CHAIRPERSON: We are now proceeding to the application of Messrs Maqoko and Mjo, number AM0518/96 and AM2007/96.
Could the applicant’s legal advisor please put himself on record.
MR MAGQABI: As it pleases the Chair. Mr Chairman, I am V. Magqabi, I appear on behalf of both applicants.
If it may please the Honourable Committee, I propose that I deal with the application of the main applicant, which is Mr Mjo whereafter I proceed with Mr Maqoko, whose testimony will be largely to confirm that of the main, the first applicant Mr Mjo, to avoid duplication and for purposes of convenience.
Before I proceed Mr Chair, I would like to extend my gravest apologies for some typographical errors that will appear in the affidavit, particularly of Mr Mjo and I request that as we proceed, I respectfully draw the Committee's attention to those errors.
CHAIRPERSON: My first problem, wait a bit, that is the wrong way around, yes, I have got it, the bundle has Maqoko's on the front.
MR MAGQABI: Thank you Mr Chairman. May I then proceed, may then Mr Mjo be sworn in Mr Chairman, thank you.
ZWELENKOSI MJO: (sworn states)
EXAMINATION BY MR MAGQABI: Thank you very much Mr Chair. In leading Mr Mjo Mr Chairman, I will be going through his affidavit.
Sir, is it correct that you are the applicant in the incident of the killing of Joseph Sebatana on the 1st of January 1986?
MR MJO: Yes, that is correct sir.
MR MAGQABI: Just for the record Mr Chairperson, are you going to be testifying in English Mr Mjo, or are you going to be testifying in Xhosa?
MR MJO: I will testify in English.
MR MAGQABI: Very well. Is it correct sir that you are 41 years of age and that you were born on the 28th of May 1957?
MR MAGQABI: Is it further correct that you are a single father of a boy who was born in January 1984 and that you were born in Knysna?
MR MJO: Yes, that is correct sir.
MR MAGQABI: Further is it correct that you joined an organisation, a Youth Organisation in 1985 which was known as SAYO, which was an abbreviation for Sada Youth Organisation?
MR MAGQABI: Is it further correct that this organisation was an affiliate of UDF which in turn was a front of the African National Congress at the time whilst the ANC was banned?
MR MAGQABI: Further sir, do you confirm that the activities of your organisation were generally to carry out the policies and the instructions of the UDF and specifically to monitor and fight oppression that was perpetrated by the apartheid regime through the homeland system and that that oppression took various and varying forms which comprised inter alia detentions without trial, sadistic police tortures, elimination of fellow comrades, both permanently and inexplicable disappearances?
MR MAGQABI: And that in carrying out these atrocious deeds, the Tsebe regime which was the reigning apartheid tool at the time, solicited the assistance of some members of your community and used them as Police informers, who actively participated in stamping down the activities of your youth congress which if I may correct this Mr Chairman, is tirelessly in stead of timelessly, which was tirelessly and fearlessly resisting the suppression and utter disregard of human rights particularly in the then Ciskei?
MR MAGQABI: Further, in line with the spirit and instructions of your mother organisation, street committees were formed in order to facilitate something of a community orientated monitoring of discipline amongst the people of Sada and that that was because the existing government structures were not recognised as they were perceived to be legitimate?
MR MAGQABI: And that yourself and your co-applicant, Mr Maqoko seated next to you, were both members of the street committee and that you received a report that there had been a shooting which involved two brothers and Mr Chairman I request that it be a fullstop after that, and that know as - be deleted. Then a new sentence to begin with Remamba is the one that had fired the shot and he was known to the comrades by amongst others, if Mr Chairman it could kindly be included, myself and my co-applicant. In other words amongst other people who knew this fact, was Mr Mjo and his co-applicant.
MR MAGQABI: Is it further correct sir that Remamba was lured to a house at Madakeni also in Sada which was known as the dark house and that there he was interrogated and you assaulted him with sjamboks?
MR MAGQABI: And that you participated in the assault and that you assaulted him with a sjambok repeatedly and that the purpose of the assault was to cause him to say where the firearm was because it was a danger to the community?
MR MAGQABI: And that he, Remamba, initially denied any knowledge of it and later said it, meaning the firearm, was with a certain Joseph Sebatana, who is the deceased in this application?
MR MAGQABI: Is it further correct sir that you did not personally know the deceased, but that it was stated amongst the comrades that the deceased was another Police informer and they were known at the time as the vigilantes?
