ON RESUMPTION ON 27 JANUARY 1999 - DAY 8
PAULOS MCIKELENI MBATHA: (still under oath)
CROSS-EXAMINATION BY MR BERGER: Mr Mbatha, what is your standard of education?
MR MBATHA: Standard four.
MR BERGER: Are you presently in custody?
MR MBATHA: No.
MR BERGER: Were you released on bail when your co-accused in the criminal trial were released on bail, and have you been out of jail ever since?
MR MBATHA: Yes.
MR BERGER: When were you released on bail?
MR MBATHA: I cannot remember the date, but I think it was in 1995.
MR BERGER: And since then, where have you been living?
MR MBATHA: I went to stay at Khayelitsha, and I went back home.
MR BERGER: Is that Khayelitsha Hostel in Sebokeng?
MR MBATHA: Yes.
MR BERGER: When did you go home?
MR MBATHA: I stayed there for only a week and I went back home thereafter.
MR BERGER: You stayed at the hostel for a week, and then you went back home?
MR MBATHA: Yes.
MR BERGER: And that's to Nongoma?
MR MBATHA: Yes.
MR BERGER: And when did you return to the Khayelitsha Hostel?
MR MBATHA: I cannot remember very well, but I stayed home for quite a long time.
MR BERGER: Were you back in the Khayelitsha Hostel in 1997?
MR MBATHA: Yes.
MR BERGER: And you've been staying in the Khayelitsha Hostel from 1997 until now?
MR MBATHA: No.
MR BERGER: Do you leave from time to time to go home?
MR MBATHA: Yes, sometimes I go home.
MR BERGER: When did you decide to apply for amnesty?
MR MBATHA: I took that decision last year.
MR BERGER: When, can you be more specific?
MR MBATHA: I cannot remember the date, but it was just after I was discharged from hospital, round, just around the Easter holidays.
MR BERGER: So would I be correct to say that the first time that you decided to apply for amnesty was Easter 1997?
MR MBATHA: No.
MR BERGER: Well when was the first time you decided to apply for amnesty? I beg your pardon, Easter 1998?
MR MBATHA: It was (indistinct) 1998, during the Easter holidays I was home.
MR BERGER: Yes, my question is, when did you first decide that you were going to apply for amnesty?
MR MBATHA: It was in 1998, I cannot remember whether it was August or September, it was when I had just arrived from home.
MR BERGER: If you have a look at your application, which starts at page 210A, have a look at page 210C and you'll see there a date, the 7th of August 1998, would that be the time when you first decided to apply for amnesty?
MR MBATHA: Yes, I can say so.
MR BERGER: Before that you had not given anyone an instruction that you wished to apply for amnesty, is that correct?
MR MBATHA: No, I did not tell or instruct anyone.
MR BERGER: Now, you told the committee yesterday that when you heard that there was going to be an attack on Boipatong, you said, "Thank you, because I've been waiting for this", remember that?
MR MBATHA: Yes.
MR BERGER: And yet you tell the committee that the first time that you ever heard about any talk about an attack was on the 17th of June 1992, am I right?
MR MBATHA: Yes, that is correct.
MR BERGER: You never attended a single meeting, prior to the 17th of June, at which there was talk of a possible attack, not on Boipatong, but of a possible attack, you didn't attend any such meeting?
MR MBATHA: Will you please repeat your question, sir?
MR BERGER: Prior to the 17th of June, you never attended a single meeting where there was talk of an attack, is that right?
MR MBATHA: No.
MR BERGER: It's not right?
MR MBATHA: I never attended such meetings.
MR BERGER: Not only that, but you never heard from anyone else that there had been such meetings, am I right? You say no, but... (intervention).
MR MBATHA: I never heard anything to that effect.
MR BERGER: How is that possible, because we know that there were meetings prior to the 17th at which there was talk of an attack, and if you were so keen to attack, how is it possible that you never had a single conversation with anybody discussing a possible attack?
MR MBATHA: My problem is this, I was always at work, I was only there at Kwamadala Hostel on a Monday, the date was the 15th and the following day was going to be the 16th, which was going to be a holiday, that is why I had to come back from work. During the mampara week, I wouldn't come to the hostel.
MR BERGER: What's the mampara week?
MR MBATHA: It is the week where you work Saturday and Sunday without a pay.
MR MALINDI: Did you sleep at your place of employment?
MR MBATHA: Yes.
MR MALINDI: Yes.
MR BERGER: And where was that?
MR MBATHA: It was at Vereeniging.
MR BERGER: How often would you sleep in the hostel?
MR MBATHA: I would sleep there sometimes if I was off during weekends, I would go to the hostel and spend a weekend there.
MR BERGER: And that's how it was throughout 1991 and the first half of 1992, that you would spend weekends at the hostel, if it wasn't the mampara week?
MR MBATHA: Yes.
MR BERGER: During those weekends, you never had a discussion with anybody during which you were told that there was talk of a possible attack?
MR MBATHA: No.
MR BERGER: If you were at work on Wednesday, the 17th of June 1992, why did you not sleep there that night?
MR MBATHA: On the 17th of June, I was at Kwamadala Hostel. I arrived on a Monday, because I was off on a Tuesday, and I woke up early on the Wednesday, I went to work, I came back in the evening.
MR BERGER: Well that's my question, Mr Mbatha, if you went to work on Wednesday, the 17th of June, why did you not sleep there as you normally did on a Wednesday night, because you were going to go to work again on the Thursday, the 18th of June, why was it necessary for you to come back to the hostel that night?
MR MBATHA: It was not easy to get public transport, taxis, during the weekends, it was better during the week, but it was very difficult for us to get public transport on weekends.
CHAIRPERSON: No, I think what counsel is asking you is this, you've told us that you normally slept at your place of employment, and during the week of the 17th you returned to the hostel on Monday because you were not working on Tuesday, and that on Wednesday you were working, but you returned to the hostel after work. You were working on Thursday and you were working on Friday. Now what counsel wants to find out is, because you normally spent, if you normally slept at your place of employment, given the fact that you were working on Wednesday and you were going to go to work on Thursday and on Friday, why was it necessary for you to come back to the hostel on Wednesday, why didn't you sleep at your place of employment, as you normally do? Do you understand the question? Is that what you want to put, Mr Berger?
MR BERGER: Indeed.
MR MBATHA: You mean the reason that made me to come to the hostel on Wednesday or Thursday?
CHAIRPERSON: Let me see what I can explain to you in Zulu. You told this committee, you have told the committee that you would work and sleep at work, stay over at your workplace on this week - no, no, no, not at your workplace, Ms Interpreter, during the week of the 15th, you went back to the hostel on a Monday. You did that because you were not going to work on the Tuesday, but you were going to work on Wednesday and Thursday and Friday. Is that so?
MR MBATHA: Yes.
CHAIRPERSON: What the counsellor wants to know is this, as you used to sleep at your workplace during your working days, what made you to decide to go back to the hostel on Wednesday instead of staying over at your workplace? Do you understand the question?
MR MBATHA: It was just a coincidence, because I came back on Thursday also.
MR BERGER: Now, Mr... (intervention).
MS CAMBANIS: Sorry, can I just get some clarification on this point? You said, did I get you correctly when you said that you would sleep at work when it is a mampara week?
MR MBATHA: Yes.
MS CAMBANIS: And your definition of a mampara week is the week when you would not be paid but you would work even on Saturday and on Sunday?
MR MBATHA: Yes, that was the previous week.
MS CAMBANIS: So were you paid fortnightly?
MR MBATHA: Yes.
MS CAMBANIS: And then on the week that you would be paid, where would you sleep?
MR MBATHA: I would come back and sleep at Kwamadala Hostel.
MS CAMBANIS: In other words, the weekend preceding - when you wouldn't be paid, you would sleep at work and then the following week when you would be paid, then you'd sleep at the hostel, is that your evidence?
MR MBATHA: Yes, sometimes I would come back to the hostel if there was a need for me to do so.
MS CAMBANIS: Would you come back during the week or would you come back during the weekend?
