MR NDOU: Thank you Honourable Chairperson, Honourable Members, I now call the case of Nndweleni Mulaudzi. It's the same matter, it's the second applicant pertaining to the same facts.
CHAIRPERSON: Which language would you prefer to use?
MR MULAUDZI: I will prefer to use Venda.
NNDWELENI MULAUDZI: (sworn states)
EXAMINATION BY MR NDOU: Thank you Mr Chairperson.
Mr Mulaudzi, you have made application before this Committee and I have your form here which you've used to apply for amnesty. Now what is your date of birth?
MR MULAUDZI: I was born in 1973 on the 4th May.
MR NDOU: I see. I see here in your application that your date of birth is reflected as the 5th April 1973?
MR MULAUDZI: No, it was during May, it was on the 5th of the 4th month.
MR NDOU: So you were born on the 5th of the 4th month 1973?
INTERPRETER: He is saying he was born on the 4th May.
CHAIRPERSON: Not the 5th April?
MR MULAUDZI: Yes.
MR NDOU: I see. Are you able to explain why in your application ...(intervention)
CHAIRPERSON: It's obvious that is swopped.
MR NDOU: Thank you Mr Chairperson. Now I see here that in your application you've applied for amnesty in respect of murder alone, is it right?
MR MULAUDZI: Yes that is correct.
MR NDOU: Is that the only offence for which you were convicted?
MR MULAUDZI: It was four counts in all but they were all made to run, to be grouped into murder, they were all grouped into a murder case.
MR NDOU: No, just listen to the question. For which offences were you convicted?
MR MULAUDZI: It's murder.
MR NDOU: Murder in respect of which victim?
MR MULAUDZI: Mr Maphaha and Mr Madadzhe.
MR NDOU: So were you convicted of both murders?
MR MULAUDZI: Yes it's true.
MR NDOU: I see and you now come to seek amnesty in respect of the two murders, is that right?
MR MULAUDZI: Yes it's true.
MR NDOU: Now would you explain to the Committee as to how it came about that you murdered these two victims?
ADV DE JAGER: Sorry, he is not applying for arson and he's not applying for any assaults?
MR NDOU: Did you understand the question?
MR MULAUDZI: I'm also applying for both of them simply because when I was charged it was charged as murder only although I did commit these other things but it was in murder only.
MR NDOU: Yes, what I've asked you is what offences were you convicted?
MR MULAUDZI: It's murder, arson and assault, it's two murders, arson and assault.
MR NDOU: And you've now come to seek amnesty in respect of all of those four charges?
MR MULAUDZI: Yes, yes it's true.
ADV DE JAGER: Now I'm afraid we can't deal with it in that way because he didn't apply for assault and he didn't apply for arson in his form. He can't apply now, he should have applied at the time.
MR MULAUDZI: What I can explain is this. All these counts were grouped together and they were seen as murder, meaning that arson and assault were included in that murder. That is how I've put it.
CHAIRPERSON: Mr Ndou, tell me something, the arson he is talking about, is that the burning of the house when one of the murders were committed?
MR NDOU: That is so.
CHAIRPERSON: Whose house?
MR MULAUDZI: Mr Maphaha.
ADV DE JAGER: So it was part and parcel of the same incident?
MR NDOU: That is so.
CHAIRPERSON: The assault that we speak about is something that is independent of the two murders?
MR NDOU: That is so.
CHAIRPERSON: That one is separate.
MR NDOU: That's why I wanted him just to explain on which offence he was convicted. Thank you Mr Chairperson.
Now would you explain to this Committee as to how it came about that you were involved in all these activities?
CHAIRPERSON: Well, let me put it this way, you were in this hearing when Mr Munyai gave evidence?
MR MULAUDZI: Yes.
CHAIRPERSON: Do you agree with what he says in respect of what occurred at those two incidents?
MR MULAUDZI: Yes I agree.
CHAIRPERSON: Is there anything you want to add?
MR MULAUDZI: No, no there's nothing.
CHAIRPERSON: Is there anything you want to say that you don't agree with what he said in respect of what actually happened at the houses?
MR MULAUDZI: I disagree with nothing, I agree with everything.
CHAIRPERSON: Alright. Now let us take Madadzhe. What did you do in that incident?
MR MULAUDZI: In the case of Mr Madadzhe, I participated in him being dragged out and I'm the person who lit the house in which he was dragged into and then burnt the house in where he was dragged into.
CHAIRPERSON: Mr Madadzhe?
MR MULAUDZI: Yes.
CHAIRPERSON: Yes and anything else in between?
MR MULAUDZI: There is nothing which I did except lighting the house, the hut.
CHAIRPERSON: I'm not talking about the house, I'm talking about what you did to him. You dragged him out of the house, did you do anything else to him?
MR MULAUDZI: When the deceased was dragged out while he was assaulted by sticks I was behind but when he was dragged to another hut I was there and then I took the matches and lit it. In the case of the people who dragged him out of the house in the first place I didn't see that because it was during the night and there were so many people.
CHAIRPERSON: Is that all you did to Mr Madadzhe?
MR MULAUDZI: Yes, it's only that.
CHAIRPERSON: When you dragged him out or helped drag him out, you knew he was going to be killed?
