amntrans AMNESTY HEARINGS 1998-08-25 UMTATA 2 https://sabctrc.saha.org.za/hearing.php?id=52830&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1998/98082425_umt_umtata2.htm CHAIRPERSON: Good morning ladies and gentlemen. Yesterday when the electricity went off, I think the legal representative who is representing Mr Matanzima was still making submissions. Had you placed yourself on record Sir? MR HOBBS ADDRESSES Thank you Mr Chair. I was interrupted yesterday afternoon by a power failure. I reiterate my name is Jonathan Hobbs from the local Barr and I am instructed here to represent Chief Keizer Matanzima in these proceedings. It appears his presence is required here by way of subpoena issued by the Commission. I seek to resist the appearance of this witness before the Commission and shall I say two heads. I say two heads, there may be three, the validity of the subpoena itself, might be in question. CHAIRPERSON Is it in question or might be in question that you have to make your submission, so that we understand what point is being taken? MR HOBBS It is not a point that I intend to pursue right now. I may proceed to the first head of my resistance to the appearance of the Chief. It relates to the relevancy of any testimony which he might give to the proceedings. He is being subpoenaed we are advised, on the insistence of the victim's family. And that insistence is based on a press report of a public speech which would have been made by the witness, reported on the 13th of October 1995 in the Sunday Star. I believe that a copy of the press release has been handed up to the sub-Committee and I am unfortunately not aware of its number or description. On perusal thereof, there is nothing contained in the reported statement which in my submission, can be relevant to these proceedings. The evidence led certainly does not support a contention that this was a premeditated murder, or that it enjoyed prior sanction by Chief Keizer Matanzima. At most, the reported statement can be construed as his post facto condonation of the death. On the basis ... CHAIRPERSON Let me ask you this, if his statement can be construed as being a post facto condonation of the death of the deceased, can it be said that there cannot be any question of the involvement of the Chief in what appears to be a subsequent cover up as to the circumstances surrounding his death? MR HOBBS Well, Mr Chairman, we now are moving within the realms of speculation. CHAIRPERSON I am putting a question to you, what is your submission to that? MR HOBBS That is my response Mr Chairman, it is with respect, that we are speculating now. There is certainly nothing contained within the statement which would suggest any involvement therein. CHAIRPERSON I am referring to the evidence that has been led before this Committee. MR HOBBS The evidence led before this Committee is that the cover up if any, was at the instance of the then South African authorities, due to an embarrassing situation which was looming consequent to questions asked in Parliament and the embarrassment contained in any prejudicial answer to that. CHAIRPERSON It was also the evidence by the first applicant which was to the effect that he was told that attempts have to be made to cover up the death of the deceased by the Transkeian Security Forces. MR HOBBS Well Mr Chairman, my submission is to the effect that if the Chief is to be questioned on his statement, expressing his satisfaction if one can call it that, at the death of Ndondo, it doesn't assist the victim's family, it certainly isn't prejudicial to any of the applicants. Its relevancy is marginal. CHAIRPERSON Yes, what is your other submission? MR HOBBS The second head of my resistance in event of the first point failing, relates to the current circumstances pertaining to the health of the perspective witness. The witness is an aged man and I have drawn the leader of evidence and my learned friend, Mr Dukada's attention to certain psychiatric reports obtained recently. CHAIRPERSON Do you have that available for the Committee to peruse? MR HOBBS I do. CHAIRPERSON Please let us have that. MR HOBBS With your leave Mr Chairman, I hand up three documents. May you firstly have sight, I have copies for your co-Committee members. They are - the first one relates to a certificate by one Dr Dudley Duncan, a Specialist Physician, practising in East London. The second one a psychiatric report compiled by Prof D.L. Mkhize, practising forensic psychiatrist in Umtata and the third, a certificate by Dr H.L. Uys, practising psychiatrist, also a forensic psychiatrist, practising in East London. What is of particular note and which I wish to draw your particular attention to, is that the report by Dr Duncan is dated the 5th of May, at a stage when the perspective witness' appearance at these proceedings was not contemplated. I may place on record, that I attended on you Mr Chairman, prior to the sitting of this Commission yesterday, and that I was directed to raise this issue with the Officer leading evidence for this Commission, and the legal representative of the victim's families. Loathe as I was, I did so. I supplied them with the documents you have in your possession, and it has been indicated to me that what is contained in these certificates, is not good enough and that the Officer directing the, or leading the evidence before this Commission, will persevere with his effort to have Chief Keizer Matanzima testify. I have indicated to him that I will resist this strenuously, these are my instructions. CHAIRPERSON You have made the point, we understand that. MR HOBBS I am also mindful and request in the circumstances that this sub-Committee shall prescribe a procedure on how to deal with this issue. CHAIRPERSON All we would need, we would want you to satisfy us that in the circumstances, you client is incapable of giving the evidence. What this Doctor suggests is that the evidence that he is going to give, will not be reliable. I think it is for this Committee to decide that, whether the evidence is reliable or not. MR HOBBS It is indeed, it is indeed for this Committee to decide it upon evidence tended, and ... CHAIRPERSON Bearing in mind, you know, this medical certificate. MR HOBBS If I may proceed, the very content of these certificates are opinion evidence, and in my submission, any tribunal making a decision on the competence of Chief Matanzima as a witness, will rely on the expert opinion of these medical experts. In my submission, prior to this Commission deciding to hear the evidence, if at all, it must firstly decide if he is a competent witness. In my submission, the Commission should then first hear the evidence on that point, the expert medical evidence, because unless ... CHAIRPERSON Are those Doctors available now to be heard? MR HOBBS Dr Mkhize is available, he has indicated that he is willing to appear on subpoena by this Commission. CHAIRPERSON You are bringing Dr Mkhize as a witness to support your submission that your client is not competent to come and give evidence. He has put up what you have, you know, a report. What is the difficulty in bringing him here? MR HOBBS Mr Chairman, I can only assume that even as in any civil proceeding, if a party to such proceedings require the attendance of a witness, he may attempt through the Office of the Registrar of the Court, and have the witness subpoenaed. CHAIRPERSON