MR SIPHO: The next applicant that I am calling is Mr Magula, whose application form is on page 141 and his evidence was dealt with on page 255 of the judgement.
MZWANDILE JUSTICE MAGULA: (sworn states)
CHAIRPERSON: Thank you. Mr Sipho?
EXAMINATION BY MR SIPHO: Thank you. Mr Magula, how old are you?
MR SIPHO: Where did you live during 1991?
MR MAGULA: At Nhlalagahle township in Greytown.
MR SIPHO: Did you belong to any political organisation?
MR SIPHO: Okay. Do you know the deceased in this case?
MR SIPHO: What organisation did she belong to?
MR MAGULA: I knew her as an ANC member.
MR SIPHO: You have heard all the evidence that has been led in this case thus far. Do you associate yourself with the evidence that has been led?
MR SIPHO: Have you also been released on parole as a result of having been convicted in this case?
MR SIPHO: What exactly did you do in relation to the assaults upon the deceased?
MR MAGULA: I was present when she was stabbed.
MR SIPHO: Did you also stab the deceased?
MR MAGULA: Although I cannot remember well, it was more than once.
MR SIPHO: Okay. Did you do this with your own knife or with somebody else's knife?
MR SIPHO: Were you also part of the crowd that assaulted the deceased earlier that day, before she was taken to Msolo's house?
MR SIPHO: Okay. How did you assault her there?
MR MAGULA: I assaulted her using my hands and feet.
MR SIPHO: Here again members of the Committee, I intend to leave the evidence at this stage. We will take it up if there is any cross-examination that requires re-examination.
NO FURTHER QUESTIONS BY MR SIPHO
CHAIRPERSON: Ms Thabete, do you have any questions to ask the witness?
CROSS-EXAMINATION BY MS THABETE: In your opinion, Mr Magula, why was the victim, why did you kill the victim?
MR MAGULA: In my opinion, that time, the situation at that time was turbulent and I found the deceased to be at fault.
MS THABETE: Why was she at fault?
MR MAGULA: She was found at a wrong place, where she was not supposed to be.
NO FURTHER QUESTIONS BY MS THABETE
CHAIRPERSON: Mr Sipho, any re-examination?
MR SIPHO: I've got no further questions.
MR LAX: Thank you Chairperson. In your form you say you were a member of the SDU. Were you a member of the SDU?
MR MAGULA: No, as far as I know I found our role to be similar to that of the SDU, because we were protecting the community.
MR LAX: Why did you write SDU in your form?
MR MAGULA: I regarded our job and the SDU's to be the same.
CHAIRPERSON: Sorry, just while you are dealing with this, Mr Magula, at the time, was there in fact a Self Defence Unit of the ANC or the UDF in place in Nhlalagahle township?
MR MAGULA: As far as I knew, there was none, but from what I heard about how they operate, I understood how they work.
CHAIRPERSON: But were you, would you, although you were a young man at the time, would you have classified yourself as being reasonably politically aware?
MR MAGULA: I was in line, or I supported whatever the ANC did in my area.
CHAIRPERSON: So if there was an SDU, would you have known of it, a properly established SDU?
MR MAGULA: Yes, I would have known if it was under the organisation that I belonged to.
CHAIRPERSON: Yes, thank you Mr Lax?
MR LAX: Thank you Chairperson. Just one other aspect. At page 145 of the papers, this is a translation at 11(a) "even though the Chairman of the ANC at Nhlalagahle denied it", what are you referring to there?
CHAIRPERSON: Have you got page 145 in front of you Mr Magula. Perhaps you should take a look at it, it is page 145 and there is a question there, numbered 11(a). If you take a look at the answer that has been written there, that is a translation of what you wrote in the Zulu.
I don't know personally whether it is an accurate translation, but if it is not, then you can dispute it.
MS THABETE: Can I interfere Mr Chair. It is not a proper translation.
CHAIRPERSON: What do you say it should be Ms Thabete?
MS THABETE: Reading from his application in Zulu, it says even though the Chairperson of the ANC at Nhlalagahle gave the order, the aim ...