MR MULAUDZI: When he was dragged out he was dragged by the people who were in front and I was still behind by then so I was in the middle of a group which was in front and the other group which was behind me.
CHAIRPERSON: But you knew what he's been dragged out for?
He was going to be killed?
MR MULAUDZI: Yes.
CHAIRPERSON: And you agreed with it?
MR MULAUDZI: Yes I agree with that.
CHAIRPERSON: And you were party of the group that went there to do that?
MR MULAUDZI: Yes I was one of the people who went there.
CHAIRPERSON: In order to see to it that Mr Madadzhe gets killed?
MR MULAUDZI: Yes.
CHAIRPERSON: Now let's talk about Mr Maphaha. What did you do to him during that incident?
MR MULAUDZI: In the house of Maphaha, on our arrival there, when the group reach the house I was the first person to break the windows of the house belonging to Mr Maphaha. When Maphaha got out of the house I didn't see how he escaped because I was on the under window or western window and he was running to the eastern side and then I broke the windows in the western side of his house and I looked through the window to see who is inside, if there was anybody inside the house. Then we realised that Mr Maphaha has escaped and is now running away and another group started to chase him and he was running next to the house of a certain Reverend called Mr Chivas. It's there where he was assaulted but then unfortunately I didn't arrive and then I remained here back watching the house or in guard, guarding the house.
CHAIRPERSON: Was that how he was eventually burnt?
MR MULAUDZI: Only the window panes were broken.
CHAIRPERSON: Mr Ndou when you indicated that there's an application in respect of arson in respect of whose house was that?
MR NDOU: It was in respect of - I think it was just a different name, it was supposed to be Madadzhe.
CHAIRPERSON: And the previous witness? I always thought that it was Mr Maphaha's house that was being burnt in respect of the arson application. Did I misunderstand it or what is the position?
MR NDOU: I thought at that stage that the house that was burnt down, the other one was just damaged by the mob.
CHAIRPERSON: Now whose house was that?
MR NDOU: Maphaha house was damaged.
CHAIRPERSON: Now you didn't do anything to Mr Maphaha?
MR MULAUDZI: On the deceased I have done nothing even when he was lying on the ground.
CHAIRPERSON: You knew what the group was going there for?
MR MULAUDZI: Yes.
CHAIRPERSON: And did you agree with that?
MR MULAUDZI: Yes, I agree with that.
CHAIRPERSON: And you considered yourself party to that murder and to attack his house?
MR MULAUDZI: Could you please repeat your question?
CHAIRPERSON: You considered yourself party to the killing of Mr Maphaha and the attack on his house.
MR MULAUDZI: Yes I see myself as part of the group because I also participated.
CHAIRPERSON: Now can you speak English?
MR MULAUDZI: No.
CHAIRPERSON: I just want you to deal with this. In your application, paragraph 9(a)(i) you were asked to say what act you committed in respect of the offences for which you make application. There you say you assaulted the deceased with a stick. At best for you the deceased is the plural there. I just want you to explain even if it was one of the deceased that was referred to there. Explain that to me if you say in your evidence that you never hit anybody?
MR MULAUDZI: What happened is that on the deceased I didn't manage to reach him but I'm the only person who broke the window panes.
CHAIRPERSON: I'm not asking that, I'm asking to explain in your application form, you say that
"I assaulted the deceased with a stick"
MR MULAUDZI: It means maybe I didn't manage to put in the right order but what is true is that on the deceased I never assaulted the deceased but I broke the window panes of the house belonging to the deceased.
CHAIRPERSON: No, I'm talking about any of the deceased. There's two deceased.
MR MULAUDZI: The deceased, Mr Madadzhe, while he was thrown in the house once by the stick on the leg but then he was already dead.
CHAIRPERSON: Why did you hit him with a stick then if he's already dead?
MR MULAUDZI: Because I was expected to participate seeing that we were doing the same thing so I should also participate in the other way as the others are doing or were doing.
CHAIRPERSON: Yes Mr Ndou?
MR NDOU: That is all.
NO FURTHER QUESTIONS BY MR NDOU
CROSS-EXAMINATION BY MR VAN RENSBURG: Thank you Mr Chairperson.
Mr Mulaudzi, where on this application form of yours is it indicated that you're making application for amnesty for a murder?
MR MULAUDZI: Could you please repeat the question?
MR VAN RENSBURG: I will repeat the question. I want you to show me from the amnesty application form where it is indicated that you're making application for murder that you have committed?
ADV DE JAGER: Could we perhaps try and solve something before we - can you read?
MR MULAUDZI: No.
ADV DE JAGER: Who explained the form to you?
MR MULAUDZI: It's my colleagues who were working together jointly with the Committee.
ADV DE JAGER: So you didn't fill in the form and you don't know what's been written there because you can't read and check it?
MR MULAUDZI: All in all it can also be myself because I'm the person who explained how this case came about even if I'm unable to read.
ADV DE JAGER: No, I understand that. Did you sign the form or did anybody else sign the form?
MR MULAUDZI: I signed it.
ADV DE JAGER: Can you write?
MR MULAUDZI: Yes I can write but I'm unable to read English.
ADV DE JAGER: Alright, thank you.