Let me just tell you Mr Hobbs, that - have you finished your submissions? MR HOBBS Indeed, I have. CHAIRPERSON Mr Dukada? MR DUKADA Thank you Mr Chairman. Mr Chairman, I don't want to deal with all the points which have been raised by Mr Jonathan Hobbs and the firstly the issue of relevance of the evidence. It is very clear ... CHAIRPERSON Deal with the second issue of the competence or otherwise of Mr Matanzima to give evidence. MR DUKADA Thank you Mr Chairman. Mr Chairman, the latest report by the Psychiatrists set out very clearly, the last page, paragraph 1 of the conclusion that the evidence he gives, will be unreliable and misleading, and it doesn't get into the state of mind of the witness. He is not mentally unfit to testify. It is only the quality of the evidence which he is likely to give, and that is entirely in the hands of the Committee to decide as to whether that evidence is unreliable or not. It will be like any other witness who is declared to be unreliable, and the question of his mental status is irrelevant. We oppose and we find that the submissions that are made with due respect, have no substance. CHAIRPERSON Mr Mapoma? MR MAPOMA Mr Chairman, for the record, we are of the view that the witness must come and testify. That is our submission that if the witness for one reason or another is said to be unfit to testify, it is incumbent upon the witness to show the Committee that he is not fit and this Chairperson, has been put by me to Mr Hobbs yesterday, that in the event of him wanting to show the Committee that the witness is not fit and proper, then he must see to it that he brings evidence today. Therefore Chairperson, we insist that the witness must testify, thank you Chairperson. CHAIRPERSON Mr Hugo, do you have any submissions to make in this regard? MR HUGO No thank you Mr Chairman, it has no bearing on the applicant's application. CHAIRPERSON Mr Knight? MR KNIGHT Mr Chairman, similarly it has no bearing on my applicant's application. CHAIRPERSON Mr Dilizo? MR DILIZO Mr Chairman, I endorse what has been said by my colleagues. It doesn't have any bearing upon the application of my applicant, my client. Thank you Mr Chairman. MR HOBBS Mr Chairman, may I add just one point to my ... CHAIRPERSON Is this now in reply or what? MR HOBBS I am asking your leave if I may add one point. Mr Chairman, Section 34 of Act 34 of 1995, provides that any person, referring to subsection 1, any person questioned by an Investigation Unit and any person who has been subpoenaed or called upon to appear before the Commission, is entitled to appoint a legal representative. Now, that right in my submission is nugatory and of no force if such legal representative is not in a position to consult meaningfully with the person he is to represent in the proceedings, which I submit is the case in point. Thank you. CHAIRPERSON What do you say to the submission by Mr Dukada that what these reports do, is merely to go to the reliability or otherwise of his evidence, they do not go to the question of whether or not giving evidence by him, would be detrimental to his health? MR HOBBS My response to that is that Mr Dukada is being selective in looking and raising issues from these certificates. I would draw your attention to the second paragraph of Dr Uys' report and I read "I did a mini mental status examination on Mr Matanzima. He scored 15 out of 30, a score below 24 out of 30 is indicative of dementia. Mr Matanzima did poorly with the orientation part, memory part, calculation part and drawing part. I therefore believe he suffers from a dementia of Alzheimer's type. It therefore renders him incapable of giving any coherent account of himself or any events." Mr Chairman, more clearly than that, you cannot have it in my submission. CHAIRPERSON You cannot have what? MR HOBBS I beg your pardon? CHAIRPERSON Mr Dukada is relying on the report by Prof Mkhize, the conclusion where he expresses the opinion that the evidence will be unreliable. That is what is relied on. MR HOBBS Yes, Mr Chairman, I am aware of that, but once again, I must refer you to an earlier part of the same person's report, which is to the effect, a finding of fact, not an opinion, a finding of fact that there is gross impairment of immediate short and long term memory. The attention is poor, concentration poor, judgement poor, there is a total lack of insight. CHAIRPERSON We have considered the submissions made on behalf of Mr Matanzima and in particular we have considered the medical reports that have been filed on his behalf. In our view, the import of these medical report is that his evidence is likely to be unreliable. In our view, the reliability of the evidence of Mr Matanzima will have to be assessed in the light of all the relevant factors. We will certainly bear in mind what the Doctors have had to say. We mention that there is no suggestion in these reports that if he were to testify, that will be detrimental to his health. Our ruling therefore is that Mr Matanzima must come and give evidence. We want to make it clear though that the questions which are to be put to him, will have to be restricted to the statement that he made, which he is alleged to have made of and concerning the death of Batandwa Ndondo. Thank you. Yesterday Committee indicated that it would like to hear Colonel Willy. Is Colonel Willy here? Would you please call him please. MR DUKADA Mr Chairman, may I get clarity on this situation. Although he is a witness, he is not called and will not be allowed to (indistinct) CHAIRPERSON No, the Committee will put questions to him and he will be, and each and everyone of these representatives will be allowed to put such questions as they may desire to put. MR HOBBS Mr Chairman, may I with respect, intervene at this stage and seek your indulgence to excuse my presence for a short while. I need to take instructions on the status quo and to consider my client? CHAIRPERSON Yes, very well. Mr Willy, what language are you going to speak? MR WILLY Xhosa. EDMUND THEMBA WILLY (sworn states) CHAIRPERSON Yes, very well. Mr Willy, there is a statement which is before this Committee, which is dated the 3rd of October 1985, which on its face indicates that it was taken by you. Do you have that statement in front of you, it relates to one Mbuso Enock Tshabalala? MR WILLY I do have it. CHAIRPERSON Do you confirm that the signature which appears at the beginning of that statement, is that your signature? MR WILLY Yes, this is my signature. CHAIRPERSON Yes. What this Committee wishes to do is to put to you questions relating to the circumstances under which this statement was taken, do you understand that? MR WILLY Yes Sir. CHAIRPERSON Do you know Mbuso Enock Tshabalala? MR WILLY No Sir. CHAIRPERSON Have you ever met him before? MR WILLY No, I met him for the first time at the court of law. CHAIRPERSON Where was that? MR WILLY It was at the Supreme Court at Umtata. CHAIRPERSON Could you just tell us the circumstances under which you met him very briefly? MR WILLY The way we met, it was when he was supposed to be charged. I had already been given the statements, not having been collected or compiled by me. CHAIRPERSON Was that in connection with the death of the deceased? MR WILLY Yes Sir. CHAIRPERSON Yes. Were you the Investigating Officer in that case? MR WILLY I was assisting the one who was investigating the case. It was Major