CHAIRPERSON: It is gave the order, instead of denied it?
MS THABETE: Yes, I apologise to the Committee for that.
CHAIRPERSON: In other words we should delete denied it, and say and substitute it with gave the order?
MR LAX: Can you just do this, can you just read the whole thing in Zulu and let the translator just tell us what it says.
INTERPRETER: Even though the ANC Chairperson in Nhlalagahle gave the order, but the objective was to keep the community safe.
We were also fighting for the liberation and also seeking peace in the area.
MR LAX: Thank you very much. Let me say, I am not for one second doubting your ability Ms Thabete, it is just better that the people who are professionals, do it.
CHAIRPERSON: That takes care of that?
MR LAX: That takes care of that issue, thank you Chairperson.
CHAIRPERSON: Mr Magula, had you been indulging in drinking liquor that day?
CHAIRPERSON: And your other comrades?
MR MAGULA: Some of them had been drinking.
CHAIRPERSON: Who do you know had been drinking of the people that you were with?
MR MAGULA: As well as Xolani Tsotetsi.
CHAIRPERSON: How would you describe the condition at the time of the stabbing, of Xolani Tsotetsi?
MR MAGULA: He was not very drunk.
MR MAGULA: He was drunk, you could see it on his face.
CHAIRPERSON: Any questions arising - sorry.
MR LAX: Sorry Mr Chairperson, just one other aspect. Including all the people that were involved in this killing, not just these applicants, who else was drinking or had been drinking?
MR MAGULA: The one that I remember is Spelo Khanyile and Tutugo, those are the two people that I remember.
MR LAX: And any other of thee applicants?
MR MAGULA: Just the people that I have already mentioned.
MR LAX: Thank you Chairperson.
CHAIRPERSON: Any questions arising Mr Sipho?
MR SIPHO: No, thank you Chairperson.
NO FURTHER QUESTIONS BY MR SIPHO
MS THABETE: No questions, Mr Chairman.
NO FURTHER QUESTIONS BY MS THABETE
CHAIRPERSON: Mr Magula, thank you. That concludes your evidence, you may stand down.
MR SIPHO: Thank you, I think I have actually concluded the evidence of all the people whose applications can be heard today. There are three other persons we dealt with earlier, whose applications can't be heard any further.
I am not leading any further evidence at this stage.
CHAIRPERSON: Thank you Mr Sipho. Ms Thabete, any further evidence?
MS THABETE: No further evidence Mr Chairman.
CHAIRPERSON: Thank you. Mr Sipho, are you in a position or will you be in a position to argue or make submissions after the lunch adjournment, I see it is nearly five to one now?
MR SIPHO: Yes, that will be all right.
CHAIRPERSON: Thank you. This would then be a convenient time to take the lunch adjournment and then when we resume after lunch, Mr Sipho and if she so desires, Ms Thabete will make submissions to the Committee. Thank you, we will take the lunch adjournment.
CHAIRPERSON: Mr Sipho, are you in a position to make submissions?
MR SIPHO IN ARGUMENT: Yes, I am, thank you. I submit that the killing of the deceased in this matter, was politically motivated and I seek support for that submission from the judgement which is before you at this stage.
You will note from the summary of substantial facts, which is set out at page 190, that this actually begins with an introduction of the accused as members of amakubani, that is the comrades, which was aligned to the African National Congress in the Greytown area.
I know that some of the accused, when they gave, or some of the applicants, when they gave evidence this morning, didn't seem to know very much about different structures and so on, but I think what was common through out in respect of each and every one of them, was that they had in fact aligned themselves with the ANC.
They all regarded the IFP as an enemy. If anybody had gone along onto the other side, they were regarded as somebody that should be dealt with. I think that was fairly common knowledge amongst all South Africans during the period when this incident took place.
The statement goes on to of course describe the deceased as a member also of the ANC, and it also describes the compound at which the deceased was seen, as a place frequented by the members. It was also - the State also sought to prove that the deceased's name was on a list of persons supporting the IFP.