MR MBATHA: I would come back even if it's during the week, but I used to come back mostly on weekends.
MS CAMBANIS: Thank you.
MR BERGER: Mr Mbatha, I thought I understood from you that you spent most of your time at work and sleeping at work, and occasionally you would spend weekends at the hostel, is that right?
MR MBATHA: Yes, I would be present during some weekends.
CHAIRPERSON: Let's just see whether we can get clarity on this. Did you always sleep at your place of employment?
MR MBATHA: No.
CHAIRPERSON: How often would you return to the hostel?
MR MBATHA: I would come back after knocking off on a Friday, if it's still early I would go to the hostel and leave on a Monday. Sometimes I would just come or sometimes I wouldn't, I would stay over.
CHAIRPERSON: Is the position that you would return to the hostel during the week at times?
MR MBATHA: Yes, if I happened to knock off early, I would go to the hostel.
CHAIRPERSON: Yes, and sometimes you would only go to the hostel over the weekend?
MR MBATHA: Yes.
CHAIRPERSON: I don't know whether that clarifies, madam.
MR BERGER: Mr Mbatha, do I then understand you correctly to say that you actually spent more time at the hostel than just the occasional weekend?
MR MBATHA: Not most of the times.
MR BERGER: I didn't get that translation.
MR MBATHA: Yes, I used to go to the hostel and stay there, but most of the times I would be at my workplace.
MR BERGER: And in order for you to get to the hostel, am I correct that you would have to take public transport from Vereeniging to Kwamadala?
MR MBATHA: No.
MR BERGER: How did you get to the hostel?
MR MBATHA: I would take a taxi to Terela, and I would alight at the robots.
MR BERGER: And you would have to pay for that taxi?
MR MBATHA: Yes, the transport is not free, public transport is not for free.
MR BERGER: So unless you had a need to return to the hostel during the week, it was cheaper for you to sleep at work during the week and only return to the hostel on weekends, am I right?
MR MBATHA: Yes, that used to help me also, but most of the time I would stay over because of knocking off very late.
MR BERGER: And so the reason you went to the hostel on Wednesday, the 17th of June, was because there was a need, am I right, it wasn't just a pure coincidence?
MR MBATHA: I said it was a coincidence.
MR BERGER: And the need, I put it to you, was because you knew that there was going to be an attack on Boipatong that night, that's why you didn't sleep at work, that's why you returned to the hostel that afternoon, correct?
MR MBATHA: If I knew that, Mr Berger, I wouldn't hid that now, I wouldn't mention all the people that I injured there during that incident and decide to hide this simple information or minor information.
MR BERGER: It's not so minor, because then we would go in to all the meetings that were held before the attack, wouldn't we?
MR MBATHA: I regarded it as a minor thing, because no-one would die in such meetings, there were no murders or deaths.
MR BERGER: At the stadium, on the 17th of June - well let me ask you this, when the alarm went off, you went to the stadium, correct?
MR MBATHA: I did not hear the siren, I didn't even go to the stadium, I was not yet there at the hostel at the time.
MR BERGER: Well let me read to you what you say in your affidavit at page 210(I), the second paragraph on that page, you say
"On the evening of the 17th of June 1992, the alarm went off and all of us went to the stadium."
Is that not correct?
MR MBATHA: No, that is not true.
MR BERGER: But you confirmed this yesterday, Mr Mbatha, as being true?
MR MBATHA: No, all I said was this, when I arrived, the people were from the stadium. I inquired as to what was happening and they said it was time go and attack, that is when I said, I mentioned that (Indistinct)... (intervention).
CHAIRPERSON: Mr Mbatha, we understand what your evidence is often concerning your role on the day in question. I think what's being put to you is that at the commencement of your evidence in chief, you were asked to confirm the contents of certain documents which were made available to you. One of those documents contains the statement that counsel has just put to you, do you understand that?
MR MBATHA: Yes, I do understand that, but this issue about the stadium is confusing me, I did not go to the stadium on that day.
CHAIRPERSON: Yes, we understand that. I think what you're being asked is the simple question as to, if you didn't go to the stadium, why then did you tell us that the contents of the statement that was read to you were accurate?
MR MBATHA: I would like to apologise for that, that was a mistake from my side.
MR BERGER: You go on in your statement, the next sentence, you say
"There..."
meaning at the stadium:-
"...Quonquo said that we must attack Boipatong."
Now, leave aside the point that what you're referring to is what was said at the stadium, was it reported to you that Quonquo had said that you must attack Boipatong?
MR MBATHA: Yes, I was told.
MR BERGER: You were told that Quonquo had told the people at the stadium that they must attack Boipatong?
MR MBATHA: Yes.
MR BERGER: And is it correct that you were told that Quonquo said, "We must attack Boipatong because we have had enough with the people of Boipatong"?
MR MBATHA: Yes.
MR BERGER: Now that's all the people living in Boipatong, am I right?
MR MBATHA: Yes, I can say so, because it was mentioned, they mentioned all the people of Boipatong.
MR BERGER: And so the attack was an attack on all the people of Boipatong, correct?
MR MBATHA: Yes, but it was also mentioned that the people that were most wanted were the defence people.
MR BERGER: Why is there not a mention in your statement at 210(H) to (I), not a word about the self defence units, why is that?
MR MBATHA: I'm the one who did not mention that.
CHAIRPERSON: We understand that. I think the question is, why didn't you mention that in your statement?
MR MBATHA: No, I do not have a reason, I do not have a reason for omitting that.
MR BERGER: The reason that you omitted it is because it was said at the stadium that "We are going to destroy Boipatong", and there were no fine distinctions drawn between the self defence units and the people of Boipatong, everybody knew at the stadium that there was now an attack to be launched, and everyone and everything in Boipatong was to be destroyed, that's the reason it's not in your statement, Mr Mbatha?
MR MBATHA: That is not true, I did not hear that instruction as to how to kill the people or who to kill at Boipatong.
MR BERGER: Do I understand you correctly that you would have attacked the other townships like Sebokeng or Sharpeville, but Boipatong was chosen because it was the closest to Kwamadala.
MR MBATHA: Yes.
MR BERGER: If there had been police in Boipatong during the attack, and police vehicles in Boipatong during the attack, are you saying you would have seen it, you would have seen them?
MR MBATHA: Yes.
MR BERGER: And your evidence is that there was not a single police vehicle in Boipatong at the time of the attack, am I right?
MR MBATHA: Yes, that is true.
MR BERGER: Not only would you have seen it, but even if you had not seen it, you would have heard about it from your co-attackers, am I right?
MR MBATHA: I would have seen them in they were in there at Boipatong.
MR BERGER: And since the attack on Boipatong until today, you have never had a discussion with anybody, or heard anyone talk about the presence of the police in Boipatong during the attack, is that right?
MR MBATHA: Yes, that is true.
MR BERGER: But you did see a military vehicle as you were leaving Boipatong, am I right?
MR MBATHA: Yes.
MR BERGER: And that was when you were in the veld between Boipatong and the main road, the road that separates Boipatong from Kwamadala?
MR MBATHA: I did not see it at the road, I only saw it on our way out from the township, we were at the veld and this vehicle was headed towards Sebokeng, it made a turn at the filling station.
MR BERGER: If you're standing in the veld looking towards Kwamadala, are you saying that that military vehicle drove on the road in front of you, coming from your left, moving past you and going to your right towards Sebokeng?
MR MBATHA: It was a distance after we had left the township, we saw this vehicle approaching, making a U turn at the filling station.
MR BERGER: But am I correct, do I understand your evidence correctly that this military vehicle passed in front of you, quite a distance in front of you, but passed in front of you, from your left moving to your right and towards Sebokeng?
MR MBATHA: Yes.
MR BERGER: And after it had gone past you and got towards the robot, that was when it did a U turn?
MR MBATHA: Yes.
MR BERGER: And once it had done a U turn, what did it do?
MR MBATHA: It moved towards the firms (?).
MR BERGER: And was any attempt made to interfere with you or any of your co-attackers... (intervention).