Gileli. CHAIRPERSON Yes. Do you know anything about this statement? MR WILLY This statement Sir, was given to me by Major Booi who was working for the Security. CHAIRPERSON Who gave you this statement? What is the name of the Officer? MR WILLY It was given to me, it and others, by Major Booi. CHAIRPERSON Were you told what to do with those statements? MR WILLY During the investigation, I had requested the statements from the Security People, telling them that I wanted those statements. I told them they must either see that they get to give me the statements or get to go and find that person, in the same fashion they used to do. CHAIRPERSON The document which bears your signature, which reflects that you took the statement from ... MR WILLY I was preparing this for the Attorney General who wanted these statements very urgently, wanting to establish who had compiled those statements. CHAIRPERSON Do I understand you to say that you signed this document in contemplation that Mbuso Enock Tshabalala was going to give you a statement and then sign the statement? MR WILLY Yes. CHAIRPERSON Did he give you the statement? MR WILLY No him personally. This statement was brought to me with Major Booi, with other statements. CHAIRPERSON Do you know who took the statement from Mr Tshabalala? MR WILLY No Sir. CHAIRPERSON Thank you. MR SIBANYONI Colonel, just one question from me. Was it normal to put your signature here whereas the person who allegedly purported to have made the statement, have not signed it, was it something which is usual or something which is normal? MR WILLY It was not something that was normal or usual. MR SIBANYONI What was the reason in this case to put your signature here when the statement is not attested to? MR WILLY The Attorney General wanted this statement very urgently because of the situation at that time. When he was checking the statements, he saw that the person who compiled the statement was not written. Because we knew that this person was going to appear in court, the person who took the statement, he will stand in front of the Magistrate or the Judge and he will say that the statement was his or the statement was not his. MR SIBANYONI Thank you no further questions, no further questions. CHAIRPERSON Thank you. Mr Hugo, do you have any questions to put to Mr Willy? CROSS-EXAMINATION BY MR HUGO Yes, thank you Mr Chairman. Colonel Willy, who was the Head of this Investigation Team that was tasked to bring the culprits to book and to take them to court? MR WILLY It was Major Gileli. MR HUGO Now, Colonel Willy I don't want to unnecessarily burden this Committee with further documents, but I put it to you that in the docket that was supplied to us, containing various statements, Mr Gileli who was ostensibly now in charge of this Investigation Team, said that he was at one stage taken off the, or removed from this investigation and it was given to somebody else to proceed with. Are you aware of that? MR WILLY Nobody else had a right to take him off, except myself, because at the Head Office I was working as a Liaison Officer between the court of law and the Office of the Commissioner. MR HUGO Were you Colonel Willy, satisfied that you had enough evidence at your disposal and enough statements to succeed in prosecuting at least Mr Tshabalala and Mr Dandala? MR WILLY Yes. I was satisfied because the docket was from the Attorney General. MR HUGO Yes, and you had access to statements that were made by eyewitnesses, is that correct? MR WILLY Yes. MR HUGO Now Colonel Willy, will you then just explain to this Committee why did you not proceed with the prosecution of at least Mr Dandala and or Mr Tshabalala? MR WILLY The order for Gen Gileli to tell me or to ask me to help him in this case, it was a problem to get statements from people who were working at the Security Branch. MR HUGO Yes, Colonel Willy, with all due respect, I don't understand that. You have just said that you had access to statements given to you by eyewitnesses and you were satisfied that you could be in a position to prosecute. You didn't need statements from the Security Police? Why didn't you proceed with the prosecution? MR WILLY Tshabalala didn't go to court. MR HUGO That we understand Colonel, and we know what the reasons are for his absence at court. Why didn't you proceed against Mr Dandala with the prosecution? MR WILLY Dandala was able to say that no, it is this person who shot and he could say that he was not at the scene of the shooting. CHAIRPERSON Mr Willy, I think what Counsel is asking you is the following: You were satisfied in light of the statement that you had, that you could successfully prosecute both Tshabalala and Dandala, is that right? MR WILLY Yes, that is correct. In all cases, before people can be prosecuted, it is the Attorney General that was supposed to take that decision as to whether one must be prosecuted or not. CHAIRPERSON We understand that, did the Attorney General in this case, take a decision to charge Tshabalala and Dandala? MR WILLY Yes, he did. CHAIRPERSON I think what Counsel wants to find out from you is, why was the prosecution of these two Officers, not proceeded with? We understand that Tshabalala did not attend court at some stage, but why was Dandala not prosecuted? Do you understand the question? MR WILLY Yes, I understand it Sir. It was because the Attorneys or legal representatives of the deceased, were in such a hurry that the Attorney General also wanted to expedite the case, to finish the case in the courts. CHAIRPERSON But we know that Mr Dandala was not prosecuted. Is that right? MR WILLY If he was not prosecuted, he did go to the inquest court. CHAIRPERSON Yes, Mr Hugo? MR HUGO Just some final aspects, in this docket that was furnished to us, there were also two statements - the one from Shosha and the other one from as he has become known to us now, from Braam Morse. Were you aware of these statements? MR WILLY Yes, I got those statements. MR HUGO Can you just explain to this Committee, why were they never prosecuted? MR WILLY They could not be found to attend court proceedings. MR HUGO Have you made any attempts to try and find them and ascertain where they were? MR WILLY Because these people are working for the Security Branch, and we were certain that they were working there and they knew that they were working, we then depended solely on the Security Branch people. MR HUGO Colonel, just a final aspect, did you know more or less all the people that were working at the Security Branch in Umtata at the time? MR WILLY No Sir. MR HUGO I've got no further question, thank you. NO FURTHER QUESTIONS BY MR HUGO . CHAIRPERSON Yes, thank you. Mr Knight, do you have any questions to put? MR KNIGHT Mr Chairman, I have no questions. NO CROSS-EXAMINATION BY MR KNIGHT . CHAIRPERSON Mr Dilizo, do you have any questions? MR DILIZO Do you have any questions? CROSS-EXAMINATION BY MR DILIZO Thank you Mr Chairman. Colonel Willy, it would appear that you experienced some difficulties in getting co-operation from the Security Police concerning this matter, is that so? MR WILLY Correct Sir. MR DILIZO Were you experiencing this difficulties from the Transkei Security Police or not? MR WILLY We had no problems with the police of Transkei, even in relation to this case, we thought these people were working for the Security Branch of the Transkei. MR DILIZO What I want to get you to