities, Chairperson.
CHAIRPERSON: So what has a job have to do with it?
INTERPRETER: There is a misunderstanding, Chairperson, the applicant doesn't understand exactly what you're saying.
CHAIRPERSON: I asked you if you can fit into the society and the impression I get from your answer is yes, provided I'm employed in the ANC. My question to you is, what has the employment got to do with it?
MR NTOKA: I am not able to survive, Chairperson, without employment.
CHAIRPERSON: Ja, that may be so, a lot of us can't survive, but does that mean we're going to go back to that burning of houses and killing people? - because you haven't got a job.
MR NTOKA: No, Chairperson, I will not continue with what I did during that time.
CHAIRPERSON: Tell me, you know some of us allowed ourselves to be used and manipulated by politics, not so long ago, are you able to resist that now?
MR NTOKA: I don't want to participate, Chairperson, in politics.
CHAIRPERSON: No, but you did. I'm asking you if you can resist that now, because one can easily be manipulated by it and engage in such activities.
MR NTOKA: I would not allow myself to be used, Chairperson.
CHAIRPERSON: Yes, thank you. ...(indistinct - no microphone)
MR SHAI: No other witnesses.
CHAIRPERSON: Mr Koopedi.
MR KOOPEDI: Chairperson, no, the implicated persons have elected not to give evidence.
CHAIRPERSON: Have they elected to come and attend the hearing?
MR KOOPEDI: They are present, Chairperson.
MR RICHARD: I can confirm she doesn't want to speak.
WITNESS EXCUSED
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ON RESUMPTION
MR RICHARD ADDRESSES: Chairperson, may I make a short address, it's not an argument, on behalf of the victims, which is directed at Mr Ntoka.
The persons whose houses were burnt and possessions destroyed wish to say it's very difficult for them to do what they do, and that is to extend their forgiveness to you. They understand and have insight into the fact that at the time you did what you did as the instrument of people above you, who got you to do awful things, and they forgive you and your party for what happened during that time. They not oppose your application and accept that you have satisfied both the technical requirements of the Act, and the substantive merits. Thank you, Chair.
CHAIRPERSON: Mr Koopedi, have you anything to say?
MR KOOPEDI IN ARGUMENT: Is the Chair asking for an address? Chair, a very short one if I may.
Chairperson, Honourable Committee Members, the applicant before you was undoubtedly a member of the ANC Youth League in Ratanga. I believe it is common cause that this applicant acted or participated in incidents which were politically motivated. I also believe that this applicant appears not to have received any personal or financial gain. However, I am unable to understand why, and in fact these are my instructions, my clients are also unable to understand why was it necessary for the applicant to implicate them. My instructions are that this applicant belonged to some kind of a breakaway group, who were overzealous in the activities they took part in ...(intervention)
CHAIRPERSON: Mr Koopedi, let me stop you there. On what basis can we rely on what you say?
MR KOOPEDI: If I am allowed to go on, Chairperson, perhaps you will be able to see that ...(intervention)
CHAIRPERSON: No, we haven't got evidence to that effect. So no matter how persuasive you may argue, we haven't got evidence to rely on what you say.
MR KOOPEDI: Chairperson, I asked or I made an assertion to the applicant that he was sanctioned for his activities. He said "no". I went ahead and said, because he had belonged to this breakaway group, when he was arrested he did not even receive legal assistance when everyone else received legal assistance if they were arrested for this. He kept quiet. To me this means that he conceded that fact.
CHAIRPERSON: Carry on.
MR KOOPEDI: And basically that was the point we wanted to make, Chairperson, that the implicated persons, much as they do not oppose his amnesty, however deny vehemently that they ever gave him any such instructions. I would perhaps refer to just one or two contradictory responses we got from this applicant, and perhaps the Committee will use that to determine whether full disclosure was given to them.
This applicant says he did not see this list, the list which had names of Inkatha members, he did not see this list, he only heard about it. Earlier on he had said he had found the list at the White House and further that May Mguni actually handed over the list and when he did so he was in the presence of Obed, Obed Nkosi. I find it strange that a person who had never seen a list would in the same breath, have seen a list being handed over. I also find it strange, Chairperson, that the applicant says by June '93, that's when he was arrested, he did not know of anything called SDUs until he went to prison.
My submission is that, and I believe that it's common cause, that SDUs existed by then and in particular in the East Rand, and it is for reasons only known to the applicant that he elects not to know SDUs, because if he knew about SDUs, he would know that they were proper command structures, he would know that you wouldn't have 10 or 20 people commanding you to do a particular action. Thank you, Chairperson.
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ON RESUMPTION
CHAIRPERSON: ... adjourn. The whole hearing is adjourned then. We're finished with the roll?
MS MTANGA: Yes, Chairperson.
CHAIRPERSON: Yes, before we adjourn I would like to thank all those who made the hearing a success, in particular the people who made the preparations, the Logistics Officer, the interpreters, the technicians, and in particular the public that took an interest in these matters. It is to be hoped that in some way the people can reconcile with our history and with time, be in a position to forgive one another. I'm not suggesting that it's easy to do, but I hope it can be done.
We will adjourn now.
HEARING ADJOURNS