MS CAMBANIS: Sorry, Mr Berger... (intervention).
MR MBATHA: Yes.
MS CAMBANIS: Sorry, my notes say that it made a turn at the robots, I didn't hear them saying it made a U turn.
MR BERGER: I'm sorry, maybe I got it wrong, but the Zulu was not... (intervention).
MR MBATHA: Ja, (indistinct) said a turn, made a turn, made a turn.
MR BERGER: Mr Mbatha, just to be clear, this military vehicle, when it got to the robots, are you saying it turned right and moved towards the firms?
MR MBATHA: Yes.
MR BERGER: And what attempt was made to interfere with you or any of the co-attackers?
MR MBATHA: Yes, we were disturbed by their lights and we thought that they may have seen us.
MR BERGER: Other than that, was any attempt made to interfere with you?
MR MBATHA: It moved slowly, thinking that it had come at a higher speed, but this time it moved slowly, we thought it was suspecting something.
MR BERGER: Anything else?
MR MBATHA: Shots were fired, directed at this vehicle.
MR BERGER: By whom?
MR MBATHA: Domorotonga used his AK47 firing the shots.
MR BERGER: Anyone else fire any shots?
MR MBATHA: No, he is the only person I saw shooting.
MR BERGER: And the soldiers, did they do anything?
MR MBATHA: No, they just proceeded straight past the Cape Gate (?).
MR BERGER: Now, at the criminal trial, Mr Bojosi testified that he saw you at the stadium with a spear. Is that false?
MR MBATHA: He must be mistaken.
MR BERGER: But you did have a spear?
MR MBATHA: Yes, I did have a spear on our way to Boipatong.
MR BERGER: And he testified that later in Boipatong, he saw, he saw you chasing a person who had climbed out of a Peugeot motor vehicle?
CHAIRPERSON: Just a second, if you don't mind. You told us that when you arrived at the hostel that evening, you were told that it had been announced that the day has arrived, is that right?
MR MBATHA: Yes.
CHAIRPERSON: Did you also say that people were supposed to arm themselves?
MR MBATHA: Did they say people should arm themselves? Yes, that's what I said, I wanted to know what was happening, and I was informed that Damara said that everybody should arm themselves.
CHAIRPERSON: And you went to your room and you fetched your assegai?
MR MBATHA: Yes.
CHAIRPERSON: Where did you go to after fetching your assegai from your room?
MR MBATHA: We then went out for intelezi(?), it was just outside the stadium.
CHAIRPERSON: Near the stadium?
MR MBATHA: Yes.
CHAIRPERSON: Why didn't you say that Bojosi was not telling the truth at the trial when he said he saw you with a spear at the stadium?
MR MBATHA: I was referring to the stadium.
CHAIRPERSON: But you were near the stadium, or the arena in the hostel with a spear?
MR MBATHA: Yes.
CHAIRPERSON: So he was telling the truth, was he?
MR MBATHA: Yes, I would say so.
CHAIRPERSON: Yes, Mr Berger?
MR BERGER: Thank you, chair.
CHAIRPERSON: Yes.
MR BERGER: And later he said, or he says that he saw you later in Boipatong and he saw you chasing a person who had climbed out of a Peugeot motor vehicle. That's correct, is it not?
MR MBATHA: I don't know whether he said that or not, I cannot remember very well.
MR BERGER: Well... (intervention).
CHAIRPERSON: You know, what counsel is putting to you now is what was said by Bojosi at the trial. You can take it that what counsel is reading to you is accurate, that's what Bojosi said at the trial. Do you understand that?
MR MBATHA: Yes.
CHAIRPERSON: So all that he wants to find out is whether, was he telling the truth when he... (intervention).
MR MBATHA: Yes, he was telling the truth, because yes I did those things.
CHAIRPERSON: Yes. His evidence is that the man had been hiding behind the Peugeot, was it not? That is the witness' evidence, that's my recollection.
MR BERGER: My note is that he tried - there was a Peugeot, he tried to conceal himself.
CHAIRPERSON: Yes, behind the - yes, all right. Yes. Yes, thank you, Mr Berger. You say he was correct, he was telling the truth?
MR MBATHA: Yes.
MR BERGER: Mr Moloi also gave evidence at the trial, and he said that he saw you on the road to Boipatong in possession of a spear. He was also correct?
MR MBATHA: Yes, I would say that, because yes, I was in possession of a spear.
MR BERGER: Now, I want to show you, or ask that you be shown the map of Boipatong, Exhibit J. Thank you. Have you seen that map before?
MR MBATHA: I do see this map, but I cannot make head or tail of it.
MR BERGER: Well, let me try and explain it to you. You'll see the little boxes in rows on this map, those are the houses in Boipatong. On the left-hand side, I beg your pardon, on the right-hand side of the map, those little boxes are the houses in Slovo Park. To the left of the map, but not on the map, is Kwamadala Hostel. At the top of the map, that last street, Amatolo, is the last street in Boipatong before the firms, so the firms would be at the top of the map, but they're not indicated there. At the bottom of the map is where you entered Boipatong, in the middle there, at the bottom. Perhaps if my learned friend could point it out? Thank you. And then right in the centre of the map you will find the shops, and next to the shops you will see an empty space indicated as a park. Now, are you in a position to indicate how you moved through Boipatong and where it was that you stabbed the two people that you spoke about yesterday?
MR MBATHA: I do not see a thing here, somebody may have to show me.
MR BERGER: Let me try a different approach. The house where you found that woman, or a girl, I'm not sure, trying to jump out, and you asked her where the comrades were, remember that?
MR MBATHA: Yes.
MR BERGER: You said that that house was near the shops?
MR MBATHA: Yes.
MR BERGER: Sorry, chair, if you'll just bear with me for a moment? Chairperson, I'm in a difficult position, because I don't want to set off another, well I don't want to set off anything, and yet the victims want to know - want me to try and establish as accurately as possible who is responsible for the death of their loved ones, I'm going to be a little bit obtuse.
CHAIRPERSON: I think what must be understood is that this committee is the only one which has to make a decision whether or not the applicants are entitled to amnesty, which is dependent upon whether the committee is satisfied that they have made the full disclosure and that whatever they did was associated with political motives, those are the issues that are we concerned with, and I think one has to be, all of us understand what happened that night, we're sensitive to that, but I think our duty is the one that I've just outlined. Yes.
MR BERGER: Yes, chair, and in the interests of full disclosure, I have to put certain things, but I'm going to try and be as obtuse as possible, without being vague. Mr Mbatha, at a house near the shops, five people were stabbed in that house... (intervention).
CHAIRPERSON: Are you going through your memo?
MR BERGER: Yes, I am... (intervention).
CHAIRPERSON: Yes.
MR BERGER: ...it's on page 11 of the annexure to the memo.
CHAIRPERSON: Oh, I'm sorry, (indistinct).
MR BERGER: It's very close to the shops, in fact it's over the road from the shops, and that's the only house in the vicinity of the shops.
CHAIRPERSON: Is it No 625?
MR BERGER: Indeed.
CHAIRPERSON: Yes.
MR BERGER: Five people were stabbed in that house, two men, two males and three females, I beg your pardon, three males and two females, and one of them, a very small boy, a very young boy, three of them young children, but a little older, and one a woman. I don't know if I've put that accurately, but... (intervention).
CHAIRPERSON: Yes, I'll take it that you are referring to the names that appear... (intervention).
MR BERGER: Yes.
CHAIRPERSON: ...across No 625?
MR BERGER: Yes.
CHAIRPERSON: Yes, very well. It is three males and... (intervention).
MR BERGER: Two females.
CHAIRPERSON: ...two females?
MR BERGER: Yes.
CHAIRPERSON: Yes.
MR BERGER: Well I can give you the ages, because otherwise it might not be accurate.
CHAIRPERSON: No, I think it's accurate, you know, ja, it's fair enough. Mr Mbatha, did you understand what counsel is putting to you?
MR MBATHA: Yes, I understand.