MR MAGQABI: And that sir, you were told that the deceased was a Zulu and that he formed part of the Zulu's who were Inkatha Freedom Party members and who were bussed in from Zululand to help the Police in their war against the freedom fighters?
MR MAGQABI: Do you further confirm that the deceased was accordingly fetched by yourself and your co-applicant, Mr Maqoko, that the deceased was fetched by yourself and Mr Maqoko, your co-applicant, but yourself and Mr Maqoko remained in the dark house and did not go to fetch the deceased?
MR MAGQABI: And that both Remamba and the deceased were severely assaulted with sjamboks and in the process they were asked about the firearms and that Remamba then mentioned and I beg the Committee's pardon here, it should say Mr Chairman, it was in the possession of his brother, Mzikaize. If the sentence may please end there, do you confirm that sir?
Mr Remamba then mentioned that it was in the possession of his brother Mr Mzikaize?
MR MAGQABI: And that at the dark house, Mzikaize mentioned that the firearm was available, but that it was at Emampondweni, which literally and here again Mr Chairman, it should be translated and not transmitted, means at Mpondoland and that during interrogation, the deceased had mentioned that what he had was a pellet gun?
MR MAGQABI: And further that he was then assaulted further because he would not say where it was and that it was then decided that the gentleman should be taken to a spot near the river because they were screaming and that would invite the attention of the Police? Is that correct?
MR MAGQABI: And further Mr Mjo, that at the river the assaults continued and particularly against the deceased and that it is difficult to say what every person used to assault the deceased, but you both used sjamboks to assault the deceased repeatedly and severely and that further the blows were inflicted both on the body and the head of the deceased indiscriminately?
MR MAGQABI: And further sir, that the deceased mentioned whilst he was being interrogated and assaulted in the dark house, that he had given the gun to one Nota who was also fetched and assaulted and that he also denied any knowledge of the gun and he was however, not assaulted seriously?
MR MAGQABI: Further that at the river the deceased mentioned that he had hidden the gun under his hi-fi set in his house and that some comrades were sent to look for it, but searched in vain?
MR MAGQABI: And further sir that the deceased then changed his version to say that he had hidden the gun underground next to the toilet of his house?
MR MAGQABI: And that this time, you all went with the deceased to his house but by this time, he must have been seriously injured, because he had to be carried by Remamba on the way and that he also did not find the gun after digging and you decided to disperse?
MR MAGQABI: And that on the following day, you heard that the deceased had died from the, and I beg the Committee's pardon, it should be the injuries, that had been inflicted by you on the previous day?
MR MAGQABI: And that you then approached his wife and asked her not to inform the Police that the deceased had died from your assaults, she should rather say that she picked him up next to the road, and she did not know his assailants?
MR MAGQABI: That you also tried to get the Undertaker to take the corpse without informing the Police, but he would not hear of it and insisted on the Police report?
MR MAGQABI: And that you later heard that your co-applicant had been arrested by the Police and you decided to flee to Queenstown in order to evade arrest?
MR MAGQABI: And that you were subsequently arrested, convicted and sentenced to death which sentence was later converted to 20 years plus one year, and that you have to date served 11 years of that sentence?
MR MAGQABI: Do you further confirm sir, that you once acted for a continuous period of eleven months as the Chairman of SAYO and that at the time of the incident, you were an ordinary Executive member of the same organisation?
MR MAGQABI: Do you further confirm that the purpose of assaulting the deceased and of course all the other vigilantes, should be was twofold Mr Chairman, to dispossess them of their lethal weapons which you believed were given to them by the Police namely the guns, and to punish them for aiding the enemy who were hell bend in crushing the people's resistance and legitimate war against apartheid?
MR MAGQABI: That sir, notwithstanding your conviction and failed appeal, it was never your direct intention to kill the deceased? That you however, admit that your actions were reckless as to whether he died or not?
MR MAGQABI: Do you further confirm that you pray that it may please the Commission to consider your application positively and that you did not commit the act elaborated here above for any personal gain or benefit?
MR MAGQABI: And that you were part and parcel of comradeship of the UDF who were executing the armed struggle and I request that the of there be omitted Mr Chairman.
Now sir, that you respectfully submit that your application complies with the requirements of the Act and that as a member of SAYO which was affiliated to UDF, you carried out instructions albeit tacit of the UDF, Mr Chairman, I am sorry and that you have made full and proper disclosure to the Committee?
MR MAGQABI: Sir, can you tell the Committee how you feel about your actions on the day in question, today as you sit here?