be clear about is this difficulty, did you encounter it from the Transkei Security Police only or even the former South African Security Police? MR WILLY I never had direct contact with the Security Branch of South Africa. MR DILIZO Did you ever try to establish what was their difficulty in securing the attendance of Tshabalala and Dandala to appear in court? MR WILLY We tried our best, but never got to establish why they could not attend. We did not know that these people were not from Transkei. MR DILIZO Was the docket that was submitted to the Attorney General for his decision, in respect of Tshabalala and Dandala only, or was it also including Shosha and Morse? MR WILLY I think there was a case relating to a lady, but I could not, I am not certain as to what her name was. MR DILIZO Can you remember whether the Attorney General had made a specific decision with regard to that particular woman who could be Shosha most probably? MR WILLY I am not certain because I never saw that person. MR DILIZO Do you know whether the Attorney General had specifically declined to prosecute Morse or not? MR WILLY I do not know. MR DILIZO What did you make out of this lack of co-operation from the Transkei Security Police? Did you have any opinions about that, or impressions? MR WILLY It was quite common for us to get a lot of problems when we had to deal with the Security Police of the Transkei. I never thought as to what the reason might have been. I could not establish what the reason could be. MR DILIZO With regard to Dandala, you said one of the reasons why he was not prosecuted alone, is because he could say he was not at the scene of the crime, or he could say he did not shoot? But he had made statements wherein he had admitted the shooting, is it not so? MR WILLY Yes, that is correct. Dandala helped us or he was accessible always we wanted to have contact with him. We never had problems with him. MR DILIZO Thank you Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MR DILIZO . CHAIRPERSON Thank you. Mr Dukada? CROSS-EXAMINATION BY MR DUKADA Thank you Mr Chairman. Colonel, when you took over, when you joined to assist Major Gileli, to which branch of the Police Force were you attached? MR WILLY I was the Head of the CID at the Head Office. MR DUKADA In other words, you were being involved in the investigation of a number of cases in your experience, is that correct? MR WILLY Yes, I had a lot of experience. MR DUKADA And you also knew what the Judges' Rules were all about when you were taking a statement from a suspect? MR WILLY Yes, I knew. MR DUKADA Let's go back to the statement which the Chairperson showed you at the beginning of your evidence, it says warning statement in terms of supposed to be Judges' Rule. Do you see that? The statement which was showed, in fact it is a warning statement which was signed by Colonel Willy, page 61 of the bundle. Do you have page 61 of the bundle, Colonel? Do you see the statement Colonel? MR WILLY Yes Sir. MR DUKADA Who actually typed, that is completed, that (indistinct) form, as I see it? MR WILLY I do not know who typed, but the bottom part at the end, it is I who signed that it is I who took the statement. MR DUKADA In other words Colonel, somebody else completed that (indistinct) form, all that he had to do was to simply obtain your signature? MR WILLY Yes, correct Sir. MR DUKADA Did you make any enquiries as to the veracity of the contents of the warning statement? MR WILLY I could not establish the facts because I did not see this person. But what I was certain about was that this statement is a warning statement, that was prepared in preparation that was going to be taken later. The person's actual statement is the following page in the bundle. MR DUKADA In other words, Colonel, is it false that you warned Tshabalala about the Judges' Rules? MR WILLY Sir, I do not know whether the person who took the statement, warned Tshabalala or not because it is not I who did that. MR DUKADA No please Colonel, listen to my question clearly. It is false that you personally warned Tshabalala about the Judges' Rules, as it is indicated in this warning statement? MR WILLY Correct Sir. MR DUKADA And you appended your signature well knowing that you had not warned Tshabalala about the Judges' Rules at all? MR WILLY That is correct Sir, because the reason why I could appended my signature, it was in order to ensure that this statement was ultimately taken. As to who it was, I do not know. ADV SIGODI Mr Dukada, isn't it that - is it not just that the statement, the warning statement itself, Mr Tshabalala has not signed the first page, to show that he was actually warned, to complete the whole picture? If at all he had signed this page, then maybe we would pursue that aspect? MR DUKADA Thank you Mr Chairman, Ms Commissioner. Actually what we want to pursue is to just show the Committee that there was a deliberate cover up in this matter. I don't intend to dwell extensively on this aspect. Thank you. The point I am saying to you Colonel, is that the statement was submitted in this form to the Attorney General for a possible prosecution of Tshabalala, is that correct? MR WILLY Yes Sir. Any person who has made a statement having been accused. MR DUKADA That also includes the subsequent statements appearing in the bundle, of Shosha, Morse etc? MR WILLY Correct Sir. MR DUKADA Why did you not indicate at the foot of each statement, warning statement, that you never actually warned any of these suspects? MR WILLY In this statement, there is a place that says received by me on that date. MR DUKADA Yes, that is not my question to you. My question is why at the foot of the warning statement, you did not expressly indicate that you never actually warned any of these suspects? CHAIRPERSON But surely Mr Dukada, can this point be taken any further because the witness has said that he did not warn Mr Tshabalala? MR DUKADA Thank you Mr Chairman, I take that point. Colonel, you are aware the inquest proceedings were subsequently held by the Magistrate at Qala, concerning this incident. Is that correct? MR WILLY Yes Sir. MR DUKADA And some of the documents which you handed in to the Magistrate were the warning statements which you took, is that correct? MR WILLY It could be so Sir. MR DUKADA Mr Chairperson and Honourable Members, we have amongst documents received from the Evidence Leader, Mr Mapoma, findings by the Magistrate, it is not a complete record of the inquest proceedings, but if will definitely give the Committee some light about what happened. CHAIRPERSON Perhaps we should begin by marking these medical reports, the one relating to Dr Duncan, would be marked I, I think it is. Was that the next Exhibit number? The one relating to Dr, well prepared by Dr Uys, will be marked Exhibit J. The report prepared by Dr Mkhize, will be Exhibit K. The inquest finding will be Exhibit L. Yes, Mr Dukada? MR DUKADA If you look at the second page of the inquest findings Colonel, item number from 20 to 23, those are warning statements of suspects, can you see that? MR WILLY Number 20? MR DUKADA Colonel can I just assist you. 20 is a warning statement of Xoliswa and Shosha, 21, warning statement of Mbuso Enock Tshabalala, 22 warning statement of Qanikaya Dandala, and the last one is Morse. I just want to get clarity from you, just at the top o that document, it says the following affidavits produced