MR BERGER: And you see, what I'm suggesting to you, Mr Mbatha, is that you're downplaying what happened in that house. You say one person was stabbed, I'm putting it to you five people were stabbed.
MR STRYDOM: Chairperson, it's not been established that this applicant was in that house, so I think it's an unfair statement to say that he's downplaying what happened in that house, because it's not been established that the applicant was in that specific house.
CHAIRPERSON: I think that's a fair question. The evidence that we've heard from Mr Mbatha is that he entered a house in the vicinity of the shops, he is not able to tell us which house, where he stabbed a woman. Now, according to Mr Berger's instructions, as would appear from page 29 of the memorandum, at a house, No 625, which is in the vicinity of the shops, five people were stabbed, three males and two females. So what's being put now is that that is the house where he went into, you know, and that he is under-playing his role, it's entirely up to him to say, "No, I didn't enter that house", or "I'm not under-playing", but I think that's the best way, I think, it can be, the issue can be canvassed.
MR STRYDOM: Yes, chairperson, I can just put it that I also checked the e..., well the list of all the people that died and established that another house, with the same description, although it's not so close to the shops, it's not far from the shops, and that is Sinque 194, there two males died and one female, and that will also fit in with the evidence this witness gave at a previous occasion.
CHAIRPERSON: That's what re-examination is designed for.
MR STRYDOM: I take the point, Mr Chairperson.
CHAIRPERSON: Yes.
MR BERGER: Sorry, Chairperson.
CHAIRPERSON: We're waiting for his comment.
MR BERGER: No, I'll just - I'll put the question again, because there's been a delay.
CHAIRPERSON: Yes.
MR BERGER: The house that my learned friend refers to, Mr Mbatha, is five blocks away from the shops, the house I'm referring to is over the road from the shops, and that was the only house in the vicinity of the shops where people were stabbed.
CHAIRPERSON: Mr Berger, a vicinity is a relative concept, you know, is a relative concept, I think the question that you put was a fair question, just repeat the question.
MR BERGER: So the question I'm putting to you, Mr Mbatha, is that at that house in the vicinity of the shop five people were stabbed, and one of the people who were stabbed, and this is common cause, paragraph 6.6 of our memorandum, page 8 of the actual memorandum, was a 15 year old girl, who was stabbed with an assegai in the chest and the assegai went right through her. Now I'm putting it to you that on your description, that is the house you went into, and I'm putting it to you that there wasn't one person in that house who was stabbed, but five?
MR MBATHA: I would not know really, but I thought there was only one person and the male that I referred to, maybe the houses are confusing me, I don't know.
CHAIRPERSON: Mr Mbatha, I think what's crucial that counsel is putting to you is not so much the houses, but what happened inside the house. Do you understand what I'm saying? The one thing that's important, as counsel points out is not which house you went into and what number the house bears, but one important thing that he puts to you is what happened in that house. Do you understand the difference?
MR MBATHA: Yes.
CHAIRPERSON: You have told us that you stabbed a woman and a man at a particular house, right?
MR MBATHA: No, I did not say I killed the male.
CHAIRPERSON: No, no, that's the man who came out of, who had been concealing himself either in or outside of the Peugeot, who tried to jump the fence and you stabbed him and he ran away, as I understand it.
MR MBATHA: Yes, that is correct.
CHAIRPERSON: You see, what counsel is putting to you is that at the house that you're talking about, three males were stabbed and two females. The essence of what he's saying is this, you're not telling us the truth, you're under-playing what you did, you didn't only stab one woman who had just come out of the window, who tried to come out through the window, but you stabbed three males and two females, do you understand that?
MR MBATHA: Yes.
CHAIRPERSON: What do you say to that? Mr Berger, is that what you want to put to this person?
MR BERGER: Chairperson, it's either that, or there were other people with Mr Mbatha who stabbed the others in the house... (intervention).
CHAIRPERSON: Yes.
MR BERGER: ...but the essence is that to say that only one person was stabbed in that house, that is false.
CHAIRPERSON: Do you understand the qualification that he's just added?
MR MBATHA: Yes.
CHAIRPERSON: Right.
MR MBATHA: Yes.
CHAIRPERSON: Okay, let's get the answer.
MR MBATHA: I will not deny that, because there were many of us, there could have been others who went into the house and found other people.
MR BERGER: No, you see you would know if there were others in the house, because you were looking for comrades, you say, and after you killed that girl, you continued to search the house, because you've told the committee that you then went and opened the wardrobe, remember?
MR MBATHA: Yes.
MR BERGER: And it wasn't a big house, and you would easily have seen if there was a woman aged 39 in the house, a young boy aged 15, a small boy aged 7, a young man aged 19, you would have seen them in that small house if they were there, if they had been stabbed before or if they were hiding, because you searched that house, didn't you?
MR MBATHA: The house was not small, it had rooms, I went to the wardrobe to search because I was suspicious, there were other rooms and some of my co-applicants came out of some of these rooms.
MR BERGER: And if anyone had been stabbed in the other rooms, you would have heard that, you would have heard people screaming in the house, Mr Mbatha. You left that house because you were satisfied that there was no-one else in the house, isn't that what you've told the committee?
MR MBATHA: I did not say that had there been any other person in another room I would have heard screams, I didn't say that.
MR BERGER: No, I'm putting it to you, you would have heard it if there was screaming?
MR MBATHA: I would not say I would have heard such screams, because the one person that I stabbed was such that he didn't get a chance to scream.
MR BERGER: Mr Mbatha, I'm just going to leave this point by putting it to you that you know more about what happened in this house and you are not telling?
MR MBATHA: I do not dispute, I am saying I did not see anything else.
MR BERGER: Who else was with you in this house?
MR MBATHA: I would not know, there was a commotion.
MR BERGER: You can't name a single person who was with you?
MR MBATHA: No.
MR BERGER: Now, you knew that this young woman was not a comrade, because you asked her, "Where are the comrades?", am I right?
MR MBATHA: I knew that she was toeing the line of her comrades.
MR BERGER: She was 15 years old.
MR MBATHA: I don't know her, I estimated her to be my age. I am not 15 years old, I am 35 years old.
MR BERGER: You knew she was not a member of the self defence units, correct?
MR MBATHA: No, I did not know that, I just knew her to be a member of the SDU.
MR BERGER: Oh, really, then why did you tell the committee yesterday that you stabbed her because you were frustrated and infuriated that you could not find the people that you were searching for?
MR MBATHA: I was ventilating on her.
CHAIRPERSON: You were taking your anger at her? That's exactly what counsel is putting to you, that you told us yesterday that you stabbed her because you were frustrated at not getting the people that you were looking for?
MR MBATHA: Yes.
CHAIRPERSON: Suggesting that she was not a member of the SDU?
MR MBATHA: She was a member of the SDU, except to say she was a female.
CHAIRPERSON: So is your evidence that, although she was a female, she was still a member of the SDU?
MR MBATHA: Yes.
MR BERGER: Well, Mr Mbatha, why did you say that you stabbed her because you were infuriated and frustrated that you could not find the people that you were looking for, if she was one of the people that you were looking for? It doesn't make sense?
MR MBATHA: Yes, she was one of the people I was looking for, but then I had priorities, I had other people who came as first priority.
CHAIRPERSON: Mr Mbatha, just help us understand what you're saying. Yesterday you suggested in your evidence that she was not one of the persons that you were looking for, but you stabbed her because you were infuriated. Today you are telling us that she was a member of the SDU, and we know that, from your evidence, you were looking for members of the SDU. Do you understand that?
MR MBATHA: May I please ask, what is this SDU, is it the same thing as the defence, really I don't know?
CHAIRPERSON: Well perhaps we use the term that you didn't use, I think you used the defence yesterday. You see all the evidence we've been hearing here is to the effect that people, the hostel dwellers were looking for the SDU's, because they were primarily responsible for killing IFP members and hostel dwellers, that's what we've been told, so we assumed that when you referred to defences, you're also referring to SDU's, but perhaps you should tell us what is it, what is it that you understand by defences?
MR MBATHA: I really cannot differentiate.
