CHAIRPERSON: We are going to commence our proceedings today by pronouncing our decision in respect of the application in respect of Mr Gladwell Selahle that we heard yesterday. The application by Mr Selahle was in terms of Section 18 of our Act and it was in relation to the murder of Joseph Mkhanela committed on the 16th March 1994 at the corner of Roets Drive and Moagi Street in Vosloorus. We have been advised by the evidence leader that a Section 19.4 notice was served on one Christopher Mkhanela who is the brother of the deceased and that Mr Mkhanela on accepting delivery of that notice did not object to short notice and intimated that he would be present during the hearing of Mr Selahle's application. Unfortunately it would appear that he did not turn up when this application was heard yesterday.
The applicant gave vive voce evidence and alleged that he was a member of the self defence unit and had been such a member since 1992 after he was recruited by an MK operative by the name of Samuel Mabuja. He stated that Mabuja became a commander of their unit but passed away on the 27th December 1993. It was not crystal clear whether Joseph Letlagelo took over the command of the unit after Mabuja's death. Whilst the applicant indicated that Letlagelo assumed command of the unit after Mabuja's death, it was not clear why as a commander he did not command the operation that led to the killing of Mr Mkhanela. We may at this point tangentially mention that the applicant's testimony was not given in an orderly and comprehensible manner. In fact even the applicant's lawyer considered that the applicant's evidence was haphazardly given. We have not, however, found that this was because the applicant was a dishonest witness but attribute such haphazardness to the manner in which his lawyer sought to lead his evidence in chief. We ourselves were at times not clear what kind of evidence was sought to be solicited from the questions put to the applicant by his legal representative.
The applicant further testified that on the 25th January 1994, whilst he and some of his unit members had gone to Vosloorus Hostel to purchase ammunition from the person who was known by a member of the PAC whose name was Paul and that as they were leaving the hostel they came across three men armed with AK47's who were running into the hostel. They then went towards the direction from which they had heard the sound of gunfire as they were leaving the hostel. On arrival at the scene they were advised by the bystanders there at that the shooting had been committed by persons who were dressed amongst others in overalls and armed with AK47's. The applicant then recalled that the persons he had seen running into the hostel armed with AK47's matched the description given by the bystanders and from that he deduced and believed that those persons were responsible for the taxi shooting that resulted in the deaths of six persons and several other passengers sustaining injuries. It was after this incident that their unit decided to look for the three persons with a view of eliminating them in order to protect the community from any repetition of possible attack by those persons.
He averred that this time the township was engulfed in violence with persons staying in hostels fighting the residents in the township and that it was their primary duty as SDU members to defend the community from such attacks. Significantly, all ANC members that had prior to the height of violence stayed at these hostels had moved out of those hostels because of the conflict and those that had remained and continue to reside at the hostels were perceived to be IFP members and or supporters and were perceived to be hostile to the residents. When he saw the three men with AK47's run into the hostel, he therefore connected these persons with the IFP. It is common cause that during this period there was a deep conflict between the members of the IFP and the ANC in the East Rand and Vosloorus was no exception to this conflict. The whole of East Rand was engulfed in violence that resulted in casualties being suffered by both organisations namely the IFP and the ANC and from the ANC side the SDU's were central in the acts that were launched against the hostel dwellers who were perceived to be IFP members and/or supporters.
The applicant further testified that sometime later one of his unit members by the name of Titus identified Mr Mkhanela as being one of the persons they had seen on the 25th January running into the hostel and carrying AK47 and with this information they decided to investigate the car they had seen him driving when he was from an unnamed factory in an industrial area around Vosloorus. As to what subsequently happened to those investigations it is unclear as no evidence was given in respect thereof. Be that as it may, Mr Mkhanela was again identified on the 16th March 1994 at the corner of Roets Drive and Moagi Street in Vosloorus by the applicants and his comrades when they were returning from a rally. It was then decided that they should kill Mr Mkhanela and then they devised a plan to detract the attention of Mr Mkhanela by sending the applicant to go and ask for a change of a R50 note. Whilst the deceased was innocently attending to the applicant's request for change, one Peter Siani came and shot the deceased at close range. The applicant was arrested immediately thereafter. It was put to the applicant that his application form had made no reference to Peter Siani shooting the deceased during the incident in question and his response that it was that he did not know that he had to provide these details in his application form as he was not given any legal assistance when completing the application form. In fact he conceded that some of the questions on the application form he could not be able to complete himself and he had to rely on the assistance of his inmate in particular one Skinanda to come to his rescue in the final completion of his application form.