All of that suggests very strongly that what the State had set out to do, was to prove that there was a political motive for the killing. It led evidence to establish this motive, and also led evidence to align the applicants with that motive, and having established that motive, it then found that all the accused were guilty of this offence on the basis of a common purpose.
The common purpose being the political motive to kill this person.
That prevailed, even though the Judge at page 281 found that there was no evidence that actually, that accused 5 actually participated. He found them guilty on the basis of this common purpose, which was a political motive.
I also then want to refer the Committee to various parts of the judgement from which I also seek to draw support for this submission that it was a political motive, which inspired this killing.
If one looks at the record, from page 202 at line 20, the Judge sets out facts which he said were either common cause or were not seriously disputed. If I could just turn to page 202, you will find that at line 20, the facts which he said were common cause, where a township is largely inhabited by members and supporters of the African National Congress, Mr Msolo is an influential member of the township and he is charge of the youth movement of the ANC in the township, that the HLH compound is inhabited by members and supporters of Inkatha Freedom Party, and the deceased lived in the township. On the 28th of September 1991, was seen in the compound. He then sets out the two witnesses there who were members or supporters of the ANC.
And that it was their duty to fight, duty of the ANC to fight the enemy that is Inkatha. That was either common cause or it was not in dispute. That was basically the basis upon which this whole case was founded.
I submit that the Judge throughout was very much alive to these facts. So much so that they have all been enumerated here. I submit that it will be artificial for us now to look at other extraneous factors to find that maybe it wasn't politically motivated.
I submit that even though some accused appeared as if they might have been too drunk to have known what they were doing, this, the evidence that was before the trial Judge, took place shortly after the offence itself was committed, and in regard to the question of the intoxication, at page 290, the Judge said that accused - page 290 - the Judge said that accused 5, 6 and 8, don't consume liquor. 1, 2, 3, 4 and 7, he said that liquor had some effect on them.
I submit that that evidence was led before him, some time, possibly in 1992 and a lot of things might have been a lot clearer at that time, than they were now to the accused, who is basically thinking back and there were certain questions about how much he drank and so on, on that day, without him realising where this was getting to, obviously.
It looked as if he may not have been aware of what he was doing at the time, but I submit that the overall impression was that they knew one thing, and that was that they were ANC members and the other side was Inkatha, and somebody had gone across and they were also aware of the fact that information was being passed on to the other side, which resulted in the death of a number of people belonging to the ANC.
In those circumstances, it would seem that they believed that a killing in those circumstances, would be justified because not only had people on their side been killed, by that by killing this person, they might put a stop to further killings in the area.
CHAIRPERSON: Yes, there doesn't seem to be much other motive for the killing. It has been alluded to that maybe there was a romantic link between the deceased and one of her assailants, but that hasn't really come out?
MR SIPHO: Sorry, yes, I think that was actually put to try to dispute the version of I think it was, accused 2 in the trial, because he was being called upon to give some explanation of what he thought the assault on the deceased was about.
At some point he said he thought it was a lover's quarrel. And I think that is where that idea came from. I don't think there is much support for it anywhere else.
CHAIRPERSON: It has just been mentioned, it hasn't been grasped at all at any stage. Besides that, there doesn't seem to be any other motive, such as personal gain, robbery or there wasn't any indecent assault or anything like that at all, either.
MR SIPHO: No, there was no suggestion of that, whatsoever.
I think that romantic link was just there to try to, it was possibly put up by one of the applicants and the Judge didn't believe that, I think. Throughout, I could of course take the Court through each and every notation that I have made, but that is going to run into a number of pages, but in almost every page, and I can tell you that without exception, each and every one of the accused, was questioned in a manner that was going to reveal a political motive.
For example, accused 1 at page 237, some question was put to him where he was made to concede that it would be an offence for a township dweller to be at the compound, and of course in terms of the summary of facts, a township person was an ANC person, and the person who lived at the compound, was Inkatha.
Of course you could see that the Judge made quite a lot out of the fact that he found that almost every accused, or a large number of them, actually were shying away from making any admissions about the fact that they were in any way aligned or associated with the ANC, some of them even went to far as to say that they were not quite aware of the difference I think, between the ANC and Inkatha.