MR VAN RENSBURG: Thank you Mr Chairperson.
So you don't know anything what is included in your application form?
MR MULAUDZI: I know some of, not the contents, it is talking about the murder case and arson and assault.
MR VAN RENSBURG: So how do you know what is in the form if you can't read English?
MR MULAUDZI: ...(inaudible) that they indicated that I've committed the murder, arson and assault, GBH crimes.
MR VAN RENSBURG: That's not what I'm asking you, I'm asking you if you can't read, how can you know what is included in the form?
MR MULAUDZI: I can know if I can call a person who is illiterate who can read and explain the contents of the form.
CHAIRPERSON: Look here, we're not asking for some smart answers. It seems to me that you can't say that you know what the contents are, now let's say that, it's nothing to be ashamed of, do you understand? You're not able to say what the contents of the form is so let's leave it like that. We won't hold it against you for not knowing.
MR VAN RENSBURG: Now if I asked you for instance to look at paragraph 9(a)(i) of page 1 of your application form will you be able to tell us what is written down there, what acts, omissions or offences you committed or not? Will you be able to tell us or not? Look at the form please?
MR MULAUDZI: Because I'm unable to read I cannot tell what's written there. If maybe somebody could read to me and ask me whether I know these things.
MR VAN RENSBURG: Okay. Now I think you agree with me that this form and the information that it contains is very important for your amnesty application, is that not so?
MR MULAUDZI: Yes that is correct.
CHAIRPERSON: Who helped you fill this form in?
MR MULAUDZI: Mr Abraham Ruali.
CHAIRPERSON: Who is he?
MR MULAUDZI: Somebody who was assisting us in this matter.
CHAIRPERSON: Is he an attorney?
MR MULAUDZI: No, he's not an attorney.
CHAIRPERSON: What does he do, where does he work.
MR MULAUDZI: He's a mayor.
CHAIRPERSON: He's a mayor?
MR MULAUDZI: He's working in Messina, he's a mayor in Messina.
CHAIRPERSON: At the time when he filled this form in for you or helped you what was he?
MR MULAUDZI: By then he was a mayor, by the time he assisted us in doing these things he was a mayor.
CHAIRPERSON: And as I understand your evidence you're not exactly sure what was filled in here?
MR MULAUDZI: I'm sure of the contents but the only problem is that I cannot read.
CHAIRPERSON: No you can't be sure of the contents because you don't know what is in there, you can't read? You've got to take the word of somebody else if they tell you what is in there. Not so? But you yourself cannot say what is in there?
MR MULAUDZI: Yes it's true.
CHAIRPERSON: Yes and I don't mean to be insulting, there's nothing to be ashamed of. So can you explain if there is something wrong in this statement, your application, you are unable to tell us why it's so because you never filled the form in, it was filled in on your behalf, is that correct?
MR MULAUDZI: Yes it's correct but he filled in when he was explaining to him how these things came about because he was not aware of my crimes, then I explained everything to him.
CHAIRPERSON: But if he recorded it incorrectly you can't explain it, not so?
MR MULAUDZI: So because I'm blind simply meaning I cannot read, if there's something incorrect then maybe he would have identified this and this is wrong is this and this is in this way then I would have explained to him that this is not true.
ADV DE JAGER: Can you tell us why did you kill these two people, why did you assist or associate in killing these people, what was your reason?
MR MULAUDZI: The main idea he raised when we were told about the meeting in the playing ground, what was discussed there is when we were discussing on the issue that the Venda country is not well governed because the people who are in the higher offices in the government were people who were co-operating with witches so for us to read our objective of making the government to fall is for us to sit down and find out that how we can make this government fall which is supported by the witches. It's then that we decided to kill or to target the people who are supporting those people in the government.
CHAIRPERSON: In this case, witches?
MR MULAUDZI: Yes, we targeted the witches.
MR VAN RENSBURG: Thank you Mr Chairperson.
Can you read any language or is it just English that you can't read?
MR MULAUDZI: I can read Venda and then it's English that I cannot read or I'm unable to read.
MR VAN RENSBURG: What is your highest academic qualification?
MR MULAUDZI: Standard 3.
MR VAN RENSBURG: Did you tell that person who helped you to complete the application form, did you tell him that you can't read English?
MR MULAUDZI: Yes I did.
CHAIRPERSON: That's probably why he needed assistance.
MR VAN RENSBURG: Did you tell that person that you assaulted one of the deceased persons with a stick?
MR MULAUDZI: Yes I did.
MR VAN RENSBURG: Is that the truth, did you hit one of the deceased with a stick?
MR MULAUDZI: Yes it is true?
MR VAN RENSBURG: Who?
MR MULAUDZI: Mr Madadzhe.
MR VAN RENSBURG: At what stage did you hit Mr Madadzhe with a stick?
MR MULAUDZI: I beat him while he was being dragged into the house.
MR VAN RENSBURG: Now why didn't - or I put it to you in your evidence in chief you did not testify to that effect?
MR MULAUDZI: I did mention here that I beat while he was being dragged into the house.
CHAIRPERSON: You said you hit him once after he'd died?
MR MULAUDZI: Yes, while he was being dragged into the house, that is what I'm still explaining.