This is one of several such applications which brings to focus the profound importance of applicants being legally assisted in completing their application forms as they have no access to lawyers of any kind while in prison and are compelled by circumstances to rely on other inmates for such important assistance. This Committee is aware that even though it has prescribed regulations providing that the commanders should facilitate the acquisition of lawyers when so requested by applicants to assist applicants who are in custody in the completion of application forms. This would appear not to have been complied with by prison authorities. We therefore shall not take a robust view on the glaring lack of detail about the incident in his application form and will only rely on his vive voce evidence. We however hope that this problem will be immediately addressed as it is likely to delay the work of this Committee whose lifespan is too short to accommodate protracted proceedings caused by improperly completed and incomprehensible application forms coming before the Amnesty Committee during a public hearing.
What remains to be conceded by this Committee is whether the applicant was indeed a member of the SDU at the time when he committed this murder and whether Mr Mkhanela could have been reasonably perceived by the applicant to have been a member or supporter of the IFP or whether he in fact stayed or visited the hostel in question at all. This is the kind of information that would have been elicited by our investigative unit during it's investigation of the application as they're required to do so by the Act.
Alarmingly and unfortunately no such information has been placed before this Committee and in the absence of such information the applicant's version remains incontrovertible, namely that he was a member of the SDU and committed the offence for which he seeks amnesty as an SDU member that he bona fide believed Mr Mkhanela to have been an enemy of his community as he was allegedly seen running into the hostel after the taxi shooting which was conveying township passengers and therefore bona fide believed that by killing him, he was protecting his community from further attacks by the hostel dwellers in Vosloorus against whom the SDU's were directing their attacks at the time in question.
In the premises, the applicant is hereby GRANTED AMNESTY or the murder of Mr Mkhanela on the 16th March 1994 at the corner of Roets Drive and Moagi Street in Vosloorus. Thank you.
And it is also the opinion of this Committee that the relatives of the deceased Joseph Mkhanela are victims as defined in the Act and accordingly referred to the Committee on reparation and rehabilitation for consideration as such in terms in terms of Section 26 of the Act.
Mr Mohlaba, that is our decision and would request you to convey it to Mr Selahle. I believe Mr Selahle is here, there was no need for Mr Selahle to be here when we pronounce our decision, however Mr Selahle has now personal knowledge of our decision. This decision will be forwarded to our office in Cape Town without delay.
CHAIRPERSON: Ms Thabete, where do we go from here, which matters arise for us to hear today?
MS THABETE: Madame Chair, can I have a three minute adjournment, I'm just trying to sort that one out?
CHAIRPERSON: We'll grant you a five minute adjournment with a view of making an early start.
CHAIRPERSON: Mr Mohlaba, yesterday you intimated that we will commence today with the application of Mr Garane. Are we in a position to do so?
MR MOHLABA: Certainly Chair, however I have been advised during the adjournment that there may be problems as Mr Garane is unable to identify the victims. He is however ready to proceed.
CHAIRPERSON: I take it that you and Ms Thabete discussed the difficulties that we raised with Mr Garane's application. Are you in a position to address us in relation to the difficulties we identified for you in respect of the offence for which amnesty is being sought?
MR MOHLABA: Certainly Chair, the applicant is applying for amnesty in respect of killing of a person believed to be a member of the Toaster Gang and this person was shot at and he died. He also applied for amnesty for the attempted murder of another person who is believed to be a member of the Toaster Gang as well and he is also applying amnesty for unlawful possession of a firearm and unlawful possession of ammunition.
MR LAX: Now but just to recap, one member of the Toaster Gang killed in a shooting, is that right?
MR LAX: And one assuming injured in a shooting?
MS THABETE: The applicant is not aware of any injuries which was sustained but there was shooting and the firearm was also aimed at him, he does not know whether he sustained any injuries from the firearm which was discharged towards his direction.
MR LAX: Okay so it's just a straight forward attempted murder. Thank you.
MR MOHLABA: And Madame Chair the intention of the applicant in firing at those people was to kill them. The exact location where this incident took place is in the vicinity of the shopping complex next to a four way stop which is found at the entrance as one enters Sangweni Section in Tembisa. This incident took place at approximately 19H00, applicant is not aware of or he does not recall the early date nor does he recall the exact month, he however mentioned that it was on or about September 1993.
CHAIRPERSON: In his application form he has said it could be between September or October. Has he now had an occasion to reflect better to put this incident to be around September?
MR MOHLABA: Certainly not, I tried to find out from him whether he could remember whether it was winter or summer so he said to me it was after September and that could be summer.