CHAIRPERSON: When you set out to look for defences, who were you actually looking for?
MR MBATHA: I was looking for the people who were patrolling the streets, killing people. These are the people whom I heard of as being SDU's, or defence should I say.
CHAIRPERSON: That is also what we understood from those applicants who referred to these people as SDU's. Do you understand that?
MR MBATHA: Yes.
CHAIRPERSON: Well we come back then to the question, yesterday you told us, that's what counsel's putting to you, that you stabbed the woman because you were frustrated at not getting the people that you were looking for. Do you remember telling us that yesterday?
MR MBATHA: Yes.
CHAIRPERSON: What you're telling us today is that she was also a member of the defence.
MR MBATHA: I would explain this as follows: when I got to her, it's not that I didn't know, I knew that she too was a member, she too was toeing the same line as the others, except that she was not first in the list of priority.
CHAIRPERSON: Mr Berger, I think the record speaks for itself.
MR STRYDOM: Yes, chairperson, my learned colleague who took notes of the evidence in chief, I couldn't take notes myself, but - points out that he said that was asked to her was, "Where are the other defences or comrades?", the other, the word "other" appears on the note. I haven't got a recollection as to that detail myself, but that's been pointed out to me.
MR BERGER: Well the record will clear this up.
CHAIRPERSON: It is my recollection that's what was asked of the woman.
MR BERGER: Is it your evidence today that this girl was amongst the people that you were looking for?
MR MBATHA: Yes.
MR BERGER: What is your reason today for having killed her?
MR MBATHA: The reason is the same, that I was frustrated after failing to get the people that I was looking for, she did not even give me the information I was looking for.
MR BERGER: If she had said to you, "They are in the house next door", would you have killed her?
MR MBATHA: I would take her there, I would take her along to show me.
MR BERGER: She says they're next door, would you have killed her?
MR MBATHA: I would have wanted to go and see them, I would bring her along.
MR BERGER: You're going to take her along to a house where there are these dangerous people who could kill you, you wouldn't kill her first?
MR MBATHA: No.
MR BERGER: And you were acting on your own at that stage?
MR MBATHA: No.
MR BERGER: So there were other of your comrades standing around as you asked this girl where the others were?
MR MBATHA: Yes, they were present, even though I cannot recall what their names are, because some of them came in and went to other rooms.
MR BERGER: And if you had taken her next door and found that the defence were there, would you have killed her?
MR MBATHA: I would have killed her there.
MR BERGER: But then you wouldn't have been frustrated and infuriated, because then you would have found the people that you were looking for, so why would you have killed her? What's the translation, sorry?
MR MBATHA: She is toeing the same line.
CHAIRPERSON: Are you saying it's because she associated herself with the defences?
MR MBATHA: Yes. She is equal to the defences.
MR BERGER: It's because she supported the defences, even if she wasn't a member of the defences, is that right?
MR MBATHA: I don't think that one can support an idea that one is against.
MR BERGER: No, one definitely can't, but she supported the defences, whether she was an actual member or not, when you say she toed the line, you're saying she was a supporter of the defences and that justified killing her?
MR MBATHA: Yes.
MR BERGER: And as far as you were concerned, and all the residents of Kwamadala, all the people in Boipatong supported the defences and toed the line, am I right?
MR MBATHA: Yes.
MR BERGER: So therefore all the people in Boipatong, whether members of the defences or not, were targets for attack, correct?
MR MBATHA: Yes, I would say that, but concerning children and old women, the aged, I don't think so, because they could not control their children. I, for one, wanted people from around 45 years of age downwards, the same applies to females. I did not care about the aged and children.
MR BERGER: So are you saying not all people in Boipatong were legitimate targets for attack?
MR MBATHA: Yes.
MR BERGER: And a seven year old boy was not a legitimate target for attack?
MR MBATHA: He is still too young. It's better to attack a person from ten years of age upwards, because those people are grown-ups.
MR BERGER: Now, when you opened the wardrobe, was it in the same house and you found the two males, was that in the same house that you stabbed this young girl?
CHAIRPERSON: Mr Berger, you're referring to a young girl. His evidence is not that he stabbed a young girl. According to his evidence, the person that he stabbed was about his age.
MR BERGER: I will rephrase it then. I'll refer to her as a female. The two males that you found in the wardrobe, was that in the same house as the female that you had stabbed?
MR MBATHA: Yes.
MR BERGER: How big was this wardrobe?
MR MBATHA: It was big enough.
MR BERGER: Was it a standard, two door wardrobe?
MR MBATHA: I did not notice that, I found both of them inside.
MR BERGER: It was a wardrobe that stands against the wall, it's not part of a wall?
MR MBATHA: I'm not sure whether it was a built-in wardrobe, but it didn't fall.
MR BERGER: And these two males were how old?
MR MBATHA: When I looked at them, I think they were older than myself.
ADV SIGODI: Sorry, did you in fact look at them when they fell out of the wardrobe?
MR MBATHA: Yes, I opened the wardrobe because I wanted them to be shot at.
ADV SIGODI: In other words they were shot at whilst the wardrobe was open?
MR MBATHA: Yes, I had already opened the wardrobe, they fell thereafter.
CHAIRPERSON: Mr Berger, we will take the tea adjournment at 11 o'clock.
MR BERGER: You've just told the committee that you opened the doors, you saw the two men hiding in the wardrobe, you could see that they were approximately your age, and Themba Mabota then shot and killed them.
MR STRYDOM: No, he said they were older than himself, Mr Berger.
MR BERGER: I apologise. You could see that they were older than you, the doors were open and Themba Mabota then shot and killed them, is that right?
MR MBATHA: Yes, that is correct.
MR BERGER: Yesterday you told the committee that you could not open the doors, Themba Mabota shot at them and you could see only their heads as they collapsed out of the wardrobe. Which version is the truth?
MR MBATHA: The wardrobe was open and they fell and I could see their heads out of the wardrobe.
MR BERGER: You told the committee yesterday that you could not open the doors?
MR MBATHA: How were their heads exposed if the wardrobe was not open?
MR STRYDOM: Chairperson, I've been referred to a note by my learned colleague again, and I can just read from that. Again, I don't have a recollection, because I didn't take a note
"I opened the wardrobe and found two males inside. I called Themba Mabota. They died, we saw these heads outside the wardrobe hanging."
CHAIRPERSON: As I understood his evidence, it was that he opened the wardrobe, found these two men, and then the wardrobe couldn't be opened, and then Themba Mabota shot at them. Perhaps Mr Berger you would want to clarify whether when he opened the wardrobe, did they pull it back, so as to be shot once the wardrobe was closed, because it just seems to me not to make sense that he would see that there were two people inside without first opening the wardrobe, unless it had a glass (indistinct).
MR BERGER: Chairperson, I'll just clarify it briefly and then we can take the adjournment.
CHAIRPERSON: Yes, very well.
MR BERGER: When Themba Mabota shot at the two males in the wardrobe, were the doors to the wardrobe open or closed?
MR MBATHA: The door was already open and it was easy for one to shoot or to see a person inside.
CHAIRPERSON: Did you use the word "silbulga"?
MR MBATHA: Yes we were struggling with the door.
ADV SIGODI: In other words are you saying that the occupants inside the wardrobe were trying - were holding the door so that you would not be able to open the door?
MR MBATHA: Yes.
ADV SIGODI: Was it wide open or was it just open enough so that you could see the occupants inside the wardrobe?
MR MBATHA: It was opened in such a way that you could see that there were people inside, but they did not want us to open the door, the door was opened widely after they were shot at.
MR BERGER: So when they were shot, the doors of the wardrobe were closed?
MR MBATHA: They were not completely - the doors of the wardrobe were not completely open, we overpowered them as they were holding the door and as we were also trying to open the door, but the door was not completely closed and it was not completely open. The door was shot at, the door opened thereafter because no-one was holding the door.
MR BERGER: Chairperson, perhaps this would be an appropriate time to take the adjournment.
CHAIRPERSON: Yes, very well. We'll take a tea adjournment now, we will return at 11:30.