CHAIRPERSON: After he died?
MR MULAUDZI: Yes.
MR VAN RENSBURG: So when he was dragged he was already dead, is that correct?
MR MULAUDZI: Yes, seemingly he was dead because he was dead and no eyelashing and he was no longer speaking.
MR VAN RENSBURG: The question is, was he dead or was he weak?
MR MULAUDZI: I think he was dead.
MR VAN RENSBURG: What makes you think he was dead at that stage when he was dragged?
MR MULAUDZI: He was no longer breathing and there was no eyelashing and he was so weak.
MR VAN RENSBURG: Do you think it's an offence to hit a dead person with a stick?
MR MULAUDZI: Yes I think it's a very big offence because it make you to seem as if you have participated in the killing of that person.
MR VAN RENSBURG: Did you tell that person who wrote down on the form that you set the house alight?
MR MULAUDZI: Yes I did.
MR VAN RENSBURG: Did he write it down?
MR MULAUDZI: I'm not sure.
MR VAN RENSBURG: Now I put it to you that that person did not write it down, do you agree with me or do you accept that?
MR MULAUDZI: Okay, I accept that.
MR VAN RENSBURG: Do you have any reason to think why that person would have written down only some of the things that you said and not the others?
MR MULAUDZI: Maybe I can try and explain that the thing which makes this thing difficult is that the ticket I received from jail is that is was written that I've committed murder and those other charges were incorporated in that murder that is why maybe while he was writing he doesn't include arson and assault.
MR VAN RENSBURG: No, that is not the answer to the question. What I want to know is why would a person that wants to help you only write down half of the things you're saying and leave out the others.
CHAIRPERSON: Let me help you, I don't think you can really say why somebody else did certain things but what is going to be suggested to you is that in all probability it's not contained in this application form because you did not tell him. What do you say about that?
MR MULAUDZI: I have tried to explain this thing. I explained to him that it's murder, arson and then assault.
CHAIRPERSON: I know you did say so. If I suggest to you that that can't be true because otherwise he would have written it in, have you got any comment about that?
MR MULAUDZI: Could you please repeat your question?
CHAIRPERSON: That because it is not contained in your statement you did not tell him, do you agree with me or not?
MR MULAUDZI: No, I don't agree.
MR VAN RENSBURG: Now is there anything else that you've told this person that you have done that he also did not write down?
CHAIRPERSON: He can't say, he doesn't ...(indistinct)
MR VAN RENSBURG: Yes perhaps I can rephrase that. If we accept that that person who wanted to help you only wrote down that you assaulted the person with a stick and nothing else what else except for the fact that you set the house alight, did you tell that person which he did not write down?
CHAIRPERSON: He's telling the same story.
ADV DE JAGER: Mr van Rensburg, I think it's common cause that he's been convicted. He is serving a sentence. There must have been common purpose at least to kill the two deceased. If that's the position and he's applying for amnesty for killing the two deceased whether he was convicted or not and he's telling us now that he's applying for that, it's a matter of argument whether it's a good application or not but that's a legal argument. You could argue that he didn't apply for those offences and therefore we can't grant it. He's only mentioning it now but that's an argument he can't give us the answer on, it's a legal argument that you'll have to address and we'll have to decide but apart from that it seems to me as though it's sort of common cause that he was present, that he's associated himself with the killings whether he in fact hit the body of a deceased person or hit him just before he'd been certified as dead I don't know but he associated himself with the killing and I think the only thing is why did he kill or why did he associate himself, was it associated with any political purpose or was it something else?
MR VAN RENSBURG: Yes I think that question has already been put to him by the Chairperson, there's just one aspect I want to clarify and then I will be finished.
Did you tell your legal representative that you don't know what is on this application form?
MR MULAUDZI: No I did not explain.
MR VAN RENSBURG: But why not?
MR MULAUDZI: It's because I just think that everything inside there is what I've mentioned.
MR VAN RENSBURG: I don't follow your answer?
CHAIRPERSON: He says he didn't find it necessary to indicate to his representative that it may or may not be a problem because he assumed that everything as contained in there was in order.
MR VAN RENSBURG: Thank you Mr Chairperson.
Can I ask you in the annexures which is annexed to your application it is mentioned that one of the objects was or the main object was to make the area ungovernable? Do you agree with that, that that was one of the reasons why you acted in this way?
MR MULAUDZI: I agree.
MR VAN RENSBURG: Okay can I just again ask you to explain how would killing these persons from a list make the area ungovernable?
MR MULAUDZI: I can explain.
MR VAN RENSBURG: Please?
MR MULAUDZI: As I've mentioned when I started that here in Venda in the past government it was in turmoil, the officials were working together with the witches and the people in high offices used to get mutis from the Sangomas and the witches.
MR VAN RENSBURG: Yes and how would by killing them the area would become ungovernable?
MR MULAUDZI: To kill the people like witches will assist that the high official, if we kill the witches which the high official get the mutis from them, it left that the power that they were using which they were getting from the witch they will no longer get it.
CHAIRPERSON: You cut off their muti, you'll stop the muti going to the politicians therefore the politicians wouldn't be able to govern the country and therefore the country would be ungovernable? In actual fact the witches were running the country.
