amntrans AMNESTY HEARING 1999-02-08 PIETERMARITZBURG 6 LINDA JEFFREY XABA 3832/96 https://sabctrc.saha.org.za/hearing.php?id=53165&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99020112_pmb_990208pm.htm CHAIRPERSON Ms Patel, are you ready to proceed? MS PATEL We are thank you, Honourable Chairperson. The first matter on the roll for today is that of Linda Jeffrey Xaba, application number 3832/96. MR WILLS MR SHAW CHAIRPERSON Is that the widow of the deceased? MR SHAW That is correct Mr Chairman. CHAIRPERSON Are you the applicant in this matter? MR XABA Yes. CHAIRPERSON Will you please stand. Are you prepared to take the oath? MR XABA Yes. CHAIRPERSON Will you please stand? LINDA JEFFREY XABA (sworn states) CHAIRPERSON Thank you, you may be seated. Mr Wills. EXAMINATION BY MR WILLS Thank you Mr Chairman. Just one small matter before I lead the evidence Mr Chairperson. To avoid any confusion we must make it clear that the applicant in keeping with his detailed affidavit, and specifically Page 14 of the record and Paragraph 23 of the affidavit, the applicant is not applying for amnesty in respect of the attempted robbery charge in respect of which he was convicted and sentenced to a period of eight years imprisonment. As he states in his affidavit, he at no stage attempted to rob or robbed anybody. So essentially we are applying for amnesty in respect of the murder and the illegal possession of firearms and ammunition. CHAIRPERSON Yes, that has been noted. EXAMINATION BY MR WILLS ADV DE JAGER May I just come in here. I believe the deceased was Baxter, B A X T E R, according to the trial. MR WILLS MR XABA Yes. MR WILLS Very briefly Mr Xaba, I just want to also clear something up. I want to refer you to Page 5 of the record, paragraph 10(b) where you confirm or you note briefly what your political motivation or your political objective was in respect of killing Mr Baxter, and I quote - you've said Mr Bester but we're referring to Baxter. "Mr was misleading the electorate in that he was misinforming community as to how to complete the ballot paper." Do you confirm that? MR XABA Yes I do. MR WILLS Secondly you say something which, you say that he was intimidating local population to prevent them from voting in the election. What do you say to that? MR XABA MR WILLS You were convicted of this killing? ADV DE JAGER MR WILLS No. I can place on record that that is my handwriting. You were convicted of this murder and possession of illegal firearms and ammunition, and you were also attempted, you were also convicted of attempted robbery, is that correct? MR XABA Yes. MR WILLS And you got a sentence, an effective sentence of 25 years imprisonment was handed down. MR XABA Yes. MR WILLS Now is it not so as it says, as it is stated in your affidavit, that you confirm the murder, you confirm your participation in the murder, and also in respect of the illegal possession of firearms and ammunition? MR XABA Yes I do confirm that. MR WILLS But you deny that at stage you attempted to rob the deceased. MR XABA I dispute that. MR WILLS Now I think your, the history of your involvement in this, in the ANC and in the MK is set out very briefly, you were quite a seriously trained MK person who was trained in Cuba and various parts of Africa. MR XABA Yes. MR WILLS And eventually after returning to South Africa you trained certain people in the Bulwer area in Natal? MR XABA MR WILLS And because the police were looking for you, you went down to Mount Ayliff? MR XABA Yes. MR WILLS There you were confirmed to be an ANC member and you started taking an active role in the ANC and particularly in the voter education campaign? MR XABA MR WILLS And this is where you encountered the problem in respect of the deceased. MR XABA Yes. MR WILLS Okay. Can you tell the Committee what that problem was? CHAIRPERSON If you can just start by telling us when was it that he went to Mount Ayliff. MR WILLS Certainly Mr Chairperson. MR XABA I went in 1993. CHAIRPERSON When? MR XABA I think it was towards the end of July or early in August. CHAIRPERSON Thank you. MR WILLS Can you answer my question as to what problem did you encounter? MR XABA CHAIRPERSON Apart from misleading the people you say he came to harass the community, what do you mean by that? MR XABA I mean misleading and misinforming the community by saying harassing. All that led me to inform the Committee that I will not tolerate this, not any longer, I will solve the problem. I will take it upon myself to endeavour to solve the problem. The first thing that came into my mind in light of solving the problem I requested that we shall write a letter and send it to the Zonal Structure Chairman, that is, Mr Jakuja. We did not get any response thereof. CHAIRPERSON MR XABA The committee wrote, the branch committee that is, wrote the letter and it was going to Mr Jakuja who was the Chairman of the Zonal Structure. CHAIRPERSON Hold it, hold it, I would like you to spell the names as you go along. Mr Jakuja. How do you spell that name? MR XABA CHAIRPERSON And who was Mr Jakuja? MR XABA CHAIRPERSON Who was he? What position did he occupy? MR XABA He was the Chairman of ANC Zonal Structure. CHAIRPERSON And where was he situated? MR XABA He was situated in town, Mount Ayliff. CHAIRPERSON Yes. How was that letter delivered to him? MR XABA The committee took the letter to him, between the chairman and the organiser and the secretary, amongst them. CHAIRPERSON MR XABA Gwebani. CHAIRPERSON Spell that name. As you go along mentioning names for the first time will you spell them. So the letters were delivered to Mr Jakuja, by whom? MR XABA CHAIRPERSON MR XABA Yes, very true. CHAIRPERSON And who was he? MR XABA He was the organiser. CHAIRPERSON Who else? MR XABA CHAIRPERSON Who was he? MR XABA He was chairman of the branch committee. CHAIRPERSON Who else? MR XABA CHAIRPERSON Yes, who was he? MR XABA He was Chairman of Youth League. CHAIRPERSON Thank you very much. Do carry on. MR WILLS MR XABA Was involved what? MR WILLS Was involved with this delivery of the letter. In his earlier evidence. MR XABA Yes. MR WILLS And who was the secretary at that stage? MR XABA My apology. Vidio was the Chairman of the Youth League and the secretary and the mother body at the same time. MR WILLS And you indicated that you got no response to this letter, so what happened thereafter? MR XABA After that I took it upon myself that I will assault him and kill him, Mr Baxter that is. MR WILLS CHAIRPERSON MR WILLS MR XABA There are principles with regard to the MK policy, that are governing the MK body, where you would have a commander with the rights to take a decision and act upon that decision if necessary. Then I applied such policies as a commander of Umkhonto. MR WILLS And then, after the incident ...(intervention) CHAIRPERSON That means if you were a commander of the MK at the time you had a right to do what? MR XABA Yes. CHAIRPERSON To take decisions? MR XABA Yes. CHAIRPERSON What else did you say? MR XABA To report also after I have taken and acted upon the decision. CHAIRPERSON Yes, do carry on. MR WILLS Thank you Mr Chairperson. Is it not so that you did in fact report what you had done, and if so to whom? MR XABA I did report that to the chief staff of Umkhonto in Umtata by the name of Sibusiso and another name is China. Shiner or China. CHAIRPERSON ...