COMMISSION ADJOURNS FOR TEA
PAULOS MCIKELENI MBATHA: (still under oath)
CROSS-EXAMINATION BY MR BERGER CONTINUES: Mr Mbatha, for the record, I just want to tell you that I was approached by Mrs Phale, P H A L E, during the adjournment and the young girl, aged 15, who died at 625 Bapele Street, the house over the road from the shops, was her daughter, and her name was not Ronica Msebe, as it is in the annexure, her name was Ronica Phale, and she was visiting the Msebes.
CHAIRPERSON: What is the page again?
MR BERGER: It's page 11 of the annexure, chairperson.
CHAIRPERSON: Yes, all right.
MR BERGER: She was visiting the Msebes on the night of the attack.
CHAIRPERSON: Yes, okay.
MR BERGER: Her name is Ronica Phale.
CHAIRPERSON: How do you spell that?
MR BERGER: P H A L E.
CHAIRPERSON: Yes, thank you.
MR BERGER: Not Ronica Msebe.
CHAIRPERSON: Okay, thanks.
MR BERGER: But she was 15 and she was stabbed right through her body. The other person that you stabbed - I'm sorry, before I get to that person - when I asked you earlier whether you could name anyone who was with you in the house where you stabbed the female, you said you couldn't, but you say that the house in which you shot, or in which the two males were shot, the two males who were trying to hide in the wardrobe, that was in the same house and Themba Mabota was in that house when you called him, is that right?
MR MBATHA: Yes.
MR BERGER: Then you went to another house, and that was where you saw a person trying to escape, that's the person who tried to hide himself around the Peugeot?
MR MBATHA: Yes.
MR BERGER: And can you indicate where that house was?
MR MBATHA: As I have indicated that I cannot point out, I was just walking, I'm not quite familiar with the area.
MR BERGER: And who were you walking with?
MR MBATHA: It was Themba and the other people, I don't know them quite well.
MR BERGER: The only two people that you saw shooting were Damara Quonquo and Themba Mabota, is that right?
MR MBATHA: Yes.
MR BERGER: Where did you see Damara shooting?
MR MBATHA: I saw him shooting last shooting at the defence.
MR BERGER: And you never saw anyone else shooting?
MR MBATHA: No.
MR BERGER: You say that the lighting in Boipatong was bad, it was dark?
MR MBATHA: Yes.
MR BERGER: Was there not a full moon that night?
MR MBATHA: I do not know, but it was dark.
MR BERGER: Are there not Apollo lights in Boipatong?
MR MBATHA: It was not lit, it was dark.
MR LAX: Mr Berger, just to help us, those Apollo lights, are those those big mast lights that one sees in townships?
MR BERGER: (No audible reply). After you had tried to kill the man near the Peugeot, you continued searching houses, is that right?
MR MBATHA: Yes.
MR BERGER: And the only other house that you found people in was the house where Themba Mabota shot the male and the female under the bed?
MR MBATHA: Yes.
MR BERGER: And how old were they?
MR MBATHA: I don't know.
MR BERGER: Why is there no mention of them in your statement, at page 210(I)?
MR MBATHA: I wouldn't know, maybe I was not asked about them, we may, we could not have continued, or should I say it's possible we didn't continue with the questioning.
MR BERGER: Then did you go into Slovo Park?
MR MBATHA: I don't know whether I did get there or not.
MR BERGER: Why do you say in your statement
"I was not in Slovo Park",
if you don't know?
MR MBATHA: I said I don't know whether I did get to Slovo Park or not. I was just walking, I do not know the place, I think it was in the middle, we were in the middle of the township, so I could not make out my way.
MR BERGER: Did you follow Themba Mabota wherever he was going?
MR MBATHA: We parted ways. We were destroying, we did not stick together all the way through.
MR BERGER: Did you see people looting?
MR MBATHA: Yes, I did see some people in possession of items on our way out.
MR BERGER: Did it surprise you to see them carrying these items?
MR MBATHA: Yes, it did.
MR BERGER: Did you ask them, "Why are you carrying these things?"
MR MBATHA: No, I did not, I did not even have that chance.
MR BERGER: Afterwards, back at the hostel, did you ask anyone why they had stolen stuff from Boipatong?
MR MBATHA: When we arrived, we did not have a chance to talk, we rushed into our homes to sleep.
MR BERGER: Why?
MR MBATHA: We knew that we had destroyed, so that even if there are suspicions, we should be asleep.
MR BERGER: Did you enter the hostel through the main gate?
MR MBATHA: Yes.
MR BERGER: Together with everyone else?
MR MBATHA: I would not know whether some people were left behind, but as far as I know, I think we all went in through the same gate.
MR BERGER: Damara went through the same gate with you, didn't he?
MR MBATHA: I would say so, even though we could not see each other at the time.
MR BERGER: And what did you do with your spear, your assegai?
MR MBATHA: I came back from work the following day and discovered that the police had confiscated all the spears.
CHAIRPERSON: No, I think counsel wants to find out, when you returned to the hostel after the attack, what did you do with your spear? Is that what - yes, or... (intervention).
MR MBATHA: I kept it in my room as usual.
MR BERGER: The next morning, what time did you wake up?
MR MBATHA: I left quite early, because I had to be at work at six o'clock.
ADV SIGODI: Sorry, when you got home to your room, did you wash your spear, did you wash it?
MR MBATHA: Yes.
MR BERGER: Who did you share a room with in the hostel?
MR MBATHA: I was staying with Buthe and others, my brother and others.
MR BERGER: Who were the others?
MR MBATHA: They were others, whose name I don't know, it could be Tulu.
MR BERGER: Is that the only name you can remember?
MR MBATHA: Yes, there were two of them, Tulus.
MR BERGER: How many people were there in your room?
MR MBATHA: We could have been five.
MR BERGER: And you all went on the attack?
MR MBATHA: No.
MR BERGER: Who stayed behind?
MR MBATHA: My brother, he had gone to work.
MR BERGER: The others went on the attack?
MR MBATHA: Yes they did.
MR BERGER: The next morning, what time did you leave the hostel?
MR MBATHA: I used to leave at five o'clock or round about ten to five.
MR BERGER: And you had no difficulty leaving the hostel?
MR MBATHA: No, I didn't have a problem.
MR BERGER: There was no police presence, no military presence, no Iscor security, around the hostel?
MR MBATHA: No, I did not see any one of them.
MR BERGER: What time did you return from work?
MR MBATHA: It was in the evening, quite late, it was quite late, because there was no longer public transport to Terela.
MR BERGER: So it would have been in the evening that you returned back to the hostel on Thursday?
MR MBATHA: Yes, it was not quite late, but I think it was headed for nine o'clock in the evening.
MR BERGER: And then you went back to your room and you went to sleep?
MR MBATHA: Yes, but then when I arrived, there was a police contingent.
MR BERGER: On the Friday, did you go back to work?
MR MBATHA: No, I could not
MR BERGER: Why not?
MR MBATHA: They didn't allow us to leave the hostel.
MR BERGER: That was on the Friday?
MR MBATHA: Yes.
MR BERGER: And when you say "they", are you referring to the police and the army?
MR MBATHA: Yes.
MR BERGER: And Iscor security?
MR MBATHA: I don't know whether they were present.
MR BERGER: And when did you attend a meeting which was addressed by Themba Khosa, did you attend a meeting addressed by Themba Khosa?
MR MBATHA: The one meeting that I know, even though I cannot recall the date, that was the day on which the police did not allow us out of the hostel, that was the meeting, that is when - that was the day when he came along with the police, that's the meeting that I can remember.
CHAIRPERSON: But would that have been the first day during which you couldn't go to work because the police wouldn't allow you to leave the hostel?
MR MBATHA: Yes. The meeting was held, I'm not sure quite when, it could have been Friday or Saturday, I'm not quite sure.
MR BERGER: And that was the meeting where, in the presence of the police, Themba Khosa said you must help the police?
MR MBATHA: Yes.