MR VAN RENSBURG: I don't understand that but I'll leave it there. I don't think I have further questions, thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR VAN RENSBURG
CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson.
Mr Mulaudzi, there's just one aspect that I'd like clarity on. You stated that your main purpose was to make Venda ungovernable. Did that have anything to do with apartheid?
MR MULAUDZI: Yes.
MS PATEL: Can you explain to us what, can you draw the link for us, how did you understand that?
MR MULAUDZI: They linked when we found that the people who were Whites in the high positions and the Blacks who were next to the Whites who were working in the higher posts used to protect themselves by the muti so that the Whites must not see the evil deeds of these Black people so that they remain as if they are working in order or in a proper way.
MS PATEL: And what has that got to do with apartheid?
MR MULAUDZI: It shows us that with apartheid here when the Whites segregate the Blacks by not considering the cases which we used to lodge in the high offices, that's all.
MS PATEL: Sorry, I don't understand. Can you explain that a bit further?
MR MULAUDZI: I've explained that with apartheid how it linked with those things, it linked because Whites who are co-operating with Blacks are the people who again, I mean these Whites, take us who would take grievances to the offices and then the Whites chased us saying that they don't want to hear things from Blacks and then they said go and discuss this in the chief's kraal.
CHAIRPERSON: Did you support apartheid?
MR MULAUDZI: No I never supported it.
CHAIRPERSON: Now who was actually in real terms running Venda, who were the bosses of Venda? The actual bosses.
MR MULAUDZI: I think it was Reveira because ...(intervention)
CHAIRPERSON: Who was he?
MR MULAUDZI: He was working for the Venda community as president.
CHAIRPERSON: Ja but where did he take orders or don't you know?
MR MULAUDZI: The people who used to give him orders I don't know.
MS PATEL: Thank you Honourable Chairperson, it's obvious we're not going to take it much further than that. I have no further questions, thank you.
NO FURTHER QUESTIONS BY MS PATEL
CHAIRPERSON: Mr Ndou, have you got any questions?
MR NDOU: None thank you Mr Chairperson.
ADV SIGODI: At the trial how many of you were accused of this crime?
MR MULAUDZI: The first time we were five and then only two were found guilty.
ADV SIGODI: In other words the others were acquitted of this crime, the other three?
MR MULAUDZI: Yes.
CHAIRPERSON: Do you believe in this alleged power of witches?
MR MULAUDZI: Yes.
CHAIRPERSON: Do you agree with killing children for the muti?
MR MULAUDZI: Yes I agree on that.
CHAIRPERSON: And what happens to your child tomorrow, you will agree?
MR MULAUDZI: If it's my child tomorrow, I think if it happened like that something that I will sit down and discuss with the government to find out what the present government is doing if such things are still happening because in the previous apartheid government when we used to launch the complaints in the government we tended to be sjambokked, teargassed and everything.
CHAIRPERSON: I asked you a question, if you believe in it yourself, do you believe it works?
MR MULAUDZI: I believe it works.
CHAIRPERSON: Will you resort to such things yourself, you want a job you go to a witch and he or she says you must kill and child and eat whatever, you'll do it?
MR MULAUDZI: No, that is what I won't believe in doing in having muti in my pockets. I don't want muti in my possession because I think that muti will make a person to be a fool or that the person will look like he or she is mad.
CHAIRPERSON: Because I ask this question very seriously because it seems to me that people believe in this and they'll resort to such things when it doesn't affect them themselves but tomorrow when it's their own children what is the position? And yet those children are innocent but you say you won't resort to that?
MR MULAUDZI: You mean that the sangoma must tell me to go and commit ritual to a child or a witch gave me say medicine to go do this and this then I don't agree with that because I think I'll be making pains to other people here in this country.
CHAIRPERSON: Now is it still happening?
MR MULAUDZI: Up to now where I'm staying I'm not sure whether it's still happening because it's long that I've been in prison.
CHAIRPERSON: Now there's been Venda was made ungovernable, there was a change of government, there was re-corporation, what is the position then about witches?
MR MULAUDZI: Up to now I think because I'm in prison I think when listening to people from outside they are no longer crying like before just like they are being killed like that or so but I think now things have improved.
CHAIRPERSON: Yes, thank you.
WITNESS EXCUSED
MR NDOU: Thank you Honourable Chairperson. I see it's now almost quarter to one, I was going to start with the matter with three applicants but in this one we have prepared affidavits.
CHAIRPERSON: Before we carry on to the next matter have we got any argument on this one? Before you carry on, let us hear if Mr van Rensburg has any issues to raise?
MR VAN RENSBURG: I have no witnesses to lead. Would you like me to address you?
CHAIRPERSON: Before then I'd just like to hear from Ms Patel if she - have you got any witnesses Ms Patel?
MS PATEL: No I don't, thank you Honourable Chairperson.
CHAIRPERSON: Mr van Rensburg, I'd appreciate you arguing first, it may save us time.
MR VAN RENSBURG IN ARGUMENT: Thank you Mr Chairperson.
CHAIRPERSON: I don't think you need argue on the question of the application in respect of assault, that application as far as we are concerned has never been made.
MR VAN RENSBURG: Yes and I immediately also would like to argue that that also goes for the arson of the second applicant.