(indistinct) take all that down. You did report to China. What did you say his position was, what office did he occupy? MR XABA He was Chief of Staff for Umkhonto at the time in the Transkei region. CHAIRPERSON Yes, do carry on. MR WILLS Thank you Mr Chairperson. MR XABA Yes I do. MR WILLS And in this affidavit Mr Gwebani states that this problem was raised at the meeting of the ANC branch at Mount Ayliff, the problem being that Mr Baxter was misleading people as regards how to vote, is that correct? MR XABA Yes. MR WILLS And Mr Gwebani also states that you indicated that you were going to solve the problem in terms of, sorry to quote, he says that you were going to come up with the solution as an MK member, you were going to solve the problem. Do you confirm that? MR XABA Yes I do. MR WILLS Now when did you inform this Committee of this decision in relation to the letter that you spoke of earlier, when you wrote to the Zonal Chairman? MR XABA I notified it right before I took the decision of killing Mr Baxter. MR WILLS MR XABA Yes. CHAIRPERSON MR WILLS CHAIRPERSON Paragraph 13? MR WILLS No, paragraph 15 on Page 13. CHAIRPERSON ...(indistinct) MR WILLS CHAIRPERSON I want to know whether he himself wrote the letter or what it somebody else? INTERPRETER CHAIRPERSON Who was that letter written by? MR XABA It was written by the committee. CHAIRPERSON Carry on. MR WILLS MR XABA Yes, I do recall that. MR WILLS: MR XABA Yes, I do recall that. MR WILLS Now I want to know which was first, the letter or when you took the decision to take the solution as an MK member. MR XABA ADV SIGODI Just to get some clarity on this letter. You say you advised the committee to write a letter to Mr Jakuja? MR XABA Yes. ADV SIGODI What were to be the contents of that letter? MR XABA To report to - to give report to him and inform him about the activities of Mr Baxter amongst the ANC members of the community. ADV DE JAGER Did Mr Baxter belong to any political party? MR XABA He was a card-carrier of ANC. CHAIRPERSON Yes, carry on. MR WILLS Thank you, Mr Chairperson. CHAIRPERSON You said that you advised ...(indistinct) INTERPRETER CHAIRPERSON ... Mr Jakuja, you have told us that. What happened after that? MR XABA The committee did write the letter. CHAIRPERSON And what response did you get from Mr Jakuja? MR XABA No response thereof. CHAIRPERSON Carry on. What happened next? MR XABA INTERPRETER MR XABA I took the gun and went to shoot him. The way I did this, I went and waited for him along the road. In fact the morning which I killed him I took the ANC papers that I was going to use in this vote campaign from the ANC office at Mount Ayliff. Unfortunately the receptionist was not in the office when I got there. I saw him suddenly driving his car, Mr Baxter that is, across the road and I then decided let me go back home and leave the leaflets, the pamphlets, the voter pamphlets, leave them at home and take the gun instead. And I went to wait for him along the roadside. As I was standing and on guard - it was not the first time I did that, I had done that occasionally in the past just sort of follow his itinerary or daily programme, and I did notice that he would pass on Monday, or drive on that road on Monday and Thursday, and the following week I would check on him if he will drive on Monday and I will realise that he will drive on that road the following day, on Tuesday. Then that time I spotted him and I decided to go home and leave the leaflets and take the gun instead to await for him. I took with the gun five litres of milk. I stood by the road, far away from the houses, and I think the closest house would have been about a 100 metres from the road that is, and there was a hillock between the place where I was standing and that house which was 100 metres away, and as he was approaching I stopped the car and he discovered, he thought I was coming or buying milk. INTERPRETER The interpreter has a problem, the system keeps cutting. I can barely hear the applicant and the speaker gets to be incoherent. CHAIRPERSON Sorry, take your time, speak a little slowly so that the interpreter can hear everything that you have to say. You were telling us that later that night you fled to Umtata and reported to the Chief of Staff about what you had done. MR XABA Yes. CHAIRPERSON Carry on. You said something about 1994, what was happening? You said early in 1994? What happened? MR XABA As I was in Umtata, I was running away trying to escape from the police, from being arrested, and I went to join the peace keeping force in Bloemfontein. I was being sent there by the MK. I saw the comrades being arrested right in Bloemfontein. We had cases and I asked for permission to visit home. I asked for permission to go back home as a person who would only be visiting home. When I got in Umtata I decided, in fact I did not decide but I was sent to Pretoria in Welmanstad to conduct integration there. And when I came back from the integration to visit home here in Pietermaritzburg ...(intervention) CHAIRPERSON You are going too fast. What is the name of this place that you say you went to? Welmanstad? MR XABA Walmansdal, the name of the place. CHAIRPERSON Where is that? MR XABA CHAIRPERSON Why did you go there? MR XABA They needed MK soldiers to go to that area to do the integration or conduct the integration, especially the commanders. It was of great importance that we be the ones who get into the army of the country. That is why or hence I was sent to that area in Pretoria, Walmansdal. CHAIRPERSON Who was the person that sent you there? MR XABA It was the regional army commissar of MK. CHAIRPERSON What is his name MR XABA Pitlo is his name. CHAIRPERSON Will you spell that for me? MR XABA CHAIRPERSON Yes, now what is the office he occupies. what was his position? MR XABA He was an army commissar. CHAIRPERSON Yes? MR WILLS Thank you. And you say in your affidavit that you were eventually arrested in 1994 at the tollgate at Pinetown, and this was no doubt when you were on this trip back home that you mentioned in your affidavit, correct? MR XABA No, this is a mistake. In 1994 I was arrested next to or in Creighton. CHAIRPERSON What were you arrested for? MR XABA I was arrested for the very case of killing Mr Baxter, and another one that I committed in Pinetown in 1992, so there were two warrants of arrest in other words. CHAIRPERSON What was it that you committed in Pinetown? MR XABA In 1992 I was arrested in possession of arms that I had concealed in my, in the boot of the car and I was transporting them to Natal Midlands. ADV DE JAGER MR XABA When I was being arrested in 1994 I was being arrested for the case of 1992 and 1993, so there were two warrants of arrest. And I was charged with the one of Mr Baxter and I was convicted with the one for 1992 in CR Swart in Westville. So this particular one was a further charge. MR WILLS I just want to clear something up, and I refer the committee to Page 11 of the papers in paragraph 20. MR XABA MR WILLS Sorry, I just want to clear that up. You say you were arrested, what year were you arrested near the tollgate? MR XABA It was in 1992. MR WILLS And in 1994 you were arrested in Creighton, at your home. MR XABA Yes in Creighton, on September 4. I was being arrested for killing Mr Baxter. MR WILLS Yes, and is it not so that you were granted amnesty, you were, well, first of all you were sentenced to long periods, I think 15 years of imprisonment in relation to the illegal possession of the firearms that you were caught with in Pinetown and you were granted amnesty, you served a one year sentence and you were granted amnesty? ADV DE JAGER MR XABA Yes. MR WILLS CHAIRPERSON That was an indemnity ...