So basically their whole purpose was to try and keep that out, and of course they can't quite be criticised for not aligning themselves to the ANC, because the ANC as we know, had been banned for a very long time, and it was actually an offence to have anything to do with the ANC.
In fact, I think we all remember the days when indictments in the High Court for treason always started off by saying that so and so was a member of the ANC, whose purpose it was to violently overthrow the government by making the country ungovernable.
I mean, if they said that they were members of the ANC, and what they had done, that could well have been construed as an attempt to make the country ungovernable and they might well have been guilty of treason.
In that court, I think all the accused had to basically go through a kind of balancing act and I know the situation of people who were members of the ANC at that time, because they were all faced with a dilemma, how do you go and give evidence in court, and deny I am a member of the ANC.
We all wanted to say yes, I am a member of the ANC. But to say so, would mean a conviction and a sentence of a far worse order.
MR LAX: Sorry Mr Sipho, except to say that this happened in 1991, the ANC was unbanned in February 1990. I can accept the reasons given by the applicants themselves, but I think perhaps your argument is taking it a bit further than they themselves intended.
Their submission essentially was to the effect that they perceived the Court as a government structure, and they perceived the danger to themselves in admitting that they were ANC, as possibly bringing retribution on their families and on themselves.
I think, let's not traverse that, what I would really like you to just check is, when I read the judgement and when I read the passage you referred us to, it specifically states there that accused 6, who is Xolani Pungula, in fact indicated in the trial that he hadn't been drinking at all, and he is referred to as one of the people who, no finding that he was drunk, was made in respect of at the trial.
To rely on that in respect of him, here at this stage, I find it rather strange. Maybe you can just address us on that aspect specifically.
MR SIPHO: Sorry, could you just refer me to which judgement I spoke of?
MR LAX: You referred us to page 202, line 20 and then to 290, paragraph 6. It says the evidence establishes that accused 5, 6 and 8, do not consume liquor. Accused 6 was the person whose evidence today is that he was pretty drunk, so drunk that he didn't really have an appreciation of what was happening.
MR SIPHO: In response to that, I hadn't been presented to the evidence that was actually led in respect of that.
I seem to recall that there was talk of being drunk in respect of a few of the accused and I am not sure whether accused 6 was actually included in that lot.
I do now know that it was accused 6 who said that he had actually been drinking. I am not sure if that actually destroys the argument that I was trying to suggest that whatever the position was in regard to the alcohol at that stage, it may be that the accused when he is talking about how drunk he was now, could well be overstating the position which existed at that time.
Because he is now casting his mind back to a period during which he had actually served eight years of imprisonment and then going back and talking about something which happened at that time.
MR LAX: All I am seeking to request you to perhaps address us on is the contradiction between the finding of the Court, in respect of the evidence led at the trial, that he didn't consume liquor at all and his evidence today, that he was quite drunk, and at least in respect of the answers he gave to the Chairperson's questions, didn't really, wasn't aware of what he was doing. That is how he put it.
Because if he wasn't aware of what he was doing, the question then becomes how did he form a political objective. That is really the issue I am trying to canvass. You quoted us that paragraph as indication of the fact that he had been drinking.
MR SIPHO: Sorry the point that I was trying to make there, was that although people had been drinking, and that there was evidence that drinking had taken place, it would seem that the Judge didn't find that anybody was so drunk that they would not have been able to form an intention.
He said that for those people where he found that alcohol had been consumed, they could have been effected to some extent by it, and he found that as a mitigating factor, but obviously if he found it to be a factor where they were not capable of forming an intention, then perhaps they may not have been convicted at that stage.
MR LAX: I think the Judge would have referred to that in the light of the decisions in Kretty & Others which in those days, would have indicated that alcohol was an aggravating factor in some instances.
Obviously it wasn't so much so that it took away their intention. So maybe I see your point that you are making.
MR SIPHO: Thank you. Could I proceed from here onwards? There was also evidence before the Court, that it was a high ranking member of the ANC, the Chairman at the time, Mr Msolo, who had given an indication to the applicants that this person should in fact be killed. Basically it seems as if they were carrying out a political instruction, even though they possibly had the same fate for this person, in mind.