by the Public Prosecutor were admitted in terms of Section 13(1) of the Act. Are you aware that affidavits of these suspects were handed to the Magistrate? MR WILLY I can only estimate, I don't know whether he was given them. MR DUKADA When Colonel Booi gave you, sorry Major Booi gave you unsigned statements, did you query the procedure? MR WILLY As we were used to working together with them, the statements - they would give us the statements and we would then hand over the statements to wherever they were needed. MR DUKADA Yes Colonel, what I am trying to find out from you were assisting investigations and possible prosecution of a suspect in the matter, the question is why did you not query Major Booi when he gave you unsigned statements of people who were not known to you? MR WILLY What I thought was that these were the statements of the people that, these were the statements that I asked so that I can give them to the Attorney General, because the Attorney General was looking for these statements urgently. MR DUKADA Yes, exactly, exactly. You needed the Attorney General signed statements, and nothing else. The Attorney General would have nothing to do with unsigned statements. Why did you not enquire from Major Booi for him to give you unsigned statements? MR WILLY I made a mistake there Sir. MR DUKADA Are you saying Colonel, it was a mistake in respect of all the four suspects? MR WILLY I made a mistake about all the statements that Major Booi gave me. MR DUKADA Are you also saying Colonel that you made a mistake for not having personally warned all those four suspects? MR WILLY I got these statements from him, I then took a decision that these were the people that I was looking for. I told them to give us their statements. MR DUKADA You didn't find it imperative, as part of your duty as the Head of CID, to question Colonel Booi about this unusual procedure? MR WILLY I didn't see it as something that was that bad, because he told me that those were their statements, the statements that I asked from him. MR DUKADA Did you agree, just lastly Colonel, do you agree with me that if these statements had been taken to the Attorney General, unsigned as they are, there would have been no prosecution, definitely? MR WILLY I thought it that way that they might not be prosecuted because the statements were not signed. MR DUKADA And whenever being questioned by Mr Dilizo, you mentioned that you experienced difficulties with the Transkei Police when investigating the matter, is that correct? MR WILLY That is correct. MR DUKADA Did you approach the Commissioner to complain about the difficulties? MR WILLY I went to Gen Kawe who was the Head of that Section. I went to him, asking for these statements. I asked him to see to it that we get these statements. MR DUKADA The question Colonel, I am asking, did you approach the Commissioner to complain that you were receiving no co-operation from the police regarding this matter? MR WILLY At that time, he was a Commissioner, he was an acting Commissioner, he was in the office of the Commissioner, when I was talking to him. MR DUKADA Did you specifically approach him and complained - did you approach him and specifically complain that you were not receiving co-operation from the police? MR WILLY I did go to him. I told him that I was not getting any co-operation. I asked him to make sure that I do get these statements. MR DUKADA Thank you Mr Chairperson, I have no further questions? NO FURTHER QUESTIONS BY MR DUKADA CHAIRPERSON Thank you. Mr Mapoma? CROSS-EXAMINATION BY MR MAPOMA Colonel, among the statements that you had, which you handed to the Attorney General, did you have the statement of Gen Kawe? MR WILLY No. MR MAPOMA Did you ever catch sight of a statement by Gen Kawe in the course of the investigation? MR WILLY No, I didn't notice whether the statement was there or not. MR MAPOMA In the course of your investigation, did you ever request him to make a statement regarding the incident? MR WILLY No, because nothing was said about him. MR MAPOMA For inquest purposes, were you also responsible to take statements or taking part in the investigation of this matter? MR WILLY No. I took part only in investigating the case. MR MAPOMA Thank you, no further questions. NO FURTHER QUESTIONS BY MR MAPOMA . CHAIRPERSON Thank you. Mr Wessels, have you got any questions? MR WESSELS Mr Chairman, there has been one reference made to my client in this matter, can we take the tea adjournment now, I see it is just on eleven o'clock in order to take instructions in that regard. CHAIRPERSON Okay, very well, we will take the tea adjournment now and we will, we will come back at quarter past eleven. COMMITTEE ADJOURNS EDMUND THEMBA WILLY (still under oath) CHAIRPERSON Mr Wessels, do you have any questions to put? CROSS-EXAMINATION BY MR WESSELS Thank you Mr Chairman, I do. Mr Willy, on the occasion when you approached Gen Kawe, you approached him in his capacity as acting Commissioner of Police, is that correct? MR WILLY Yes. MR WESSELS And you will confirm that to the best of your knowledge, when he, that is when Gen Kawe was acting as Commissioner of Police, his second in charge would have been in charge of his Section, whilst he was then absent? MR WILLY It was supposed to be so. MR WESSELS Do you know who was his second in charge at the time? MR WILLY It was Gen Damoy. MR WESSELS I see. The Attorney General himself took a decision to charge only two persons for the death of Mr Ndondo, is that within your knowledge? MR WILLY According to my knowledge, it all depended upon him. MR WESSELS Is it within your knowledge that the Attorney General decided by himself to charge only Dandala and Tshabalala? MR WILLY We didn't discuss this, but according to my knowledge, he is the one that is supposed to take that decision. MR WESSELS I would like to refer you to a document which is not yet before the Commission, before the Committee, we endeavoured to make photocopies in the course of the adjournment, but unfortunately both the photocopy machine and the fax machine is jammed. I have three copies available at this stage Mr Chairman. I beg - some of my colleagues will have it in their file - but I beg leave to circulate this particular document. It is a document emanating from the Attorney General's office directed at the Sangoni partnership, which is the Instructing Attorney of Mr Dukada, dealing with his decision in this matter. I beg leave to just circulate this. CHAIRPERSON What does it say? MR WESSELS The essence of this document Mr Chairman is that the Attorney General remarks as follows: On the basis of the available evidence, I have decided to charge two of the four occupants of the kombi, from which the deceased emerged shortly before he was shot on the 24th of September 1985, with murder in the Supreme Court. These two persons are (1) Dandala and (2) Tshabalala. I believe that they are both attached to the Security Branch of the Transkeian Police. Then it continues with the preparations which were taken for Dandala to appear and eventually released on warning which was the decision of the Attorney General as he has stated it there. There is also further reference to a complaint by the addressee of certain interference to which the Attorney General has responded in this letter. If the Committee will accept this letter as Exhibit M. CHAIRPERSON The letter from the office