CHAIRPERSON: I think this is sufficient, I think it was in
relation to the other incident that we would have wanted that kind of information. If he says that the incident occurred even in September or October I think it makes it easier for the incident to be identifiable.
CHAIRPERSON: Mr Mohlaba, without traversing the evidence that you will be leading shortly after these preliminary matters have been sorted out, are you in a position to assist us by establishing from Mr Garane how he came to know that the person he shot at subsequently died?
MR MOHLABA: Thank you Chair. Mr Garane was in the company of another person who identified these people and this person subsequently died, they were together and the other person who died was also involved in the shooting incident.
CHAIRPERSON: I'm referring to the person who died and in respect of whom he now seeks amnesty. Are you referring ...[intervention].
MR MOHLABA: I'm not referring to Garane's victim.
MR MOHLABA: Garane's comrade who was with him at the time of this incident who subsequently passed away in another incident unrelated to this one. He is the person who identified these people and that happened after some shots were fired and the community dispersed in front of that shopping area and Garane and this other deceased person moved forward and identified those people.
CHAIRPERSON: Is Mr Garane's version of events that he also at that stage noticed that one of the persons that shot at had died as a result of a shooting?
MR MOHLABA: Certainly that will be Mr Garane's evidence. This person died and the firearm was removed from him, next to his body or which was subsequently handed to the police by Mr Garane.
CHAIRPERSON: And his name has never been established by Mr Garane or his deceased colleague?
MR MOHLABA: That is correct, his name was never established.
CHAIRPERSON: I think the reason why we seek this information is to ensure that we balance the interest of the applicant with those of the victims. We are compelled by the Act to notify victims of such public hearings where amnesty is being applied for by the applicants. In this particular incident, such notification has not been capable of being served because the victims are unknown and the information we seek from your client is to try and make sure that when we do a public notice we are able to do a public notice that will capture the area as close as possible as to where the incident occurred with a view of ensuring that the relatives of the victims concerned are able to get notice of the intended hearing. That is why we needed some specifics with regard to the information already supplied to us by Mr Garane because he had not mentioned the shopping complex as well as the fact that the incident happened next to the entrance to Sangweni Section. He just mentioned Tembisa and Tembisa is quite a big place and if we had gone ahead to publish a notice with a view of advising victims who could be involved in this matter, that is one of the people that they attempted to kill and the relatives of the deceased, there would be no reasonable chance of that notice reaching or coming to the attention of the relatives of the deceased, no, the victim to the offence of attempted murder.
Ms Thabete, are we in a position to cause a public notice to be issued in view of the fact that we are unable to serve a notice to any particular person? Now that we have information with regard to the exact location in Tembisa where this incident is alleged to have taken place and if so, how soon can we do that?
MS THABETE: Madame Chair first of all I think we are now in a position to make an advertisement. I can't say the exact date when the advertisement will be made because I would need to consult with Mr Vuyani Grene who is in our media department but I would like to also request that maybe my learned colleague Mr Mohlaba in the meantime he provides us with a supplementary affidavit stating the exact place and everything for our records. More especially given the fact that we had written a letter on the 19th January requesting further particulars so as to avoid such a situation from occurring so I can't say for sure when it would be published but as soon as it is published we'll set down the matter and will notify the people concerned.
CHAIRPERSON: Ms Thabete, which letter are you referring to that you would like Mr Mohlaba to respond to now?
MS THABETE: The matter of Mr Garane.
CHAIRPERSON: Yes, which letter are you referring to?
MS THABETE: I'm referring to the letter written to him on the 19th January 1999.
CHAIRPERSON: Mr Garane, I have a copy of a letter alleged to have been written to you on the 19th January 1999 and it is alleged to have been sent to you by fax on that day - Mr Mohlaba, sorry - in terms of which you were requested to provide certain information before this hearing could be capable of proceeding. Are you aware of received such a letter?
MR MOHLABA: Certainly, I have a copy of the letter Madame Chair, it was indeed faxed to our office of the 19th January but I was in Tzaneen. However I think I should have arrived a day or two after it was faxed through, but the difficulty was to get hold of Mr Garane because our line of communication was through a lady called Patience in Shell House and I got in contact with her, I could only send her a message to get Mr Garane to contact me and that did not happen until the eve of the hearing Madame Chair, that's the reason there was no response to that letter.
CHAIRPERSON: Are you able to advance any good reason why you did not communicate your difficulties in trying to locate your client to the Amnesty Committee?