(indistinct) the previous Act. MR WILLS Yes, thank you Mr Chairperson. CHAIRPERSON You say that he was granted an indemnity in respect of his sentence for fifteen years? MR WILLS You were serving a 15 year sentence, but you indicated you were also being held in respect of the murder of Mr Baxter, is that correct? INTERPRETER Please may you repeat your last question. MR WILLS I say you had been serving a 15 year sentence, but you were also being held in respect of the murder of Mr Baxter, is that right? MR XABA Yes. MR WILLS So even though you were granted indemnity in respect of the arms charges, the 15 year sentence, is it not so that you remained in custody in order to face trial in regard to the Baxter murder? MR XABA MR WILLS And where were you arrested then? MR XABA I was arrested in Creighton and I was on my way to vote. MR WILLS That must ...(intervention) ADV SIGODI ...(indistinct) MR WILLS So was this the voting for the local government elections, when you were arrested? MR XABA Yes, the local government. MR WILLS MR XABA Yes. MR WILLS Does that clear it up, Chairperson? CHAIRPERSON Yes. MR WILLS Thank you. May I continue? CHAIRPERSON Yes, please do. MR WILLS MR XABA MR WILLS You also indicated in answer to a question of one of the Committee Members that Mr Baxter was indeed an ANC card-carrying member. MR XABA Yes. MR WILLS Now what was your attitude in relation to this membership? MR XABA As usual, and being part of the struggle, you will find that there are some agents who will come and infiltrate ANC and I had experienced that in the past. MR WILLS Is it not so that one of your jobs in Tanzania, at camp in Tanzania, was to check the food that was being fed to the comrades in the camps, as you feared it was being poisoned by agents? MR XABA Yes. MR WILLS MR XABA MR WILLS Thank you Mr Chairperson. I have no further questions. NO FURTHER QUESTIONS BY MR WILLS CHAIRPERSON Just before we adjourn, what level of education has the applicant had? MR XABA Standard 6. CHAIRPERSON What kind of work have you done when you did work? MR XABA Carpentry and plumbing. CHAIRPERSON Where? MR XABA Railway. CHAIRPERSON Where? MR XABA Durban station, in Durban. CHAIRPERSON What years? MR XABA As from 1980 until January 1987. CHAIRPERSON Thank you. The Committee will take an adjournment for 15 minutes. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Mr Shaw, do you have any questions to put to the applicant? MR SHAW Thank you Mr Chairman. CHAIRPERSON You are reminded that you are still under oath, you understand? LINDA JEFFERY XABA (s.u.o.) CROSS-EXAMINATION BY MR SHAW If you would like to interpret that? INTERPRETER It has been interpreted to the applicant. MR SHAW The reason that they are opposing this application is because they are not convinced that you acted from a political motivation. Now, do you have any proof that you are in fact an MK member? MR XABA Yes, I do have. MR SHAW What proof do you have of that? MR XABA MR SHAW Do you agree with me that no proof was given to the High Court in Umtata that you were an MK member, nor has any proof been given to this TRC Commission that you are actually an MK member? MR XABA MR SHAW Do you remember appearing in the Mount Ayliff Magistrates Court after, I think, you had been brought from Westville prison? MR XABA Yes, I do remember. MR SHAW MR XABA MR SHAW Do you recall what you told the Court? MR XABA Yes, I do. MR SHAW Could you repeat what you told the Court. CHAIRPERSON MR SHAW Thank you Mr Chairperson. Mr Xaba, in the ...(indistinct) INTERPRETER MR SHAW Do you recall saying that to the Court? CHAIRPERSON Now just hold on. He said that to the Mount Ayliff Court? MR SHAW Yes. Mr Chairman he appeared - the offence had originated within the jurisdiction of the Mount Ayliff Court, he was therefore arrested and taken to that Court before the trial proceeded before the High Court of Transkei. CHAIRPERSON MR SHAW That is correct. Now Mr Xaba, what ...(intervention)? CHAIRPERSON MR XABA Yes, I do recall. MR SHAW What quarrel had you had with the deceased, Mr Baxter? MR XABA When I approached him and I said to him: "You are here now" and my first question was: "Do you know me?", and ...(intervention) CHAIRPERSON MR XABA Yes. CHAIRPERSON Right, now answer the question. What was the quarrel that you had with him? MR XABA CHAIRPERSON MR XABA Yes. CHAIRPERSON Thank you, you may proceed. Do you have a copy of that statement? Is that part of the bundle here? MR SHAW CHAIRPERSON Do you have a copy? MR SHAW I do have a copy, yes. CHAIRPERSON Will you be using that copy? MR SHAW I can hand this in to the Commission. CHAIRPERSON Do you intend using it, I mean? MR SHAW Yes, I think so. CHAIRPERSON Yes, will you make a copy available to us in due course? MR SHAW Certainly, Mr Chairman. MR WILLS Mr Chairperson, possibly I can come in at this stage. In the dictates of fairness I would request that should my learned friend want to present documentary evidence to the applicant in this matter I would appreciate being appraised of this beforehand and being in a position to take instructions on those documents. CHAIRPERSON MR WILLS As you please, Mr Chairman. CHAIRPERSON MR SHAW Mr Chairman I will do so. This document was made available at the previous hearing, to counsel for the applicant, and we in fact discussed this document as well as another statement made, which I intimated that I would not be using. This was at the abortive hearing in Durban. CHAIRPERSON Very well, we will make a copy of this particular document. What is the date of this document, Mr Shaw? MR SHAW CHAIRPERSON Thank you. ADV DE JAGER Have you got copies already, or could somebody assist him in making copies please? CHAIRPERSON Yes, you may proceed in the meanwhile. MR SHAW Mr Xaba, when did your political motivation first surface in this, as a defence? MR XABA Before I committed this crime. MR SHAW MR XABA MR SHAW MR XABA Yes. MR SHAW Could you tell us why? MR XABA MR SHAW So you limited your statement to informing the Court that you were a full member of MK? MR XABA MR SHAW CHAIRPERSON This document will go in as Exhibit A. Please proceed. MR XABA Would you please repeat the question. CHAIRPERSON MR XABA CHAIRPERSON MR XABA Yes. I thought I was questioned about the Court, not the police statement. ADV DE JAGER MR XABA MR SHAW Was that the first time you revealed to anyone your connection with MK? MR XABA You mean in Court? MR SHAW Yes. MR XABA I told the police first, and then I told the Court. MR SHAW MR XABA MR SHAW Thereafter the matter was postponed and eventually came before the High Court in Umtata before Judge Madlanga: M-A-D-L-A-N-G-A, and you were represented by Adv Majokweni: M-A-J-K-W-E-N-I? MR XABA ADV DE JAGER MR XABA CHAIRPERSON MR XABA ADV SIGODI Why would you be deported to Kokstad? MR XABA This is what I thought, I thought that the police from Transkei will think that I left KwaZulu Natal to fight there, and I thought that they were going to refer the case to KwaZulu Natal. MR SHAW Now Mr Xaba, at the trial in Umtata, before Judge Madlanga, you were represented by Adv Majokweni, is that correct? MR XABA MR SHAW And can you recall how long that trial ran, for how many days? CHAIRPERSON ...