of the Attorney General dated the 1st of September 1986, will be handed in as Exhibit M. MR WESSELS Thank you Mr Chairman. Mr Willy, were you aware of the existence of this letter, did this possibly form part of your B-Clip of the police docket? MR WILLY I didn't know about it. MR WESSELS What is of some importance here, the date of this letter, that is Exhibit M, being the 1st of September 1986, on that date the Attorney General conveyed his decision to the Sangoni partnership and it was only thereafter, which is almost nine months thereafter, when the inquest was eventually held as it is reflected in Exhibit L, being the 17th of June 1987. Do you confirm that? MR WILLY I don't know it fully. MR WESSELS Do you know what gave rise to the eventual holding of the inquest after the Attorney General had decided in 1986 to indeed charge the two persons? Was that also then the decision of the Attorney General that the inquest should be held in the interim, whilst Mr Tshabalala was missing or was there some other explanation for that? MR WILLY I didn't know. MR WESSELS But the decision to hold an inquest was not your decision? MR WILLY No. MR WESSELS In the normal course of proceedings, that decision would have emanated from the office of the Attorney General, under these circumstances where he, the Attorney General had initially decided to institute a prosecution. If he cannot proceed, he will then decide that an inquest should be held in the interim. Do you confirm that those were the normal proceedings? MR WILLY Yes. MR WESSELS With your knowledge of the investigation of this particular case, you would confirm and this is also reflected in Exhibit L, the inquest cover sheet, that there were numerous other affidavits from independent witnesses dealing, or who witnessed this particular shooting of whom statements had been taken as part of your investigation? MR WILLY Please repeat your question. MR WESSELS You will confirm with your knowledge of the investigation in this case, that statements had been obtained from a number of other, that is independent eyewitnesses to the shooting, and that those statements formed part of the inquest record as it is also reflected on Exhibit L? MR WILLY I do accept that. MR WESSELS You do not only accept that, you know that. You know that there were a number of other witnesses who were present there in the vicinity where the shooting had taken place, from whom statements had been taken by the police? MR WILLY Yes I do know that there were a lot of witnesses and statements were taken from them. MR WESSELS The point I just want to make is that it was not only the warning statements of the four occupants of the vehicle, of the kombi vehicle that was submitted to the Attorney General, those were just part of a number of statements which were in the docket and submitted to the Attorney General for his decision? MR WILLY That is correct. MR WESSELS Thank you Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MR WESSELS . CHAIRPERSON Very well. Mr Majokweni, do you want to put any questions to Colonel Willy to clarify any matter? CROSS-EXAMINATION BY MR MAJOKWENI Thank you Mr Chairman, yes, I do. Is it correct that you were not in the forefront of the investigation, you only assisted Major Gileli? MR WILLY That is correct. MR MAJOKWENI Is that perhaps why you don't really know many of the things that happened between the Attorney General, the inquest and so on, is it because you are not in the forefront of the investigation? MR WILLY That is correct. MR MAJOKWENI When you received these statements as you alleged, from Colonel Booi, these belonging to Dandala and the other three persons, did you in fact notice whether they were signed or not signed? MR WILLY I didn't notice that. MR MAJOKWENI Thank you My Lord, I have no further questions. NO FURTHER QUESTIONS BY MR MAJOKWENI . CHAIRPERSON Thank you. Thank you Colonel Willy, you may return to your seat. WITNESS EXCUSED . CHAIRPERSON Mr Mapoma? MR MAPOMA Chairperson, there is no further witness now except for Chief Keizer Matanzima. CHAIRPERSON The witness who is Chief Keizer Matanzima, do you want the Court to call him? MR MAPOMA I beg your pardon Sir? CHAIRPERSON Do you wish, Mr Matanzima was subpoenaed, was he not? MR MAPOMA Yes Sir. CHAIRPERSON Do you intend calling him then? MR MAPOMA Can I just get an indulgence Mr Chairperson, I just want to consult with the victim's legal representative. CHAIRPERSON Yes. MR MAPOMA Mr Chairman, I intend calling him. CHAIRPERSON Is he here? MR MAPOMA There is no indication that he is here, I have not seen him today. CHAIRPERSON Where is he? Just call his name out so that I can see whether he is here? Call his name three times and see whether he is here? MR MAPOMA Mr Chairman, there is no positive response, he is not here. CHAIRPERSON Yes, very well. What do you intend doing? MR MAPOMA Mr Chairman, in the event of him not having honoured the subpoena, I think the matter will have to be taken with the Commission whether to take it further, by way of prosecution at this stage. CHAIRPERSON Yes, very well. But in so far as these proceedings are concerned? MR MAPOMA In so far as these proceedings are concerned Chairperson, the evidence now is completed. CHAIRPERSON Mr Dukada? MR DUKADA Mr Chairperson, as I indicated earlier we don't intend to call any witness in opposing the application, we will argue the matter on the basis of the evidence already led. CHAIRPERSON Very well. As I understand the position, the legal representative of the applicants, do not have any further witnesses they wish to call. MR HUGO That is correct Mr Chairman, yes. CHAIRPERSON Mr Wessels, do you have any witness that you want to call? MR WESSELS Thank you Mr Chairman, as representative of Gen Kawe, he has the right to testify or to adduce evidence. It is not his wish to testify or adduce any evidence, so as far as him being an implicated person, he has nothing to present to the Commission. CHAIRPERSON Yes, very well. Mr Majokweni? MR MAJOKWENI In respect of Colonel Booi and Gen Nkalitshane, my situation is the same as Gen Kawe. CHAIRPERSON Yes, they do not intend to place any evidence before this Commission, very well. It seems to me that the matter is then ready for argument, is that right? MR DUKADA Mr Chairman, may I put this in your able hands in the matter, our view is that it is absolutely important to have the evidence of Chief K.D. CHAIRPERSON Is it going to take the matter any further in so far as the applications are concerned, at this stage? We have heard all the evidence now? MR DUKADA Mr Chairperson, the evidence or our submission will be that the evidence of K.D. Matanzima may be relevant to the application by Mr Dandala and if, I don't know what the type of evidence Mr Matanzima will give at the appropriate stage, but if he gives evidence to say that the Transkeian authorities were aware about the killing, yet Mr Dandala has testified he wasn't aware at all that the killing was premeditated, then the question of full disclosure becomes relevant. CHAIRPERSON But there is no suggestion here, has there been, that the death of the deceased was pre-planned, has there been? MR DUKADA No Mr Chairperson. If the newspaper article which contains the remarks of Chief K.D. Matanzima does give a suggestion that the killing was premeditated. CHAIRPERSON Does that suggest that Mr Dandala knew about that, is