MR BERGER: But you didn't attend the meeting on the Thursday, the one on the 18th, that was addressed by Themba Khosa?
MR MBATHA: No, I was not present.
MR BERGER: And so you wouldn't be able to dispute it if I put it to you that at that meeting on the Thursday, Themba Khosa instructed the hostel residents to burn all the evidence which linked them to the massacre, you can't dispute that, can you?
MR MBATHA: I would not admit, I would not dispute that either, I don't know.
MR BERGER: You don't know who gave the order to burn the goods looted from Boipatong and the evidence which linked you to the attack, am I right?
MR MBATHA: No.
MR BERGER: You don't know?
MR MBATHA: I don't know.
MR BERGER: You say you don't know Andries Matanzima Masinga?
MR BERGER: No, I don't know him.
MR BERGER: Never heard about him?
MR MBATHA: No.
MR BERGER: Never heard about an ANC spy who infiltrated the hostel with plans to blow it up, never heard about such a person?
MR MBATHA: I only heard about that when I was at home.
MR BERGER: In Kwa-Natal?
MR MBATHA: Yes.
MR BERGER: And then you came back to the hostel?
MR MBATHA: Yes.
MR BERGER: And did you ask questions about him?
MR MBATHA: I did not.
MR BERGER: Why not, didn't you want to know if he's still there?
MR MBATHA: I heard that he was allowed to leave.
MR BERGER: To leave or to live?
MR MBATHA: I was told that he was leaved, he left.
MR BERGER: You were told that when you returned to the hostel?
MR MBATHA: Yes.
MR BERGER: So you did ask about him?
MR MBATHA: I did not.
MR BERGER: Who told you about him?
MR MBATHA: Dlamini told me that there is one person who came, but he was later released.
MR BERGER: Richard Dlamini?
MR MBATHA: Yes.
MR BERGER: And did he tell you the name of this person?
MR MBATHA: No.
MR BERGER: Did you ask the name of the person?
MR MBATHA: No, I did not. I only heard about the name here.
MR BERGER: Did you hear that this person had been taken to Ulundi?
MR MBATHA: No, I did not hear about that.
MR BERGER: That he had been paraded before the leadership at Ulundi?
MR MBATHA: No.
MR BERGER: That he had been brought back to the hostel?
MR MBATHA: No.
MR BERGER: And that he had been allowed to live in the hostel?
MR MBATHA: I did not hear anything about that, I only heard that he came to the hostel, I know nothing about the Ulundi incident.
MR BERGER: Thank you, Mr Mbatha, I have no further questions.
NO FURTHER QUESTIONS BY MR BERGER
CHAIRPERSON: Yes, thank you. Mr Malindi, do you have any questions?
MR MALINDI: No questions, chairperson.
CHAIRPERSON: Yes, thank you.
NO CROSS-EXAMINATION BY MR MALINDI
NO CROSS-EXAMINATION BY MS CAMBANIS
NO CROSS-EXAMINATION BY MR PRETORIUS
RE-EXAMINATION BY MR STRYDOM: Mr Mbatha, do you know the attorney Koos van der Merwe?
MR MBATHA: Van der Merwe?
MR STRYDOM: Do you know an attorney that came to the Khayelitsha Hostel at a certain time?
MR MBATHA: Yes, I think I remember.
MR STRYDOM: Do you remember when that was?
MR MBATHA: I do not remember quite well, but I think it could have been 1997 if I'm not mistaken.
MR STRYDOM: You remember a meeting that was held in connection with the possibility of amnesty applications, at the Khayelitsha Hostel?
MR MBATHA: No.
MR BERGER: Chairperson, perhaps my learned friend could lead a little bit less.
CHAIRPERSON: I don't have a problem with this kind of question, because he's re-examining the witness. Yes, go ahead.
MR STRYDOM: On the occasion you saw the attorney at Khayelitsha Hostel, do you remember what was discussed?
MR MBATHA: The one who came, the one that I know, came to inform us that we would require lawyers or attorneys to represent us for our appeal, and that happened later, I was at home.
MR STRYDOM: Did you discuss the possibility of an amnesty application with your co-accused at that stage, co-convicted accused?
MR MBATHA: Yes, I did.
MR STRYDOM: During these discussions, were a decision made in this regard?
MR MBATHA: They said they had discussed, I was the only one who was left out because I was at home.
MR STRYDOM: Do you remember at the trial a witness that gave evidence with the name of Richard Msebe?
MR MBATHA: I do not remember very well.
MR STRYDOM: When you were cross-examined, you stated that the house you went into where you stabbed the woman and where Daniel Mabota shot the two people in the wardrobe, there were more people than just yourself and Mabota, is that right?
MR MBATHA: Yes, that's right.
MR STRYDOM: In that house, can you estimate, apart from the two of you, how many other attackers there could have been?
MR MBATHA: There were many of them, because they continued breaking windows.
MR STRYDOM: Do you remember evidence being led, although you can't remember the person who gave that evidence, that at this house, 625 Bapele Street, he saw at least three attackers?
MR MBATHA: I do not remember.
MR STRYDOM: The house you went into, where you stabbed the woman, were the lights on or was it dark?
MR MBATHA: It was dark.
MR STRYDOM: I've got no further questions.
NO FURTHER QUESTIONS BY MR STRYDOM
NO RE-EXAMINATION BY MS PRETORIUS
CROSS-EXAMINATION BY MR DA SILVA: Mr Mbatha, will you please look at Exhibit M1, being the aerial photograph of Boipatong and its vicinity. I see you've got the photograph in front of you. If you look on the left-hand side, above the letter D, there's a road that runs across the photograph to above the letter M on the right-hand side, do you see that road?
MR MBATHA: Yes.
MR DA SILVA: That is Frikkie Meyer Boulevard, the road that separates Boipatong from the Kwamadala Hostel.
MR MBATHA: Yes.
MR DA SILVA: You'll see on that road there's a point marked H, that is where the footbridge is where the group crossed after the attack on the way to Kmadala. Do you agree with that?
MR MBATHA: Yes.
MR DA SILVA: Now if you look at point C, that's where the Trek Garage is, and you'll see, running in an easterly direction there's a road, that's Nobel Boulevard, it's the area which separates Boipatong and the factories, do you agree with that?
MR MBATHA: Yes.
MR DA SILVA: And then if you look on the top of that photograph, do you see there's a point marked F? If you look on the top of the photograph, do you see a point marked F?
MR MBATHA: Yes.
MR DA SILVA: Do you agree that that is where Cape Gate is?
MR MBATHA: Yes.
MR DA SILVA: In fact, Cape Gate's premises extend from approximately that point right till the end of Nobel Boulevard, would you agree with that?
MR MBATHA: Yes.
CHAIRPERSON: Mr Mbatha, can you yourself understand the, on your own, the photograph that's in front of you?
MR MBATHA: My attorney did show this to me.
CHAIRPERSON: Well your attorney is, your legal representative, is in fact pointing out certain things on the photograph for you, right?
MR MBATHA: Yes.
CHAIRPERSON: Okay, continue Mr Da Silva.
MR DA SILVA: Thank you, Mr Chairman. Now I understand your evidence to be, and you must please correct me if I'm wrong, that immediately after the attack, the group gathered in the veld between Boipatong and Frikkie Meyer Boulevard, is that correct?
MR MBATHA: Yes.
MR DA SILVA: Would you agree that it was more or less in the middle of that veld that the group gathered?
MR MBATHA: Yes, it was just opposite the footbridge.
MR DA SILVA: Would you agree, you say opposite the footbridge, would you say that the majority of the group was to the north of the footbridge, in other words towards the Trek Garage, or do you say that the group all congregated directly opposite the footbridge?
MR MBATHA: That's where we had gathered, near the bridge.
MR DA SILVA: Right. And I understand your evidence to be that Mr Damara Quonquo was close to you, is that right, at that stage?
MR MBATHA: Yes, even though he was not very close, but I could see him.
MR DA SILVA: I haven't received a translation, Mr Chairman, but I assume the witness assented to that, he agreed with the proposition?