(indistinct). MR SHAW ...(indistinct) CHAIRPERSON If you can, tell him how long it took ...(indistinct). MR SHAW Mr Xaba, I think in total the trial ran for a total of seven or eight days, is that correct? MR XABA CHAIRPERSON Mr Shaw, was there any adjournment in the trial? MR SHAW Yes, there was Mr Chairman. CHAIRPERSON Was there a break in the trial? MR SHAW There was a break in the trial. CHAIRPERSON And is your question relating to this ...(indistinct). MR SHAW And the reason that the trial continued was because, although you had admitted all the elements of the offence, the prosecution took issue with you about the motive that you had given for committing the offence, is that correct? MR XABA MR SHAW MR XABA MR SHAW Did you have any problems with being represented by Adv Majokweni? MR XABA MR SHAW Was there in any way any criticism that you could level at the presiding judge, Judge Madlanga? MR XABA ...(no English translation). No. MR SHAW CHAIRPERSON MR SHAW Mr Chairman no, there was no appeal. CHAIRPERSON ...(indistinct). A man may be convicted by a judge who might have given him a fair trial, he may nevertheless disagree with the conclusion the magistrate may have come to. MR SHAW I take your point, Mr Chairman. CHAIRPERSON Is there somewhere in the judgment where the judge says that he does not accept the motive that was advanced by him? MR SHAW Yes, that is contained in the judgment, Mr Chairman. CHAIRPERSON Perhaps at a convenient time you will refer us to that. MR SHAW Mr Xaba, in your affidavit which is in the application, at paragraph 15 you state that Do you recall telling us that, and confirm the contents of your statement? MR XABA said the committee wrote a letter to Mr Jakuja? MR SHAW Yes. Now what evidence did you give the Court in Umtata in that regard, about the letter? MR XABA MR SHAW Right, so the situation now is that you in fact wrote two letters to Mr Jakuja, is that correct? - that's what you've just told us. MR XABA Yes. There may be two or more than two. I was the one who advised the committee to write, to write the first one. I actually advised the committee to do so. CHAIRPERSON When Mr Jakuja did not reply, why did you not go to him to ask him for his answer? MR XABA CHAIRPERSON MR XABA The three members of the committee went to Mr Jakuja and brought the letter to Mr Jakuja. CHAIRPERSON MR XABA CHAIRPERSON Yes, do carry on. ADV DE JAGER Did the committee deliver the second letter too, and if there was in fact a third one, did they deliver it by hand too? MR XABA Yes. ADV DE JAGER MR XABA CHAIRPERSON MR XABA Yes, it was. CHAIRPERSON Do carry on. MR SHAW Now, Mr Xaba, you gave evidence in the hearing under cross-examination, and the presiding judge asked you when this particular meeting was held, and your answer was "At the end of August, and also during September." - this meeting regarding the deceased, Mr Baxter. CHAIRPERSON Will you tell us when you are referring to, referring from ? MR SHAW Mr Chairman this arises from my notes. The committee does not have a record of this. The presiding judge asked you when this meeting regarding Mr Baxter had been held, and your response was that it was at the end of August and also during September of that year, do you recall that? MR XABA MR SHAW That is quite correct, and then he asked you various questions regarding these alleged meetings at which the problem of Mr Baxter had allegedly been discussed ...(intervention) MR WILLS CHAIRPERSON MR SHAW CHAIRPERSON You are not relying on documents. He's not relying on documents, he's not going to seek to prove the contents of documents, but he is entitled to put questions and the witness can admit or deny whether he said that. MR WILLS As you please, Mr Chairperson. CHAIRPERSON MR SHAW CHAIRPERSON Can you recall telling the Court that the matter of Baxter was discussed late in August and again in September? MR XABA CHAIRPERSON During that period? MR XABA Yes. CHAIRPERSON MR SHAW Now I might be wrong Mr Xaba, but the question was also put to you, was it the minutes that were sent to Mr Jakuja or was it a letter, and you indicated that it was the minutes that were sent to Mr Jakuja and not a letter. MR XABA MR SHAW Was the problem of Mr Baxter recorded in the minutes? MR XABA ADV DE JAGER Yes and at the next meeting they will read the minutes. Did you hear whether she recorded it or not? MR XABA MR SHAW CHAIRPERSON MR SHAW Mr Chairman, with respect, this was a matter of prime importance to the applicant. CHAIRPERSON Yes, but I mean his recollection of what is recorded in the minutes of meetings, are...(indistinct) recorded in minutes. It's also only an assumption that these minutes are read out at the subsequent meeting. ADV SIGODI And another thing, have you got a copy of those minutes, or was any copy of the minutes made available? MR SHAW Adv Sigodi, the situation is that those minutes have never been brought anywhere, they have never been made available, and my next question will bring precisely that to bear. Had you ever, during your trial, made arrangements for these minutes to be brought forward to prove that the problem of Baxter was discussed at an ANC meeting? MR XABA No. MR SHAW I see that Mr Gwebani who was interviewed on the 17th of June 1998, this is page 22, makes no mention of a letter to Mr Jakuja in his statement. MR XABA MR SHAW Now, have you made any attempt to contact Mr Jakuja to come and give evidence in support of this application? MR XABA MR SHAW And after committing this offence, you say that you went and reported to somebody in Umtata, who was that? MR XABA China. His other name is Sibusiso S-I-B-U-S-I-S-O. MR SHAW Do you know his surname? MR XABA MR SHAW CHAIRPERSON No confirmation by him to whom? MR SHAW MR XABA Sibusiso can actually confirm this. MR SHAW Now, how long did it take you to come to a conclusion that the deceased was misleading people? How long were you in the area before you came to the conclusion that the deceased was misleading people in their voting procedures? MR XABA It was a long time. I think more than two months I have been receiving these reports that he was misleading people. CHAIRPERSON If you arrived in Mount Ayliff in July or August, how soon after that did you receive a report of what Mr Baxter was doing? MR XABA Late August. CHAIRPERSON What year? MR XABA 1993. CHAIRPERSON Do carry on. MR SHAW And among these reports you received other reports that the deceased was maligning people by calling them kaffirs? MR XABA MR SHAW MR XABA MR SHAW And you also told the Court that these 200 people had also told you that he had tried to mislead them regarding voting? MR XABA MR SHAW Now, you knew that Mr Baxter was a farmer, did you not? MR XABA MR SHAW You knew that he was selling milk from the back of his motor vehicle, an LDV into Transkei? MR XABA Yes. MR SHAW And I think you told this inquiry just now that your observations showed that he went, I think on a Monday and a Thursday to sell milk on that particular route? MR XABA He was selling twice a week. It may be Monday or Tuesday or Wednesday or Thursday, but twice a week. MR SHAW So, if we have your evidence correctly then, the very people that he was selling to, he was maligning by calling them kaffirs and also trying to mislead them and at the same time he was selling them milk? MR XABA MR SHAW MR XABA MR SHAW To their faces? MR XABA MR SHAW And these were people that he was selling milk to? MR XABA Some will come and buy milk and some will just come there. Those are the people. CHAIRPERSON How does he ...