MR MOHLABA: I did not do it in writing, I however communicated telephonically expressing my difficulty with I believe it's Pumsa Tofile, I'm not certain whether I got him or I got somebody else but I had various communication with him or his office or somebody else in his office with regard to various matters and I indicated my difficulty and I did not do it in writing and had I been invited to do so I should have certainly done so, Madame Chair.
CHAIRPERSON: But having regard to the fact that the letter specifically drew your attention to the fact that unless the requested information was not furnished to the evidence leader's office who was identified in that letter as Ms Thabete, your client's application will not be capable of being proceeded with. Why did you not try and communicate directly with Ms Thabete knowing that according to the letter from her office, the matter would not be disposed of unless certain information, the information was received before 8th February which was yesterday?
MR MOHLABA: Certainly Chair, it could have been an oversight on my part, I admit. I received so many letters on the same letterhead and one just - I may have omitted to look at the author and decided instead to phone the person who I normally receive certain correspondence from as opposed to insisting on talking to Ms Thabete.
CHAIRPERSON: I find that a very difficult reason to comprehend. This is a letter that is talking about a hearing that was to take place in a few weeks time. It was not just a general correspondence, it sought to elicit information that would enable this hearing to proceed without any hitches and this Committee cannot afford to be saddled with unnecessary hitches which could have been avoided if counsel had attended to the queries raised by our office timeously.
Ms Thabete, are you saying that this matter is not capable of being proceeded with because the information that you sought to obtain from Mr Mohlaba was not given to you timeously?
MS THABETE: That is correct Madame Chair and I would suggest that the matter be postponed until we are in a position to issue a public notice seeking for the victim's next of kin.
CHAIRPERSON: Mr Mohlaba, you have heard what Ms Thabete's view is with regard to the conduct of this application. She feels that this matter cannot proceed because it is not ripe for a hearing because of your omission in failing to provide important particulars that were necessary to enable this matter to be properly conducted and prepared for this public hearing. What is your response thereto?
MR MOHLABA: I accept the blame Madame Chair.
CHAIRPERSON: Are you therefore amenable to the matter not proceeding today until such time as your office has furnished her with the requested particulars as contained in the letter of the 19th January 1999?
MR MOHLABA: Certainly Chair and it has also come to my attention that I've conversed it with Ms Thabete during the adjournment that we need to also find a supplementary affidavit with respect to the application.
CHAIRPERSON: Yes, we would greatly appreciate it if in matters such as these where the applications contain very scanty information that before we proceed with hearing any of those applications the legal representatives make every attempt to try and furnish us with a supplementary affidavit which will try and curtail the proceedings because this Committee has a very short lifespan and we really rely on the assistance of the legal representative in ensuring that the proceedings are as curtailed as possible. We trust that you will come to our assistance in this regard in future.
MR MOHLABA: Certainly Chair, that is noted.
CHAIRPERSON: This matter is then postponed to a date to be arranged.
MS THABETE: Thank you Madame Chair, I don't know whether I can proceed to the next matter?
CHAIRPERSON: You may proceed Ms Thabete.
MS THABETE: We are in a position to hear the matter of Puseletso Julius Skhosana, but I understand she's not present today. I'm not aware of the reasons except that I think according to Mr Mohlaba she had transport problems coming here so I'm not quite sure how we should deal with the matter from now onwards but regarding the matters of Maswim Mkukwana Mzuli ...[intervention]
CHAIRPERSON: Mkukwama. Is it n or m?
MS THABETE: M for mother. And the matter of Mosolesi Bigman Nhlakasa and that of Matembe Nglongo. I'm going to also suggest that we postpone those matters because in the matter of Mkukwana we could not - we did not access to getting the court record. As a result we did not know who the victims are unfortunately the applicant doesn't know who the victims are as well. After receiving the information that we can't get hold of the court record we arranged that a notice be made, a public notice be made in the newspaper and on the radio, Radio Zulu and Leseti but it was not made timeously. As a result we want to afford an opportunity for the victims to respond failing which we will set down the matter again to be heard in the near future.
Regarding the matter of Mosolesi Bigman Nhlakasa we also had problems or our investigators also had problems tracing Joseph Mtunsi's next of kin, Joesph Mtunsi was killed in this incident. As a result of the fact that they could not trace the next of kin of the victim we did a public advertisement on the paper and on the radio which appeared late, that's why Mashaia who gave the order is deceased.
CHAIRPERSON: What are you saying Ms Thabete, in short?
MS THABETE: In short as I've stated before I'm suggesting that these matters be postponed so that we can afford an opportunity for the victims to respond to the late advertisement on the paper.