CHAIRPERSON: Well maybe you need to argue that because I think it can be strongly argued that in the events leading to the murder of one of the accused, his house was attacked and burnt in the same schedule of events and perhaps it can be considered as one event and therefore all crimes that flow from that event may be covered in the application for murder. I'll tell you why, that when people haven't got a legal background completes such application forms it's not to be expected of them to know what's small or how to deal with different crimes and elements of crimes and therefore perhaps we have a sympathetic attitude towards that kind of thing as opposed to an assault charge where it's a separate incident and where nothing of that incident has been mentioned in the application form we can't even have a generous view like that in that case.
MR VAN RENSBURG: Yes, if I can address you on that specific question then, I think we've also got to take into account that the forms and the annexures thereto was certainly designed to give persons who are not legally trained as much as possible opportunity to come forward and be open in their application and not in order to mislead them there are no difficult questions asked in this form. If it is stipulated in specifically paragraph 9(a)(i) that the acts, omissions or offences must be written down, I cannot in my wildest dreams imagine that if a person has set alight another person's house whilst he murdered him at the same time would just write down "I assaulted deceased with a stick".
CHAIRPERSON: I think you are quite correct when you're talking about normal circumstances but we've got to take cognisance that we have people who in educational terms are special victims of apartheid. In fact I think one of them said they couldn't read English. We are not to know or we cannot know, neither of us, as to what went through the mind of the person recording the instructions onto this and I'm loath to penalise the applicant in respect of what someone else had to write maybe incorrectly. But I take your point, I think it's a valid criticism.
MR VAN RENSBURG: If we can continue then, perhaps if we are already in the wrong order, if I can continue with the second applicant with your permission, Mr Chairperson?
Yes it is so that the second applicant has testified that he cannot read English and therefore does not, can confirm the contents of his application form. We only have his word to test that on but I would suggest that in a normal, if we take into account the normal circumstances that will take place herein which would be that his advocate would go or his legal representative would go through the form with him during the consultation, I cannot accept that it is just a simple fact that the second applicant did not understand or did not know what is contained in this form. We've had absolutely no indication from his legal representative that there was a problem as we normally could expect in the circumstances because normally if you consult with your client going through the form it would have been put to him, you wrote down here:
"I assaulted the deceased with a stick"
"Is that all you did?"
And then the whole story would have come out. This is not what happened in this instance. I don't think we can just explain the whole evasiveness of the second applicant to take responsibility for the omissions in his statement just on the fact that he cannot read English. The version that he raised that he did not even mention the fact that he cannot read English to his legal representative is to me farfetched version as I've explain in the normal sequence of events, it would have come under the attention of the legal representative that this man cannot understand what is written in his forms during the consultation and in those circumstances there was an onus on him to have informed the ...(intervention)
ADV DE JAGER: That may be so but is it really a relevant factor as far as the crime, the offence is concerned, whether he could read English or whether he couldn't understand it or whether he told his legal representative? He should make a full disclosure of the relevant facts as far as the offences are concerned and can we say let's look at his evidence, didn't he tell us what his participation was and can we say he's not speaking the truth as far as that is concerned?
MR VAN RENSBURG: Yes I can certainly not argue on the evidence that is before this hearing that his version regarding his involvement should be totally dismissed, I cannot go that far but I think we are dealing here with the question can his credibility in general be implicated or prejudiced by the fact that there's a difference between his application form and his evidence. If we argue that in the ...(intervention)
ADV DE JAGER: Suppose we accept that he doesn't tell the truth about his application form can we then reject his evidence on the material issues as far as offence is concerned?
MR VAN RENSBURG: Yes again I can't argue that we can in total reject his evidence, I am merely trying to argue that there must be some factors that seriously ...(intervention)
ADV DE JAGER: Be careful in considering whether he is speaking the truth.
MR VAN RENSBURG: Prejudicing his credibility, that is the only point I'm trying to make regarding that, yes.
Regarding then the motivation if we stay with the second applicant for the moment, I'm not going to argue or waste this hearings time on that matter, I'd merely like to suggest that at no stage did the second applicant convince or was convincing in his answers when he was asked regarding the motive for these killings. He certainly did not make a logical connection between the killing of the witches and the area or Venda becoming ungovernable. He certainly gave no logical answer to make the connection how the real enemy, namely apartheid, could be fought by killing the witches and in that sense I would just argue that he did not persuade this hearing in my view that the killings was in fact politically motivated. That argument would by and large also holds true for the first applicant who in my view was an even weaker witness than the second applicant. It is clear from his evidence that he blatantly lied on his form, his application form, at least regarding to his age and who knows what else. It is clear that he was the leader, the chairman of the meeting and it is therefore unlikely that his actual participation in the killing and the burning was so small. I would suggest that as I've put to him that we have here again a situation where he is trying to mitigate his own involvement in the whole incident and it is also illustrated by the fact that he totally omitted to take this hearing into his confidence regarding the assault, GBH, that took place on that specific day.