(indistinct) to call his customers kaffirs? If he'd insult them, why would they buy milk from him? MR XABA CHAIRPERSON He knew full well that from then onwards they would not buy milk from him? MR XABA Only the ones he used to call them kaffirs were not buying milk from him. CHAIRPERSON So he realised that if he called people kaffirs they would not buy milk from him? MR XABA Yes. When he called them kaffirs, in my own view or opinion I think those he used to call them kaffirs were the ones who were arguing with him sometimes, they will answer him back badly. ADV SIGODI Sorry, just to clarify this point. Do you have knowledge where he would mislead these people? Would he mislead them whilst selling milk to them, or would he mislead them at another place, elsewhere? MR XABA He will use the same time he is selling milk to mislead them. MR SHAW MR XABA This is how he wanted to put his statement. MR SHAW And you called a Mr Lusawana to give evidence in mitigation of sentence at your trial, did you not? MR XABA I only called the chairman of the ANC but he was also present. MR SHAW You called him as a witness in mitigation of your sentence, correct? MR XABA MR SHAW And I read from page 66, line 20, or line 18 "Even my own family members were buying milk from the deceased." That is the evidence of Lusawana, and it was then put to him: "Were there any problems as a result of that occasioned to your family members? Did the deceased occasion your family members any problems?" And the witness went on to say: Now what position was Mr Lusawana, what did he hold? MR XABA MR SHAW So he was merely a member of the community there? MR XABA Yes, he was merely a member of the community and he was working at the cattle dip area. MR SHAW MR XABA CHAIRPERSON Are you nearly finished? MR SHAW No. Now, can you put forward any reason to this hearing as to why your version might have been rejected by the trial Court? CHAIRPERSON MR SHAW ADV DE JAGER Was Mr Baxter a member of any ANC branch? MR XABA Yes. ADV DE JAGER Who was the chairperson of his branch? MR XABA ADV DE JAGER MR XABA ADV DE JAGER MR XABA ADV DE JAGER MR XABA What he will say, Deni and his committee, they will say that the man is dangerous, the man is dangerous and they are scared of him since he is misleading people. CHAIRPERSON Just clear it up, what branch did Mr Baxter belong to? MR XABA CHAIRPERSON Yes, do carry on. MR SHAW Thank you, Mr Chairman. MR XABA Yes, I do recall. MR SHAW The only single name that you could recall was one Kuki. MR XABA MR SHAW You confirm that he was the only person that you could recall, that he told you that the deceased had been misleading people regarding voting? - the only person you could put a name to. MR XABA Yes, even though I do know others. I only have a problem with their names, but I know them. This one I know his name because he was also in the committee. MR SHAW MR XABA MR SHAW And did you ever discuss the question of expelling the deceased from the ANC? MR XABA MR SHAW MR XABA No. MR SHAW So he was providing a service to the community? ADV DE JAGER MR SHAW Mr Chairman, it has been suggested that one of the possible motives could have been that opposition businessmen could have hired or requested somebody to kill him. CHAIRPERSON MR SHAW CHAIRPERSON ...(indistinct) ADV SIGODI MR SHAW ADV SIGODI Then put the case to the applicant. CHAIRPERSON What do you think? ...(indistinct) I understand what you are saying, you are challenging his motive ...(indistinct). Are you suggesting that he may have had some other motive in committing the crime, and not the one that he says was the reason? MR SHAW Mr Xaba, I am suggesting to you that your motive in committing the crime was not a political one, that it was either as suggested by the trial judge, that of robbery, or alternatively possibly you had another motive for committing the crime, namely that you had possibly been hired by business opponents in the area. MR XABA MR SHAW I have no further questions, Mr Chairman. NO FURTHER QUESTIONS BY MR SHAW CHAIRPERSON Ms Patel, are there any question you wish to put? MS PATEL No thank you, Honourable Chairperson. NO QUESTIONS BY MS PATEL CHAIRPERSON Any re-examination? MR WILLS No re-examination Mr Chairperson. NO RE-EXAMINATION BY MR WILLS CHAIRPERSON MR XABA CHAIRPERSON MR XABA At the time when this thing happened there was no negotiations, people who were enemies never sat down and talk about differences. CHAIRPERSON MR XABA It is true people were talking to each other, but at that time we were the product of, we were scared that we were going to be killed and also we were killing, killing was the solution. CHAIRPERSON ADV SIGODI ...(indistinct). CHAIRPERSON Please do. ADV SIGODI MR XABA ADV SIGODI Was it easy - firstly let me just get an idea of this area where you were campaigning for the ANC, was it a rural area or an urban area? MR XABA Rural area. ADV SIGODI And when conducting this voter education, how would you reach out to the community? MR XABA ADV SIGODI And would you get a big response from the people that you were educating? MR XABA Yes, we will. ADV SIGODI MR XABA Yes, a lot of people would go and buy milk from him ADV SIGODI MR XABA CHAIRPERSON MR XABA CHAIRPERSON I want to understand you quite clearly. You are saying that people, comrades, did not like the idea of expelling people for fear that they might be expelled. You said that, is that right? MR XABA CHAIRPERSON And so the next best person to do would be, instead of expelling a person, was to kill him? MR XABA ADV DE JAGER So in fact you killed a member of your own party? MR XABA ADV DE JAGER MR XABA ADV DE JAGER You never asked him; Listen why are you doing this, and discussed it with him to find out whether it was the truth indeed? MR XABA CHAIRPERSON ADV DE JAGER MR XABA ADV SIGODI How crucial were the results of the elections to you, how important were they? MR XABA It was very important to me. I wanted my organisation to win the 1994 elections. Especially in that area it was very important for me for my organisation to win. ADV SIGODI And this area, roughly how many people are there? Do you have an idea how big the population is there? MR XABA ADV SIGODI And if Mr Baxter had succeeded in misleading the people and have them vote for the wrong person, what did you think would have happened? MR XABA This was going to disturb my organisation because most people were going to vote for National Party instead of ANC. ADV DE JAGER MR XABA Yes. ADV DE JAGER MS PATEL Sorry, Honourable Committee Member. I believe that at that stage the elections, the fact that elections were going to be held was already settled. ADV DE JAGER Yes it was settled that there would be an election during the next year. CHAIRPERSON A decision to hold an election may have been taken, but when did the elections take place? MS PATEL In April of the following year, but arrangements had already started being made with various political parties months prior to that period. In fact, if my memory serves me correctly, the Independent Electoral Commission had already been constituted by that time. ADV DE JAGER They finally agreed on the New Constitution hearing, the end of November. I think there was a session of parliament in the first week of December at that stage. MR XABA ADV DE JAGER MR XABA Near Creighton. ADV DE JAGER Greytown? MR XABA Creighton. ADV DE JAGER So you were not canvassing in your own area, you only went to this area, Mount Ayliff, during end of July, beginning August, thereabouts? MR XABA I went there because I was escaping from police, so I went there to canvass for ANC. CHAIRPERSON MR WILLS CHAIRPERSON ADV SIGODI With respect, Chairperson, I would like to clarify the way I understood it from the applicant. He never said there were, the ballot papers were out ...