there any suggestion about that? MR DUKADA No, no Mr Chairperson, I don't know if you follow my point. CHAIRPERSON I want to confine this because once the victims have all the right to appear at these proceedings, but one has to bear in mind that this is not an open enquiry. Matters that ought to be canvassed here, have to be confined to the relevance. We accept that there was this statement which was made in regard to the death of the deceased, by Matanzima, but is there anything to suggest that Dandala conspired with the government, because all he has told us is that he was told that something has to cover it up, that he has said. That is why some of the contents of his statements, he testified, were altered because there has to be a cover up, and he mentioned the names of those Officers who told him that there has to be a cover up. MR DUKADA Mr Chairperson, without wasting the time of the Committee as such, if we can just hand to the Committee the magnified version of the press statement, issued by President Matanzima. Just confine yourself to the portion of it which I find it very profound for purposes of the application by Mr Dandala. I quite appreciate that there is no evidence led in this Committee to say that Mr Dandala conspired, you can appreciate that, but if I can just give you ... CHAIRPERSON Once it is accepted, then there is no such evidence that he has not conspired, where do we go from here? MR DUKADA Mr Chairperson, I will appreciate that this is not a Commission of Enquiry, it is confined to the nature of the application, I just want to read the third paragraph there of the magnified version of the press statement. It says, he, that is the deceased, is the one who came from Lesotho with others and exploded a bomb in Umtata. The petrol depot which exploded and should have killed the whole of the Umtata population, was destroyed by this young fellow, Ndondo. The reason why we sought Chief Matanzima to be called, was to clarify whether this murder was premeditated. If it was premeditated, naturally the police including Dandala would have known about that. CHAIRPERSON But there isn't, there wasn't such conspiracy and so is the evidence of Tshabalala? MR DUKADA Yes, I appreciate that, but there are other applicants, they adduce their own evidence in this Committee, but we don't know what Chief K.D. would say. He might come and say ... CHAIRPERSON He is going to say what appears in this statement, this press statement. MR DUKADA Mr Chairperson, our stand is that we want Chief K.D. Matanzima to be called, and that is subject to the ruling of the Committee. ADV SIGODI Mr Dukada, in this magnified press statement, is there anything that suggests that there was a conspiracy? MR DUKADA Honourable Member and the Committee, we are very much au fait about the evidence led here, there is absolutely nothing which suggests a conspiracy. ADV SIGODI No, no, I am referring to the press statement that you are referring us to. MR DUKADA The paragraph which I read to the Committee, gives one obviously an inference that the killing was premeditated. Or if I am wrong in my interpretation of the statement, that is precisely the reason why we took the initiative for Chief Matanzima to be called and questioned relating to the statement. He might come and say that there was nothing indicating a premeditation, this was not a premeditated killing. He might come and say it was a premeditated killing, which will definitely go straight to the nature of the application brought by Mr Dandala here. Let me reiterate my stand on this aspect, we have taken the initiative to call Mr Matanzima and he has been subpoenaed and we have indicated the area on which we want clarity from questioning Mr Matanzima. The whole matter now stands entirely on the ruling of the Committee. I can't take the matter any further. ADV SIGODI Yes, I hear what you say, but I mean if one reads the statement as it is, one can infer that - I mean people knew that - he is saying that many people are asking why Ndondo was killed, and then he goes on to describe who Ndondo was. He is the one who came from Lesotho with others and exploded a bomb in Umtata. The petrol depot which exploded which should have killed the whole of the Umtata population was destroyed by this young fellow, Ndondo. The statement itself does not seem to indicate that there was any prior conspiracy. He may have been an activist, but the fact that he was involved in this, does not per se mean that there was a conspiracy to kill him, from the statement itself? MR DUKADA Well, Honourable Member, I have already indicated my case and I have exhausted my point. Without repeating myself the point I seek to, crave to the Committee is that if - some different interpretations could be made up of the press statement, why if a gentleman has been subpoenaed, he cannot come and clarify it? He cannot even take a minute to clarify it. CHAIRPERSON Have you finished? MR DUKADA I have completed? CHAIRPERSON Yes, Mr Zuko, Mr Mapoma, I beg your pardon? MR MAPOMA Thank you Sir, I have nothing to add. CHAIRPERSON Is this your submission? MR MAPOMA My submission Chair is that the Commission has subpoenaed Mr K.D. Matanzima at the instance of the victims. We did indicate in writing Chairperson, to the victims that we have subpoenaed him and we would expect the victims to take an active role in questioning him. Unfortunately the way things are happening now, he has failed to comply with the subpoena, and that being the case Mr Chairman, for these proceedings, there is nothing which can be done now for these proceedings. What the Commission can do is to pursue the matter through criminal court proceedings, by laying charges of contempt of Court, in terms of Act 34 of 1995. Therefore Chairperson, for the purposes of this hearing, my submission is that the matter has now to come to an end. CHAIRPERSON Mr Hugo? MR HUGO Mr Chairman, the possible evidence of Mr Matanzima will have no bearing whatsoever on my client's application, so for my client's purposes, we are satisfied that all the evidence had been led and that brings this matter to an end as far as his application is concerned. CHAIRPERSON Mr Dilizo? MR DILIZO Thank you Mr Chairman. Though Mr Chairman, it is not our version that Dandala was acting on instructions to kill, or that there was any conspiracy, but when one is having a regard to paragraph 38 appearing on page 15 of the bundle, which states that the operation which resulted in the killing of Batandwa was done at the instance and in the interest of the government of the then Republic of Transkei and I was acting in the course and the scope of my employment of the Department of Police of the said government. The government of the day was fully appreciative of the operation. When one is having a regard on that matter, Mr Chairman, then if K.D. Matanzima does give evidence, it would make the benefit of that in terms of that paragraph to elicit what is beneficial to the, what may be beneficial to the success of the application a lot. But, we are at the hands of the Court, if the Court decide that he should be called, we would appreciate that, but if the Committee, I am sorry, decides otherwise, then we will abide by that decision. Thank you. CHAIRPERSON: What was his evidence in regard to the appreciation, the issue whether the government of the day appreciated the mission? MR DILIZO Mr