MR MJO: Well, I see my actions as brutal and according to myself, I find that I have done wrong, more than the people, but to God, because a person is an image of God so therefore I feel very sorry for what I have done.
MR MAGQABI: Sir, have you disclosed all the facts that took place on that day in question before this Honourable Committee?
MR MJO: As far as I can remember, I have disclosed.
MR MAGQABI: Mr Chairman, thank you very much, that will be all for Mr Mjo.
NO FURTHER QUESTIONS BY MR MAGQABI: .
CHAIRPERSON: I take it the victims have been notified and there is no appearance for them today?
MR MAPOMA: Yes, Chairperson the victims have been notified and in fact they have faxed to us acknowledgement of receipt of our notices. I do have them with me.
CHAIRPERSON: Fine. Do you wish to ask any questions?
CROSS-EXAMINATION BY MR MAPOMA: Yes, sir. Mr Mjo, it would appear that the deceased was assaulted because there was a suspicion that he had a gun, would you tell the Committee what was the basis of that suspicion?
MR MJO: The suspicion that the accused had a gun, came from one of the people who shot his brother, the man was Mr Remamba, it was Remamba Matiwani.
CHAIRPERSON: What was the second name, Remamba?
MR MJO: Remamba, that is the name.
MR MAPOMA: Where was Remamba when you assaulted the deceased?
MR MJO: Remamba was also there.
MR MAPOMA: Was Remamba a member of any political organisation?
MR MJO: No, Remamba was not a member of any political organisation, but he was one who was shooting his brother.
ADV DE JAGER: Sorry, could you just make it clear, did Mr Remamba kill his own brother, or shot his own brother?
MR MJO: No, Remamba shot his brother, but missed him.
CHAIRPERSON: He shot at his brother?
MR MJO: He shot at his brother, yes.
ADV DE JAGER: And then this Mr Remamba who took a shot at his brother, informed you that Mr Sebatana had a gun?
MR MJO: Yes, it is Remamba who told us that Joseph Sebatana has got a gun.
MR MAPOMA: Is it the gun which he alleged that you have used when you were shooting at his brother, that you wanted to get from Sebatana?
MR MAPOMA: Mr Mjo, what political objective did you intend achieving by assaulting Mr Sebatana?
MR MJO: The thing which caused that Mr Sebatana to be brutally assaulted that way, it was alleged amongst the comrades in the dark house, that he is one of the Zulu's coming from Zululand, because he was - the way he was speaking, he was not speaking Xhosa that time, and there were some Zulu's that were there in that vicinity of Queenstown, helping the Police.
MR MAPOMA: In what way were those alleged Zulu's helping the Police?
MR MJO: These people during the unrest in Queenstown, they were amongst the Police who were harassing the comrades at Queenstown now, so ...
MR MAPOMA: Apart from what you heard from Remamba, did you have any other information about the deceased, the activities that you had just highlighted now?
MR MJO: As I have said that I don't know the deceased, but at the dark house, when he was brought there by some of the comrades, it was alleged that he is one of the vigilantes who were harassing comrades in that vicinity of Madakeni location.
So it is then that we started to know him.
MR MAPOMA: Now, I've got a difficulty here Mr Mjo, perhaps you can explain. My impression is that you assaulted Mr Sebatana because you suspected him of a pure criminal activity and yours was a pure criminal act in retaliation to that criminal activity. How do you explain that politically?
MR MJO: I can explain that in this way - as I was one of the members of the street committee then, our aim then was to see to these criminal activities that was being done in the location, the main cause now which led to the point that the man was killed, is that one meaning Mr Remamba, shot his brother, meaning that was the criminal activity.
We started to stop that and we wanted to confiscate the gun so that no action like this can happen again in our area.
MR MAPOMA: Would it not serve the purpose lawfully if you were to report him to the Police?
MR MJO: Well, during that time, the Police already ran away from the location because they were in fear of the comrades, because we took Police as illegitimate organs of the government.
There were no Police there and I even can go and report the matter to the Police, it will be now against the way of our thinking then.
MR MAPOMA: No, if you were to report the matter to the Police, you would not be informing to the Police as such because you would be taking a criminal who was acting against the community interest, to the Police?
MR MJO: I do understand what you are saying sir, but if you can care to understand the situation then, and how we were functioning, and the relationship between us and the Police, you will find that there were no point where we can go to the Police and report any matter.
MR MAPOMA: Are you saying you lost confidence to the Police's system at that time, period?