(intervention) CHAIRPERSON He said he had voting papers which he took home and put them away. MS PATEL No, sorry Honourable Chairperson, he said pamphlets. He referred to pamphlets, not the actual voting papers. CHAIRPERSON MS PATEL Certainly, Honourable Chairperson. CHAIRPERSON ...(indistinct) thank you very much. ...(indistinct) move from there. WITNESS EXCUSED CHAIRPERSON Are you calling any other witnesses? MR WILLS CHAIRPERSON Yes, Ms Patel I would like you to investigate, or be part of this investigation, so that we have a proper picture of precisely what was happening in August/September. MS PATEL Yes I will certainly assist my learned colleague, thank you Mr Chairperson. CHAIRPERSON The offence was in fact committed when? MR WILLS 3rd of November 1993, Mr Chairperson. CHAIRPERSON You will find out when the dates for the election were fixed. ...(indistinct). ADV DE JAGER Mr Chairperson I think during November, the first week of November it might have been fixed already. CHAIRPERSON Do you have any objection to this matter being postponed? MR SHAW ADV DE JAGER You think that you will be able to call the witness during this week still? MR WILLS CHAIRPERSON Well, this matter will stand down to be dealt with at a convenient stage during this week. MS PATEL CHAIRPERSON MR SHAW Mr Chairman, I think the witness Gwebani can be contacted through the offices of the Mount Ayliff TLC. CHAIRPERSON Every attempt will be made to do that as soon as possible. MR SHAW CHAIRPERSON MR WILLS Sorry, Mr Chairperson, I would like to be clear on that. I think that has been alluded to by both the Honourable Committee Member and the Evidence Leader, that is that, my recollection of the evidence is clearly that he was referring to documents relating to voter education generally and not specifically to any other form of papers. I think as well Mr Chairman, with respect, that the ballot, the actual ballot papers and things like that were, came out much, much later, closer towards the election. CHAIRPERSON MR WILLS CHAIRPERSON Very well, this matter will stand adjourned and will be mentioned at a convenient time this week and Mr Shaw will be given adequate notice. Thank you very much. We will adjourn now and resume at ...(indistinct) COMMITTEE ADJOURNS ON RESUMPTION S B DLADLA: AM 3487/96 MS PATEL The next matter on the roll today is that of S.B. Dladla, application number 3487/96. MR SAMUELS I appear on behalf of the applicant Honourable Chairperson. My name is Samuels, first name Sivin. CHAIRPERSON Are you calling the applicant? MR SAMUELS I do. CHAIRPERSON ...(indistinct) INTERPRETER CHAIRPERSON Will you please stand. Are you prepared to take the oath in this matter, to tell the truth? S B DLADLA (sworn states) CHAIRPERSON You may sit down. Proceed. EXAMINATION BY MR SAMUELS Thank you Honourable Chairperson. Mr Dladla, what is the date of your birth? MR DLADLA 1970, March the 3rd. MR SAMUELS Where were you born? MR DLADLA I was born in Estcourt. MR SAMUELS Are you applying for amnesty in relation to the death of Mr Mkhize, is that correct? MR DLADLA In relation to the death of Mr Madisela. MR SAMUELS I beg your pardon. And when did this death take place? MR DLADLA MR SAMUELS Were you sentenced to prison for this offence? MR DLADLA Yes. MR SAMUELS What sentence did you receive? MR DLADLA They gave me, I was sentenced to eight years. MR SAMUELS And what was the date of your sentence? MR DLADLA That happened in 1994, the month of November. MR SAMUELS Were you involved in the killing of the deceased, relating to the case that you got your sentence? MR DLADLA Yes, it is so because I am here to apply for amnesty. MR SAMUELS Now what political party do you belong to? MR DLADLA I am IFP. MR SAMUELS How long have you been a member of the IFP? MR DLADLA Since my youth days. My parents were IFP members. MR SAMUELS Does your father hold any special position in the IFP? MR DLADLA Yes, he held position. MR SAMUELS What position was this? MR DLADLA He was a leader of IFP in Estcourt from, in my speculation I think, he was a leader of IFP in Estcourt in Wembezi. MR SAMUELS Estcourt and ? MR DLADLA CHAIRPERSON How do you spell that? MR DLADLA MR SAMUELS CHAIRPERSON Thank you, carry on. MR SAMUELS Did you hold any special position in the IFP? MR DLADLA I was a youth leader of the IFP. ADV DE JAGER A leader or an organiser? INTERPRETER ADV DE JAGER Were you an organiser or a leader? MR DLADLA I was a leader, of the youth league. MR SAMUELS Now, were other members of your family also members of the IFP? MR DLADLA INTERPRETER It looks like a newspaper cutting. MR SAMUELS Are you referring to your newspaper cutting which relates to the political guests of your brothers. DLADLA Very true. MR SAMUELS Would you like to hand that exhibit to the Members of the Committee in the meantime? Is it correct that your brothers died after this incident? MR DLADLA MR SAMUELS Whilst you were in prison? Whilst you were serving your prison sentence? MR DLADLA Yes. MR SAMUELS Who is suspected of having killed your brothers? INTERPRETER Suspected of having killed who? MR SAMUELS His brothers, his late brothers. MR DLADLA There was another inmate and we were together talking with other inmates in prison, and we were discussing about that issue to an extent that we mentioned that they were the ones who were behind this incident. MR SAMUELS MR DLADLA ANC. MR SAMUELS MR DLADLA We headed for Ulundi to some conference that was taking place there. IFP conference that is, or meeting. MR SAMUELS How were you travelling? MR DLADLA We were travelling in busses. MR SAMUELS And did this bus contain only IFP supporters. MR DLADLA Yes, IFP members were in the bus, all of us that is. MR SAMUELS Previously when you travelled to IFP meetings and conferences did you experience any difficulty along the way? MR DLADLA Quite often we did encounter difficulties. It was usual for us to encounter things like attacks on our ways, or on our way to such meetings or conferences of the organisation. CHAIRPERSON Who do you believe was responsible for these attacks? MR DLADLA None other but ANC. ...