The first applicant was also not convincing in his explanation as to how the killing of the witches would fulfil any political aim to say the least and in that sense I would conclude that his motivation for this killing was in fact not political, it was probably witchcraft related and the anti-witchcraft feeling was high at that stage which I also plan to illustrate with evidence in a later case but it is also important to take into consideration at this stage the aspect that the learned Chairperson has raised, namely that the killing of the witches has actually not stopped immediately after the election took place and therefore we've got to deduct that it was not politically motivated that it is some other reasons, cultural reasons or purely fear, jealousy, all these reasons could have played a role and I suggest that the evidence rather a point into that direction mainly because the witnesses one after the other struggled to make the connection between the political aim and the killing of the witches.
To sum up then, I'm of the opinion that these two persons, the applicants, and that is my instructions to request such a finding from the hearing should not qualify for the amnesty as they have applied for. That is all, thank you Mr Chairperson.
MS PATEL IN ARGUMENT: Thank you Honourable Chairperson.
My submission in respect of the question of the application for arson in respect of the second applicant, my submission in that regard is very different to that of my learned colleague. I do believe that it sufficiently related to the main act for which the applicant has applied and that it therefore should be considered. However, in respect of the assault, GBH, my submission is it's an entirely separate incident and cannot fall within the ambit of what he is applying for, for what we are able to consider here today.
Regarding my learned colleagues submissions in respect of both applicants not having complied with the criteria of either full disclosure or political motivation, I agree with him wholeheartedly in respect of those submissions. I do not believe that either of the applicants have any political understanding or if there is that it is very limited. Also that their political understanding did not at all relate to any of the conflicts of the past, it merely related to a dissatisfaction with an administration at the time which they could not link or they had no understanding of the link between that and apartheid and therefore the conflicts of the past and my submission is that on that ground that they do not fall within the political objective within the Act.
CHAIRPERSON: Can I ask you a question because you raised it now? If what they did was directed only at the Venda government then it's an offence or offences that occurred outside South Africa and then where do we stand?
MS PATEL: With respect, Honourable Chairperson, I do not agree with that technical understanding of the manner in which the apartheid regime chose to divide the country. Post part of the negotiations - let me rephrase, the question of the TBVC States, at the time of negotiation there was no question of those States not being formally a part of the South African territory.
CHAIRPERSON: I accept the political realities of the time. As I understand your submission that these two particular applicants had no understanding of the apartheid effects on this country and in so saying you say that it should be refused? From that submission flows the questions, if that be the case and they didn't link it to apartheid, which means South Africa, and they directed it at the government illegitimate as it may be, of Venda, how competent are we to deal with the application or is the application a good application? I raised the question because of your submission, I don't necessarily agree with the submission but if you are correct, we find your submissions correct, then of course the question I posed to you then follows?
MS PATEL: Perhaps I should re-explain the basis of my submission, Honourable Chairperson, from my submission I am trying to say and I don't think I have stated it clearly enough, what I'm trying to say is that the applicants have raised their political motivation to the extent that they are dissatisfied with the particular administration. Now that administration in my understanding or in the lack of their understanding could hold true today so that extent it's not related to apartheid and to the past, that argument that they have raised in terms of their objections to the administration can be raised at any place, at any time.
ADV DE JAGER: That government was opposed to re-incorporation into the R.S.A. and wouldn't that link that government in the R.S.A. and to the conflicts of the past?
MS PATEL: Certainly they stated at some stage that the government was opposed to re-incorporation but they didn't explain or they didn't go further and state that that was the reason for their conduct that at the end of the day that is what they really sought, that they sought re-incorporation. Their problem that they sought to solve was the manner in which the Venda government officials were managing Venda itself and not a question of whether re-incorporation was going to improve that situation or not and that is the link, that is how they chose to draw the link between the officials and the witches, it never went further than the witches, the officials and the apartheid regime or the question of re-incorporation?
CHAIRPERSON: But what is being posed to you is that your submission is that their political motives never extended to apartheid because they didn't understand it, they didn't know how to link what they were doing to actual apartheid and I think you forget the following, that they say that they wanted incorporation into South Africa, not under apartheid, rather a new government but the apartheid structures were being propped up and this I say on interpretation of their evidence. They didn't actually say it in so many words, propped up by the lackeys of the National government in the Venda government who maintained their power with the assistance of witches and therefore they targeted witches. What do you say about that?
MS PATEL: With respect, Honourable Chairperson, I'm not sure from what evidence we are able to draw the inference that they drew that link between the apartheid government using the Venda government officials to then control and that is my difficulty with their testimony.
ADV DE JAGER: Could I perhaps pose this to you? Section 22(a) summarised would read as follows
"A supporter of a publicly known political organisation or liberation movement in support of such movement bona fide in furtherance of a political struggle waged by such movement against the State or any form of State or another publicly known organisation."
Wouldn't this be against a form of State if they'd directed it against the government of Venda and wouldn't that then be part of the conflicts of the past in terms of the definition?
CHAIRPERSON: It has to be, Ms Patel?
MS PATEL: Yes I have to concede, yes. Then I have to concede.
CHAIRPERSON: ...(inaudible)
MS PATEL: No thank you, Honourable Chairperson.
CHAIRPERSON: Mr Ndou, we don't need to hear you unless you want to specifically address us on something special?
MR NDOU: I would just be ...(indistinct), I won't take the matter further.