MR MAPOMA: Thank you, no further questions Mr Chairman.
NO FURTHER QUESTIONS BY MR MAPOMA: .
RE-EXAMINATION BY MR MAGQABI: Other than that criminal element that sparked this whole incident, was there any political factor that gave rise to the assault that was perpetrated against the deceased?
MR MJO: As I have said that before that, before the accused was being fetched in that house, by the time his name was mentioned, one of the comrades in this dark house, mentioned that this Joseph Sebatana is one of the vigilantes created by the Police in that Madakeni location, so that is why I can put it that there is a spark of political connectation which led to the assault of the deceased.
MR MAGQABI: Thank you very much Mr Chairperson, that would be all.
NO FURTHER QUESTIONS BY MR MAGQABI: .
CHAIRPERSON: I have one question which either your client or you can perhaps clear up for me. Who is Nota Elvis Dyani?
MR MJO: Nota is one of the chaps who was mentioned by the deceased, that he's got the pellet, but the pellet is by Nota.
CHAIRPERSON: You were convicted of assaulting him, were you?
MR MJO: Yes, I was convicted of assaulting him.
CHAIRPERSON: But you are not asking for amnesty?
MR MJO: On my part, I am asking for amnesty in all that I have done.
CHAIRPERSON: You haven't mentioned that assault in your application or in your subsequent affidavit, have you?
MR MJO: As far as I, if I understand clearly, there is a mention that assault was being done unto him, but not as the way it was done to the deceased.
CHAIRPERSON: Where is this mentioned?
MR MAGQABI: If I could respectfully refer the Chairperson to page 4 and paragraph 14 of Mr Mjo's affidavit.
CHAIRPERSON: There he says that he was not assaulted seriously. It is a very fleeting reference which says he was not assaulted seriously? Shouldn't he have dealt with it?
MR MAGQABI: Mr Chairperson, I have to concede that it certainly was also relevant. I have noticed that it is not in the application Mr Chairperson, I am not very sure if it will be appropriate to lead him on that, that is the applicant.
CHAIRPERSON: I see it is mentioned in the affidavit, it is perhaps being a bit technical, it was part and parcel of the same. If he can just confirm that in fact, Nota was also struck with a sjambok?
MR MJO: Yes, that is true, Nota was also assaulted with a sjambok, sir.
ADV DE JAGER: At the end of the assaults and thinking back about it now, do you think he really had the gun?
ADV DE JAGER: Do you think the deceased really had a gun?
MR MJO: No, when I am sitting and thinking, it came to me, it gave me a doubt that the deceased was having a gun really because all the places that he said where he placed the gun, when we go to those places, we didn't find the gun.
ADV DE JAGER: Do you think he only mentioned those places in order to avoid further assaults?
MR MJO: According to my thinking, yes.
ADV DE JAGER: Do you know whether in fact he came from Natal and whether he served as a member of the vigilantes?
ADV DE JAGER: Do you know whether he in fact came from Natal and whether he was a member of the vigilantes?
MR MJO: Even today there is a talk that he is coming from somewhere, but he is not somebody who is staying there, but there is a talk of that he was one of the vigilantes. It is still on, although we are in prison, so now I can't be sure whether that is it but as people are talking of it, that he was one, I have still got that.
CHAIRPERSON: If he was one of the vigilantes, he would have been issued with a gun by the Police wouldn't he?
MR MJO: He could be offered a gun, at the same time, he could not be offered a gun, he could be offered something else.
Some vigilantes who are being trained, who are being created by the Police, don't have guns but they beat people with sticks, sjamboks and all that.
CHAIRPERSON: The other factor that perhaps indicates that he wasn't temporarily there is he had a wife there, didn't he?
CHAIRPERSON: He had a wife there?
MR MJO: Yes, he have a wife. I don't know whether it is a wife or whether it is somebody who stay with him.
CHAIRPERSON: She was referred to as a wife during the trial, wasn't she?
MR MJO: Yes, she was referred to his wife.
CHAIRPERSON: Count 3 was in connection with her, that she was assaulted too?
MR MJO: According to my understanding, no.
CHAIRPERSON: Wasn't it alleged in the charge sheet that paraffine was poured over her in the house?
MR MJO: Yes, there is a talk of paraffine, but not assault.
ADV DE JAGER: Was there an attempt to set her on fire?
MR MJO: Yes, there was an attempt.
MR MJO: By some of the people who were there, but I am not sure who was he because by the time, it was dark then.