Now, I don't intend, unless the Court wishes me to do so, but I have references here to just about all parts of the judgement, which basically brings out the link between the killing, Inkatha and the ANC.
CHAIRPERSON: I don't think it will be necessary to refer us to all of them. We have read the judgement.
MR SIPHO: Sorry, the only other point that I think I wish to make is that as the applicants saw it, they were in a situation where people on their side were being killed, and it would be the only safe way to stop this happening, was basically to kill off that person.
I submit that the Court a quo did find that there was a political motive, which gave rise to this killing, and I submit that this Committee should not make any different finding in that regard.
CHAIRPERSON: Perhaps, if you could just address us on one point that you have just alluded to now. You have said that in the applicants' minds, the only way to stop the killing of their people, people and supporters of the ANC, was to kill the deceased, who was an informer, a member of both the ANC and the IFP.
On that question, that then raises the point of proportionality. Could they not have expelled her from the community, got rid of her that way, rather than take it upon themselves, although I did take it into, we are aware that they didn't only take it upon themselves to kill her, there was this order from Msolo, but if you could just briefly address us on the question of proportionality as that is one of the criteria we have to take into account, in terms of Section 20(3).
MR SIPHO: I think we have to take into account the factors and the circumstances which existed at that particular time. I think it was something that was being done all the time, where if somebody belonged to a different faction, they were a danger to you, it seemed that the only way in which that could have been put an end to, was by actually killing them.
I am not saying that that was the right thing to do. That was the thinking at the time to a very large extent and that is why there was a lot of deaths during that period.
As far as they were concerned as well, if one had to expel her from the community, they would never be sure what further harm would befall them, because they would be letting a person loose to which ever other party she may want to go to, knowing everything about them.
That might in itself have created a further danger, it wouldn't have put an end to the problem, as far as they were concerned.
CHAIRPERSON: Do you have any further submissions Mr Sipho?
MR SIPHO: I simply wish to submit that it was a political killing and (indistinct) amnesty which we have applied for in this matter.
CHAIRPERSON: Thank you. Ms Thabete, do you have any submissions to make?
MS THABETE IN ARGUMENT: Yes Mr Chair. Clearly what the applicants did, could not be perceived as a criminal act so to say, nor ...
CHAIRPERSON: A purely criminal act? When you say a criminal act, you mean a criminal act without ...
CHAIRPERSON: A political motive?
MS THABETE: Yes, without a political motive. And also it doesn't look like they committed the act for any personal gain per se.
However, I think there are weaknesses in the whole scenario of their actions and other factors that I would like the Committee to consider.
For example, the issue of proportionality that is the way and the extent of violence used to kill the deceased. Why I am saying this, it is because it appears from the judgement or the indictment that the deceased was 20 years old, she was very young. The applicants as well, were very young.
What they did, that is the applicants, it is true, it can't be said to have been right or wrong, but they attacked a 20 year old, who was naive like them, who was defenceless and the extent of violence that they used, maybe the Committee members can consider that, or maybe my colleague can explain.
CHAIRPERSON: I think they have explained the violence, we know that the deceased, well, she died of multiple stab wounds, and we know that there were eight or more than eight attackers, about 10 and that they all agreed that each and every one of them, would have to actually stab her because they all started it, they must all end it and they didn't want anyone to say well, why did you do it, I didn't?
MS THABETE: That is exactly my point, I think it could have been done in another way. I am not questioning whether it is wrong or right, but I am just looking it as a short sightedness on their part, that I mean, this person was young, she was defenceless. It was not like she was armed or anything.
It wasn't necessary really for them to attack her, all of them, to stab her. I mean there were eight of them. She was the only one, and she was the same age as them really, so to say. That is exactly my point.
However, I do not object or question their political beliefs or the political climate of the day at that time. Even the judgement, as my colleague has said, refers in a number of pages, refers to the political climate at that time, more especially the rivalry between the IFP and the ANC.