CHAIRPERSON: Thank you. We will reserve this judgement and we will adjourn for lunch till 2 o'clock.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Ms Patel, which one are we doing now?
MS PATEL: Thank you Honourable Chairperson, the next matter on the roll is according to your list number 2, it involves the applicants Nimoloyde and Molovetsi and the victims Masithi, Netshivhumbe, Mafulani, Ralulimi and Nemandandila.
CHAIRPERSON: Mr Ndou, you represent the applicants?
MR NDOU: ...(inaudible)
CHAIRPERSON: That Mrs Masithi in this matter, is that perhaps the same Mrs Masithi in the previous matter?
MR NDOU: No, in fact in the previous matter it was a different person altogether.
CHAIRPERSON: Who have we now here in front of us?
MR NDOU: In fact all in all there are two applicants but the first applicant, Mamelodi, although he has been made aware of these proceedings has decided not to come because he has already been released from prison.
CHAIRPERSON: You're withdrawing that matter?
MR NDOU: As far as they are concerned because they've made him aware and if he's not turning up we'll have to withdraw the application.
CHAIRPERSON: Have you any specific instructions?
MR NDOU: I don't have specific instructions from him himself.
CHAIRPERSON: Ms Patel have we got proof that the notices were properly served?
MS PATEL: Honourable Chairperson, we had an arrangement with Mr Laruli who is in fact the co-ordinator and we agreed with him that the notices would be given to him and that they would then be properly served.
CHAIRPERSON: Now what is the position with Mr Nemoloydi?
MS PATEL: It's the first that I hear that there's a problem with him. Mr Laruli also instructed Mr Ndou from what I understand to appear for all the applicants in this matter.
CHAIRPERSON: How soon can we find out about whether this notice has been properly served?
MS PATEL: I can make a phone call now.
CHAIRPERSON: I think we'd better adjourn then to find out what's happened.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Ms Patel?
MS PATEL: Thank you Honourable Chairperson, I've made the enquiries, unfortunately it appears that this applicant has been released from prison, his whereabouts according to Mr Laruli are unknown to him. He unfortunately failed to inform us that that applicant had been released. We are accordingly not in a position to serve the notice on him. I would accordingly in the circumstances request that we postpone this matter in order to give us an opportunity to at least try to get hold of him.
CHAIRPERSON: Any comments?
MR NDOU: Nothing thank you Chairperson.
CHAIRPERSON: What is the position of this applicant, is he in custody?
MR NDOU: This one is in custody.
CHAIRPERSON: Were they sentenced together?
MR NDOU: Yes they were.
CHAIRPERSON: Have you any idea why the one is out and not this one?
MR NDOU: Well the other one, depending on what he was convicted of, he was sentenced I think to ten years and because of parole he was released this year.
CHAIRPERSON: Is he on parole?
MR NDOU: Yes.
CHAIRPERSON: Well that's going to be a help, if he's on parole then Correctional Services ought to be helpful. Mr van Rensburg, have you got an interest in this matter?
MR VAN RENSBURG: Yes indeed I do have.
CHAIRPERSON: Have you got any comments to make about the postponement?
MR VAN RENSBURG: No I have no comments I can't object to that.
CHAIRPERSON: Thank you for your approach. Then this matter is postponed sine die. Mr Ndou, will you explain to your client it's upsetting and it's inconvenient as it may be to him there's really not much we could do in the circumstances. We'll try to speed it up, I can't make any promises. Thank you.
MR NDOU: Thank you. In fact perhaps just to bring this to the Committee's attention, this applicant yesterday as we understood from one of the victims, he did come here but apparently said he was no longer interested in continuing with the thing but he didn't come to tell me that he was not interested and that's why we just assumed that he ...(intervention)
CHAIRPERSON: But we know that he wasn't given a notice and we can't take the chance of somebody coming to say that you know, you didn't give me a chance to place my case if you never gave me a notice? Had he received a notice and not reacted I would have continued.
MR NDOU: But that's why we're trying to take precautions. We have a similar matter where two of them have been released. We've sent people now to try and get them to be here tomorrow just to avoid that situation. If they're here they're able to tell me that I shall withdraw their applications if they're not interested. Thank you.
CHAIRPERSON: ...(inaudible)
MS PATEL: Yes there is, Honourable Chairperson, it's according to your list number 9, it's the murder of France Khomogwe and the name of the applicant is Mashamba.
CHAIRPERSON: Mr Ndou, the gentleman that was - an attempt can be made to get him here tomorrow as well and maybe we get lucky and maybe we can help this applicant out sooner?
MR NDOU: ...(inaudible)
CHAIRPERSON: Please I'll really want him to help this man out.
MR NDOU: I'll put it on my shoulders to try and go and find him.
CHAIRPERSON: Will you explain to him then his application will not be proceeded with now, we'll postpone it to tomorrow then in the hope that we get special instructions. If not then we'll have to postpone it sine die.
MR NDOU: I'll do so, he's a different applicant.
CHAIRPERSON: Oh.
MR NDOU: This is Mashamba now.
CHAIRPERSON: Is that number 9?
MR NDOU: That's right.
CHAIRPERSON: Yes. Mr Mashamba, what language would you prefer to use?