MR LAX: His answer was, even though he was not very close, but I could see him.
MR DA SILVA: Thank you, Mr Lax, I didn't receive a translation. And you say Damara fired in the direction of the military vehicle with an AK47?
MR MBATHA: Yes.
MR DA SILVA: Was this AK47 set on automatic or was it single shots?
MR MBATHA: No, as far as I know it was raised to fire a single shot.
MR DA SILVA: Did Damara fire more than one shot?
MR MBATHA: I think he fired twice, if I'm not mistaken.
MR DA SILVA: Now you also testified under cross-examination that the soldiers moved past Cape Gate, that was your testimony, in an answer to Mr Berger's question?
MR MBATHA: Yes.
MR DA SILVA: At what stage did you see the soldiers move past Cape Gate?
MR MBATHA: They drove past Cape Gate after the shot was fired. They wanted to stop before reaching Cape Gate, but then they continued driving past Cape Gate.
MR DA SILVA: I'm sorry, Mr Chairman, I think my receiver's defective, I'm not receiving an answer at all.
MR LAX: If you pick it up, Mr Da Silva, if you pick it up like that, then it will be in line with the transmitter, which is this little box just behind the TV.
MR DA SILVA: Mr Lax, while you're speaking, I'm not receiving anything at all.
CHAIRPERSON: Would you swop these, get, you know, another that's... (intervention).
MR DA SILVA: I've changed transmitters, Mr Chairman. Mr Mbatha, the question was, when you saw this vehicle moving past Cape Gate, where were you at that stage?
MR MBATHA: By that time we were approaching, just about to cross the road. The cars, or the vehicle, was just about to turn at the robots, not yet, it had not yet arrived at Cape Gate.
MR DA SILVA: What I'm trying to establish is, you said that you saw the motor vehicle, or the military vehicle, move past Cape Gate, I want to know where were you at that stage when you saw the vehicle going past Cape Gate?
MR MBATHA: I am saying I saw it approaching Cape Gate during which time the shots had already been fired and we swiftly crossed the road to avoid being arrested in case the police come back.
MR DA SILVA: So are you saying that you had not crossed the road when the vehicle was in the direction, going in the direction of Cape Gate?
MR MBATHA: Yes, we were just about to cross the road when this vehicle approached Cape Gate and we could see it just about to disappear.
MR DA SILVA: You see, would you agree with me that this is a very flat area? The point that I'm trying to make is that if one stands on the bridge, at the footbridge, you can't see Cape Gate, because Boipatong is in the way?
MR MBATHA: Yes.
MR DA SILVA: And I understand your evidence now to be that the vehicle was going in the direction of Cape Gate, you did not in fact see it go past Cape Gate, is that your evidence?
MR MBATHA: I did not see it go past Cape Gate, but I noticed that it was just about to move past Cape Gate.
MR DA SILVA: Now when you saw the vehicle and you made the assumption it was going in the direction of Cape Gate, was the vehicle still at the Trek Garage?
MR MBATHA: It had already gone past the garage or the filling station.
CHAIRPERSON: I think you should just put to this witness, what your instructions are, because we seem to be going in some details, we have no idea what is it that you are disputing from his testimony.
MR DA SILVA: Mr Chairman, I will put my instructions.
CHAIRPERSON: Yes, just put it to him and let's hear what he has to say.
MR DA SILVA: Mr Mbatha, you also testified that you saw this vehicle move from the left to the right in front of you. At the stage that you saw it, were you still on the eastern side of the road, or had you crossed the road, when you're describing this?
MR MBATHA: Would you please repeat the question?
MR DA SILVA: You testified, under cross-examination that you saw the military vehicle moving in front of you, from left to right, in other words, if you look at the letter M, the vehicle was driving in the direction of the Trek Garage to Sebokeng, that was your evidence, you saw it from left to right. I want to know where you were when you saw this vehicle moving from left to right?
MR MBATHA: We were already outside Boipatong, just about to reach the footbridge.
MR DA SILVA: So you were still in the veld, in the open veld, when you saw the vehicle?
MR MBATHA: Yes.
MR DA SILVA: Would you agree with me that the vehicle that you saw did not move beyond the footbridge in Frikkie Meyer Boulevard, in other words it didn't go further than the footbridge?
MR MBATHA: It drove past, it came from the direction of Vanderbijlpark, headed towards Sebokeng, and it turned at the garage, that is the Trek filling station.
MR DA SILVA: Mr Mbatha, my instructions are that the vehicle did not come from Vanderbijlpark. Do you have any comment?
MR MBATHA: I don't know where I should say it came from then.
MR DA SILVA: My instructions are further that the first time the commander of that vehicle saw the group, it was in the vicinity of the robots near the Trek garage. Do you have any comment?
MR MBATHA: I would not dispute that, because the vehicle was just in front of the garage, with their headlights on facing towards the east gate direction. It was shot at when we were just closer to the garage and it proceeded on.
MR DA SILVA: The vehicle moved slowly down Frikkie Meyer Boulevard in the direction of the footbridge, and stopped approximately 50 to 30 metres away from the group, because they were too scared of approaching the group and they were scared they might be attacked by the group. Do you have any comment about that?
MR MBATHA: I don't know anything about that.
MR DA SILVA: The vehicle then turned around and moved back to the vicinity of the robots and it did not turn right in Nobel Boulevard in the direction of Cape Gate. Do you have comment in that regard?
MR MBATHA: I am telling you my first-hand experience.
CHAIRPERSON: You're telling us what you saw?
MR MBATHA: Yes.
MR DA SILVA: I don't have any further questions, Mr Chairman.
NO FURTHER QUESTIONS BY MR DA SILVA
FURTHER CROSS-EXAMINATION BY MS TANZER: Prior to the Boipatong attack, did you know, whether directly or indirectly, any policeman policing the area or the area of the hostel?
CHAIRPERSON: What is the question?
MS TANZER: The question is, did he know any per..., was he aware, did he know of any policeman that were in the Vaal Triangle around the area of the hostel, did he know them by name, either directly or indirectly?
CHAIRPERSON: I still don't understand the question.
MS TANZER: I think the question's quite simple, did he know any policemen, whether directly or indirectly, more specifically indirectly, did he know of policemen that were policing the Vaal Triangle prior to the attack?
MR LAX: Are you trying to say did he know any of the policemen that may have been involved in policing the Vaal Triangle area in the vicinity of the hostel before the attack?
MS TANZER: Yes, that is my question.
MR MBATHA: I knew no police who were policing the vicinity of the hostel.
MS TANZER: Now when you said on the day after the attack Themba Khosa addressed the residents of the hostel, and he was accompanied by policemen... (intervention).
MR LAX: No, the evidence was that two days after the attack, I understood it, the Friday, not the Thursday.
MS TANZER: I apologise, two days after the attack, and he was accompanied by policemen, had you seen these policemen before?
MR MBATHA: No.
MS TANZER: And it was not the policemen that were identified here a few days ago?
MR MBATHA: No, I haven't seen them before, I just saw them for the very first time here.
MS TANZER: Did these policemen identify from which station they came from, or from where they came?
MR MBATHA: I cannot remember whether they said they were coming from Van der Byl or from Vereeniging, I cannot recall.
MS TANZER: Now last question, you said the next day you left early to work, did you take public transport that morning?
MR MBATHA: I boarded a taxi.
MS TANZER: Did you take a taxi from Terela?
MR MBATHA: No, I did not go there.
MS TANZER: I have no further questions.
NO FURTHER QUESTIONS BY MS TANZER
NO QUESTIONS BY ADV LAX
NO QUESTIONS BY ADV SIGODI
NO QUESTIONS BY ADV SIBANYONI
NO QUESTIONS BY MR MAPOMA
CHAIRPERSON: Yes, thank you, Mr Mbatha, you may stand down. There is still no sign of Mr Mkhize.
WITNESS STANDS DOWN
MR STRYDOM: Chairperson, as far as I know at this moment he hasn't arrived, but apparently he works at the taxi rank at Vereeniging, but that's the only information I have, but he's not here.