Also what I wanted the Committee to think about, and maybe my colleague to respond on, is the fact that it would seem that the applicants decided to assault and eventually kill the deceased, long before she even responded to their questioning, as to what she was doing in the compound. It looks like by just going there, they had decided that they are going to kill her.
Such that it didn't matter whether she would have admitted to the fact that she was a spy or she would have denied it. It looked like they had already decided that they were going to deal with her and probably kill her.
Maybe you can respond on that as well. I also - but the Judge has raised that, maybe I should leave it.
CHAIRPERSON: You can address us on any point, whether I have raised it or not.
MR LAX: Just on that point, maybe you can in the light of your remarks, if they had already decided to kill her, just address this issue, why then didn't they kill her there and then, instead they took her to Msolo's place, they went through a trial, Msolo then gave an instruction. Doesn't that mitigate against the thrust of the point that you are making?
MS THABETE: My point was the assault happened even before the questioning that took place, so maybe the decision to kill her, was taken after she had been questioned, but it looks like to me, by the time they went there, they had already decided that she was - I don't want to say guilty - but she had you know, the relationship, or she was working in collaboration with the IFP and the police.
Another matter I wanted to raise, even though it was raised by the Honourable Judge partly, is the fact that it is interesting that considering the age of the victim as well, and the fact that she was naive and probably politically ignorant to the implications of what she was doing, or rather the consequences of her actions, just like the applicants appeared to have been ignorant and naive.
It is interesting that a warning wasn't considered or another punishment, short of death wasn't considered, which also brings the issue of proportionality.
However, like I have stated before, in the judgement it refers to the political climate of the day. In my opinion really, and as the judgement has put it clearly, there was political violence between IFP and ANC, and I wouldn't object as such to the Amnesty Committee granting amnesty on the applicants.
CHAIRPERSON: Thank you Ms Thabete. Mr Sipho, do you have any reply?
MR SIPHO IN FURTHER ARGUMENT: Just on the point at which I was invited to respond, and that was whether there was any intention that was formed at the point which the deceased was first accosted by the applicants, and I agree with the learned Committee member, that if that had been so, why would they have taken her to Msolo, they would probably have done what they had to do there and then.
And it also seems as if that when they got to Msolo's place, Msolo's initial instruction was to leave her there overnight, and I think the enquiry was to take place the following morning, except that he thereafter gave some sort of signal as to what should be done.
I seems as if the applicants would have been quite prepared to comply with his initial requirement that she be left there that night, and if he hadn't given that signal, possibly nothing further would have happened that night. I think that we are speculating a little bit too much to say that they had already formed the intention to kill her at the time they first accosted her.
CHAIRPERSON: I think, well this is all speculation, but if they went to Msolo as they went and Msolo said she shall not be killed, then she probably wouldn't have been killed?
MR SIPHO: Yes, I agree with that, she probably wouldn't have been killed, and I think that also goes against the idea that they probably already had the intention to kill.
I don't think that view can be supported.
MR LAX: They may have wanted to kill her. If Msolo had said don't kill her, it is highly unlikely that they would have gone against his wishes and that much is evident from the judgement and in that respect, the learned Judge in the matter found mitigating circumstances in their favour with the fact that they were sort of under his command so to speak.
I think we can rest assured on that one.
CHAIRPERSON: Yes, thank you very much, we will reserve our decision in this matter. We will hand down a written decision in the near future, hopefully in the very near future.
I would like to thank Mr Sipho and Ms Thabete for the assistance they have given to us during this hearing and Ms Thabete is that the end of the roll for today?
MS THABETE: That is the end of the roll for today.
CHAIRPERSON: And tomorrow we have two matters set down. Have you managed to arrange with any of them to be able to start at nine o'clock or not?
MS THABETE: I have phoned the prison that they must try and bring them by nine o'clock, they said they would do their best.
CHAIRPERSON: And the legal representative?
MS THABETE: I phoned him during lunch, but he was consulting. I left a message for him to call me back. I will make a follow up.
CHAIRPERSON: I think what we will do then, we will then adjourn now until nine o'clock tomorrow morning.
CHAIRPERSON: And hopefully we will be able to start at that time.
MS THABETE: I will ensure that we start at nine o'clock.