(no English interpretation) they were the ones behind it. ANC. MR SAMUELS And why do you believe that the ANC were attacking IFP people on the way to these meetings? MR DLADLA It is because they were the ones we were fighting against from the onset, and even in Estcourt it was public knowledge that we were fighting against them, and they were in particularly, or particularly, fighting the family of Dladla. MR SAMUELS Did you attend any meeting where these attacks were discussed? MR DLADLA MR SAMUELS Did the leaders address the question of the attacks on IFP members coming to the meeting? The leaders of the IFP, address this at the meetings? MR DLADLA Yes that was discussed or addressed. MR SAMUELS What was the advise or directive that the leaders gave to the IFP members? MR DLADLA It was suggested that if there would be any people who want to attack the group it would be only ideal for us to attack back as well. We shall be at all times alert of how we would defend ourselves and attack back, or launch counter-attacks if necessary. MR SAMUELS Now on the day in question, what happened? What made ... I withdraw that question, Honourable Chairperson. Did anything happen that caused concern on the day in question? MR DLADLA Yes. MR SAMUELS What was that? MR DLADLA When we leave as members of the IFP we leave to a meeting we will be attacked spontaneously and unaware. CHAIRPERSON No the question is, on the day in question what happened? MR DLADLA Please repeat your question. CHAIRPERSON On the day of the killing of Mr Madisela, what happened before he was killed? MR DLADLA You mean what happened prior to the incident? What do you mean by saying what happened before his death, or before we killed, or he was killed. INTERPRETER ADV DE JAGER Did you, wanted to go somewhere? Did you hire a bus? Did somebody do anything to you? MR DLADLA MR SAMUELS When you say we disembarked from the bus, how many people are you referring to? MR DLADLA This is a hypothetical figure, it would be around ten of us who got off the bus. It was at night, another thing, I would not be in a position to furnish beyond reasonable doubt the number of the people who got out of the bus. MR SAMUELS Were these all males who got off the bus? MR DLADLA Very true. CHAIRPERSON Where did you go to when you got out of the bus? MR DLADLA We instantly attacked the car that was approaching. MR SAMUELS Now in this bus, were there only males, or were there women and children as well? CHAIRPERSON ...(indistinct) INTERPRETER CHAIRPERSON MR SAMUELS Thank you Honourable Chairperson. CHAIRPERSON Now, you attacked the car that was approaching? INTERPRETER CHAIRPERSON Was the car stationary when you got to it? MR DLADLA No it was not stationary when we got to it. It was moving, but slow, trying to take a U-turn. CHAIRPERSON Who was in the car? MR DLADLA ADV SIGODI MR DLADLA Yes. ADV SIGODI It was trying to make a U-turn? DLADLA Yes. ADV SIGODI Then I would imagine that there was another person who was outside the car, did I hear you correctly? MR DLADLA MR SAMUELS The question I asked is how many people were in the car? MR DLADLA It was at night, I think there were two because the other one was already outside. Since it was dark I was not in a position to see exactly as to what was happening with the situation in the car. MR SAMUELS So you told us the other one was already outside. Was there someone inside the car? MR DLADLA Yes, the deceased was in the car. MR SAMUELS Where was he seated? MR DLADLA MR SAMUELS When you attacked this car, did the deceased try to do anything? MR DLADLA ADV DE JAGER Did you get hold of the driver while the car was making the U-turn? MR DLADLA Yes. ADV DE JAGER Who got hold of him? You yourself or one of your companions? INTERPRETER Please repeat your question. ADV DE JAGER Who got hold of the driver? Was it the applicant or was it one of his companions or more of his companions? MR DLADLA By the time I got there he was, they had already gotten hold of him by the time I reached the point because I was behind in the bus so I was not one of the first ones who got off the bus. ADV DE JAGER Did they drive him out of the car or did he remain sitting in the car? MR DLADLA By the time I got there he was already outside and the door of the car was wide open. ADV SIGODI MR DLADLA When I got there they were already dragging him outside and the door was opened. MR SAMUELS Now when you say they were dragging him are you referring to the people who were in the bus with you? MR DLADLA We were many, and we, I have about, I have another co-accused in this case and other were released or discharged, and ...(intervention) MR SAMUELS MR DLADLA Yes. MR SAMUELS Besides dragging him, did you see anyone assaulting the deceased? MR DLADLA Yes they were assault, by the time I got there they were assaulting him. MR SAMUELS Who did you see assaulting the deceased, and how did you see them assaulting the deceased? MR DLADLA Since ...(indistinct) name, and I have other co-accused, I saw the co-accused. MR SAMUELS What was his name? MR DLADLA Masoga Ndaba. MR SAMUELS Now what did he do? MR DLADLA They were assaulting him and I also contributed with the weapon I had in my possession. CHAIRPERSON MR DLADLA Yes. CHAIRPERSON How were they assaulting him? MR DLADLA CHAIRPERSON What were they stabbing him with? MR DLADLA CHAIRPERSON And what weapon did you have? MR DLADLA I had a stick and a spear. CHAIRPERSON And what happened when you assaulted him, all of you? MR DLADLA When I got there they were assaulting him and I joined them and I sustained injury on my right arm, INTERPRETER As he is demonstrating, the applicant that is. He is pointing. CHAIRPERSON Show me. MR DLADLA And I was injured by one of the police here. CHAIRPERSON Hold it. You sustained an injury to your right arm, and just below the left collarbone? MR DLADLA Yes. By ...(indistinct) CHAIRPERSON How did you get hurt? MR DLADLA CHAIRPERSON You were injured by one or other of your colleagues? MR DLADLA CHAIRPERSON What happened to the deceased? MR DLADLA I saw the deceased lying down. CHAIRPERSON And when he was lying down on the ground was anything being done to him? MR DLADLA No, immediately after I sustained this injury I went back to the bus. CHAIRPERSON My question is not what you did. My question was, was anything done to the deceased when he was lying on the ground? MR DLADLA No, not that I saw. CHAIRPERSON Was the deceased bleeding? MR DLADLA After I sustained this injury I never took notice of anything which was going on, I immediately went back to the bus so that I would not be in a position to say yes or no he was bleeding. CHAIRPERSON And what happened after you got back to the bus? MR DLADLA The bus was still there where it was parked. I got inside and slept. One of my colleagues helped me dress the wound. CHAIRPERSON Yes, carry on. MR SAMUELS You told us that you attacked the deceased with a, did you say you attacked him with a spear? MR DLADLA Yes. MR SAMUELS How did you attack him with the spear, and whereabouts on his body did you attack him with the spear? MR DLADLA I stabbed him once to the chest and immediately I sustained an injury then I took a right about turn and went back to the bus. MR SAMUELS Now, the other person whom you say was outside the car, what happened to him? MR DLADLA The one was outside the car, I only saw her in Court the first time. As for that day I did not even realise as to whether she was, the person was a female or a male. I only discovered that in Court. CHAIRPERSON So what happened to the female that was there? MR DLADLA She fled, into some houses nearby. Then we let go of her. I was already in the bus when all of that was happening. MR SAMUELS MR DLADLA In the bus I think there were only two or three women of the IFP and the majority was the youth and the leader of the males, and men, so it was a combination of males, or men and the youth ...