CHAIRPERSON: Is it your submission that no proper investigations have been conducted in respect of these matters which were initially set down in October 1998 and were postponed then because they had not been investigated in October and they still stand uninvestigated properly in February 1999?
MS THABETE: Madame Chair that's not what I'm saying, the matters have been investigated but the victims cannot be traced and last year we did make an advertisement on the newspapers but it referred to last year's hearing. We did make an advertisement calling on the victims to contact us, that was last year, so this was the second notice that we had done on the paper calling on the same victims to notify us. So I believe that the investigators have investigated the matter but we are unable to trace the victims.
CHAIRPERSON: Is it your submission that your public notice was issued late?
MS THABETE: Yes Madame Chair, it's my submission that the second notice was issued late.
CHAIRPERSON: There is no second notice, it is a notice in respect of this particular hearing?
MS THABETE: Yes Madame Chair, it's my submission that it appeared late on the newspaper.
CHAIRPERSON: And when did it appear and in which newspaper?
MS THABETE: If Madame Chair can bear with me, I want to check that one out? Madame Chair, I only have in front of me the letter from the media liaison officer stating that it was announced on the programmes, magazine programme between 10.30 and 11.00 afternoon drive show between 15.30 and 16.00, current affairs between half past 5 and 7 and community affairs between 8 and 10. In the newspapers I think it appeared on the Sowetan, I would need to verify that information with Mr Vuyani Grene.
ADV BOSMAN: Do you have a date in regard to the radio announcements, you haven't mentioned a date to us?
MS THABETE: No there's no date, this letter was written on the 2nd February so I assume it was before the 2nd February.
CHAIRPERSON: I think please immediately try and - I see Mr Vuyani is approaching you, try to obtain that information quickly so that we can have proper information before us.
MS THABETE: Madame Chair it was published in the Sowetan, February 5th and the announcements on the radio were made on the 2nd February 1999.
CHAIRPERSON: It is therefore your submission that the public notice which appeared in the Sowetan newspaper on teh 5th February 1999 and the radio announcements that were broadcasted at various stations on the 2nd February 1999 were extremely late notification, they do not amount to a proper service of notices to victims.
CHAIRPERSON: Is there any reason why such late notification was made by your office?
MS THABETE: Yes Madame Chair, the reason was that we were hoping that our investigators would be able to chase the victims but after we were informed that they cannot be traced and they have difficulties with tracing them, that's when we decided to make an advertisement on the newspaper.
CHAIRPERSON: So I think if I say that what I had put to you earlier on that this is because of a lack of the proper conduct of investigations by the investigative unit which really is hampering the smooth working of this Committee I was correct?
MS THABETE: With due respect Madame Chair not in this case because I happened to speak to Miss Sebesile who explained to me the difficulties that she had with really chasing the victims and sometimes she even had difficulties with getting the police records and the court records.
CHAIRPERSON: But you were informed late, had you been informed timeously, you'd have taken alternative measures that would ensured that this hearing proceeds but because you were notified late by the investigators you were unable therefore to issue your notices timeously and were only able to do so sometime at the beginning of February which was too late for this hearing?
MS THABETE: That is so Madame Chair.
CHAIRPERSON: We've expressed our unhappiness previously about how matters are set down, we do not want to belabour the point, we must stress again that we hope that all matters which are set down are matters which have been properly prepared for a hearing so that we can take this process to it's conclusion without having to delay it any further. Let us say it no more. The matters of Mkukwana, Umhlagasa and Mlhongo are hereby removed from the roll for this week and the matter of Mr Garane as already stated is postponed to a date to be arranged and Mr Mohlaba, where is Ms Skosana? Can we expect to proceed with the application today?
MR MOHLABA: Madame Chair, Ms Skasana I expected ...[inaudible] me yesterday, that is for her presence yesterday that on Monday she normally has transport problem at Dawn Park and she asked me to start with other applicants and bring her next. I'm not advised as to her failure to appear today.
CHAIRPERSON: Did she intimate to you when next you should bring her in terms of time?
MR MOHLABA: Certainly we had agreed at 11 o'clock, she mentioned that by 11 o'clock she'll manage to be here but that arrangement was for yesterday because she indicated that it was specifically Monday where she has this transport problem.
CHAIRPERSON: Are you not in a position to make contact with her either telephonically or with the modern sophistication of cell phones?
MR MOHLABA: If I can be afforded I will request a short adjourment, I think I have contact with her, I can try and establish contact.
CHAIRPERSON: Yes we'll appreciate that. We'll adjourn this matter for 5 minutes whereafter you will then just give us an indication that we are in a position to proceed or not today.