Chairman, that is an inference which is gathered from the conduct of the senior authorities afterwards. CHAIRPERSON But he was specifically asked in his evidence, what did he say there? MR DILIZO Sorry, at the moment, until I can have a glance at that particular answer, I cannot just be able to reply now. CHAIRPERSON Mr Knight? MR KNIGHT Mr Chairman, I share the view of Mr Hugo in this matter. Mr Matanzima's evidence doesn't take my case any further. However, just a suggestion from my part, with regard to his representative. My recollection is that he said he was going to take instructions. It might be an idea for the Evidence Leader to contact him possibly by phone, to find out what those instructions are, because he didn't exclude the possibility that the person would be called. All he said that he wanted to be excused for the purpose of taking instructions. I can't take the matter further on that, thank you My Lord. MR MAPOMA I am sorry Mr Chairman, I have just received information from Mr Majokweni, that he has communicated with Mr Hobbs. He has indicated to him that he is on his way. So I wonder if the Committee cannot perhaps give him some indulgence by an adjournment, to hear what he is coming to say? CHAIRPERSON Very well, we will take a short adjournment. What is his name? MR MAPOMA It is Jonathan Hobbs. CHAIRPERSON When Mr Hobbs arrives, would you direct him to the Committee then? For those who are ready to argue the matter, I gather that there will be heads of argument which would be prepared and submitted within a matter of five days, okay. There are just a couple of matters that I want to raise in regard to each of the applicants, which the applicants would be so kind enough so as to address. Make sure that amongst other things, they address this point. Beginning with Mr Dandala, we would like to hear argument as to whether his application demonstrates a political motive in light of his statement that he took part in the shooting out of fear that if he did not take part in the shooting, the Askaris may come back and kill him. The question that we want to raise in that regard is whether, does that, does his evidence not suggest a personal consideration? In regard to Mr Tshabalala, we would like to hear argument in particular as to whether there was any political motive in light of his statement that all he did was to shoot in order to apprehend a person who was fleeing from lawful custody, that separates the question as to whether the conduct amounted to any offence. In regard to Mr De Kock, we would like to hear argument as to whether there was full disclosure in light of his inability to provide the Committee with the details as to how he went about changing the identity of Mr Tshabalala. These are some of the aspects which we would like to be addressed. Is there anyone who wants to raise anything? Okay, I noticed that Mr Hobbs is here. Come up. When you left here, you indicated that you were going to take instructions. MR HOBBS Indeed Mr Chairman, I am indebted to the Committee for allowing me time to do so. May I use this opportunity to inform you that the prospective witness Matanzima that on his behalf, proceedings will be instituted today seeking urgent interim relief pending a review and or appeal of the Committee's decision to require his testimony here. Such papers are in the process of preparation. CHAIRPERSON What are you suggesting? MR HOBBS Well Mr Chairman, we hope to have the papers served upon you in the course of the afternoon. CHAIRPERSON We are not going to sit here and wait for him, wait for those papers. MR HOBBS I beg your pardon Mr Chairman. CHAIRPERSON I am saying we have come to the conclusion of the evidence now. The only matter that is outstanding is your client, whose name was called out and he was not in attendance and we have been informed by the Evidence Leader that proceedings, that the Commission will take steps to deal with him for failure to obey the subpoena. MR HOBBS Yes Mr Chairman, on that point I can but contend that in view of the fact that I was given leave to take further instructions, that it implied that I could do so with some, at some convenience and with some ... CHAIRPERSON Provided that you treat this Committee with respect, you don't just go away and don't tell us when you are going to come back. At least you would have had the courtesy to indicate when you are going to come back. I suppose that is a matter that you will have to take up with the Evidence Leader. Is the position that - Mr Dukada it seems to us that in view of the attitude by Mr Matanzima, that he would like to contest the ruling of this Committee and the fact that the victims insist that he must appear, and also in light of what Mr Mapoma has informed us, as to the steps that the Commission intend taking against Mr Matanzima for failing to comply with the subpoena, it seems to us that the question of whether Mr Matanzima should come ought to stand over until it has been resolved by the Court, whereafter the fate of this application will then be decided. MR DUKADA I take your point Mr Chairperson, I have no further submission. CHAIRPERSON Isn't it the proper course to follow though? MR DUKADA Yes, I accept that. CHAIRPERSON What do the other legal representatives say? Mr Hugo? MR HUGO Mr Chairman, as I have indicated, it has no bearing on our situation whatsoever. CHAIRPERSON Well, it has a bearing indirect in the sense that once the applicant has made an application for amnesty, he is entitled to a decision, so the effect of this is that it will delay the decision. That is the indirect fact. MR HUGO That is unfortunate as far as the applicant is concerned. CHAIRPERSON It seems to me that until such time that the question of Mr Matanzima's appearance before this Committee has been resolved by the Court, these proceedings cannot be concluded. MR HUGO I tend to agree with you with respect Mr Chairman, I think that is the situation. CHAIRPERSON Yes, very well. MR KNIGHT Mr Chairman, I agree with what you are saying. There is no prejudice to my applicant. CHAIRPERSON Yes, very well. MR DILIZO Mr Chairman, I also agree with that. CHAIRPERSON Yes. Mr Wessels? MR WESSELS (No microphone) CHAIRPERSON Yes, indeed. Okay, very well. Mr Zuko Mapoma? MR MAPOMA Yes, thank you Chairperson, I think that is the proper one, I mean that is the best course that we can take, I accept. CHAIRPERSON Yes. In view of the developments in this matter which I have just outlined, it has become necessary to adjourn these proceedings to a date to be arranged. It is unfortunate that this has to occur, but Mr Matanzima is exercising his rights and the Committee will have to await the final resolution of this matter by the Courts, whereupon these proceedings will proceed further. It now remains for me to thank all the legal representatives for the manner in which they have conducted themselves, the families of the deceased and the members of the public, for their co-operation and when we had to loose time because of the lack of currency, the Interpreters who have had to do their job, the caterers, the media and everyone who has co-operated in ensuring that these proceedings run smoothly. I also want to thank the members of this Committee for their assistance. Is there any matter that ... MR MAPOMA There is no other matter Chairperson. CHAIRPERSON Very well, the Committee will rise. COMMITTEE ADJOURNS