(indistinct) with only about two or three women. MR SAMUELS Now when you heard this gunfire, what did you expect was going to happen? MR DLADLA When we heard the gunshot it went without saying it was that we were being attacked and we have to rise and do something. CHAIRPERSON Do you know where the gunshots came from? MR DLADLA It was very loud for starters, and the way I perceived this whole thing it was in such a way that this gunshot was emanating from the car, the approaching car, and thus we attacked. MR SAMUELS You said something about the lights of this motor vehicle that was approaching. Can you repeat that for us? MR DLADLA MR SAMUELS What political objective were you trying to achieve by attacking the people in the car? MR DLADLA We were trying to make a statement that each time we are being attacked by the ANC people we are also in a position, or we will be also in a position to defend ourselves, and the followers or sympathisers of IFP. MR SAMUELS The family of the deceased are here. Do you want to say anything to them about your actions? MR DLADLA Yes. CHAIRPERSON Yes, what is it you want to say? MR DLADLA I would like to apologise for the action that I executed ... INTERPRETER The interpreter could barely hear the applicant as he was talking. MR SAMUELS MR DLADLA CHAIRPERSON Did you know the deceased? MR DLADLA CHAIRPERSON What did you know about the deceased? MR DLADLA I know the brother, or the elder brother, to the deceased, and I heard he was working at Convoy. CHAIRPERSON Had you had any personal argument with the deceased on any occasion in the past? MR DLADLA CHAIRPERSON And was a gun found in the car? MR DLADLA That I did not see. CHAIRPERSON Did you hear whether a gun had been found? MR DLADLA No, I never heard that. CHAIRPERSON Is it possible that the sound that you heard which sounded like a gun was a sound that could have been made by the exhaust of the motor car? MR DLADLA CHAIRPERSON Ms Patel? CROSS-EXAMINATION BY MS PATEL MR DLADLA Yes. MS PATEL Did you know any other, did you have any other personal information about the deceased during that time? MR DLADLA No. MS PATEL Do you know whether the brother is an IFP or an ANC member? MR DLADLA MS PATEL For the record, Honourable Chairperson, page 2, paragraph 9(c)(4). Where did you get this information from? ADV DE JAGER MR DLADLA The lady who came, or the woman who came to the Court, she belonged to ANC, in Zwelitsha. MS PATEL MR DLADLA I am referring to the one who was in the car at the time of this incident. ADV DE JAGER MR DLADLA I forget her name, this happened long time ago. I have forgotten many people and their names thereof. I know her facially though. MS PATEL And you saying that she testified to the fact that she was an ANC member? MR DLADLA Yes. CHAIRPERSON Did she say that in Court. MR DLADLA Yes, she said that in Court. MS PATEL The Judge in his judgment has made no reference as to the political affiliation of the woman who you referred to. Her name is Nomatemba Khumalo MR DLADLA Yes. MS PATEL In fact, all that she testified to was that she had gotten a lift from the accused, I beg your pardon, from the deceased, on that day. MR SAMUELS CHAIRPERSON CHAIRPERSON MR SAMUELS Yes, that is correct Honourable Chairperson. MS PATEL Thank you Honourable Chairperson. CHAIRPERSON Yes, what did the Magistrate ...(indistinct) INTERPRETER MS PATEL ADV DE JAGER MS PATEL MR DLADLA The car was not stopped. MS PATEL CHAIRPERSON MS PATEL Yes. CHAIRPERSON Yes, what do you want to make of this? MR DLADLA MS PATEL How do you know that? MR DLADLA There will be meetings that will be called by IFP where we will conduct our regionals and do our things. She will not be part of us, so it was clear that she was an ANC member, and she will come back at night, coming back to Zwelitsha. MS PATEL MR DLADLA Yes. MS PATEL MR DLADLA Please repeat. MS PATEL MR DLADLA Yes, that is so. The majority of, in fact there were two organisations in Zwelitsha, ANC and IFP. And there will be such people that we knew belonged neither to IFP or ANC. MS PATEL MR DLADLA No, she is ANC member. I am adamant about this. Even yourself, when you have your kids or children at home, you will not fully know as to which one belongs to which group, so that as I was a leader of the youth league I knew many people, in fact all the people, from Wembezi way up to last place in the area. MS PATEL ... to the point. CHAIRPERSON What do you know about the deceased? MR DLADLA ADV SIGODI Then can it not be argued that the other people who got to him first must have known him? MR DLADLA ADV SIGODI Were the other attackers people from Wembezi? MR DLADLA I was the only one from Wembezi and the rest of the other people were coming from Zwelitsha, because everything that happened occurred there. MS PATEL Your brother was one of the co-accused in this matter as well. Was he also not from the same area as you? MR DLADLA Please repeat your question. MS PATEL Your brother. You claim that you were the only person of the group that was from Wembezi. Your brother was one of the co-accused in this matter as well. Is he not from the same area as you? MR DLADLA My brother was not even there. He only became part of this case because he was with the youth during the day in Zwelitsha, my younger brother that is. MS PATEL Are you saying that your brother is not from Wembezi? MR DLADLA ADV SIGODI In other words you are saying that he was a mere suspect? MR DLADLA Yes. Because those people living near Sgt. Mabaso disliked us because he did not like our group, so to speak. MS PATEL Was your brother not convicted for this offence? MR DLADLA Yes, he was convicted, and that was a mistake. He never took part in this incident, he was very young, he was not even active in such acts. MS PATEL You stated that if you had got to the deceased first you would have realised that this is a person that you know. MR DLADLA Yes. MS PATEL MR DLADLA MS PATEL But you were close enough to see him, not so? MR DLADLA MS PATEL Which part of the body did you stab him on? MR DLADLA He was already lying like this, or in this position, and I stabbed him on the right hand side to the chest. ADV DE JAGER So he was lying on the ground at this stage. MR DLADLA No, they were still holding him, and just before he lied down on the grass. ADV DE JAGER The interpretation came through that he was already lying when I stabbed him. He was lying when I stabbed him. Was that a mistake of the interpreter, or did you say he was lying? MR DLADLA They were still holding him, and with his arm like this, and they let go of him and he fell on the ground. It was at the time when I was, when I sustained the injury and I could not see if I really reached him, because he was already on his way to the ground, lying or dropping on the ground. ADV DE JAGER MR DLADLA Yes, I would have stopped the attack if I arrived there first. ADV DE JAGER But why, this car was shooting at you, or the man in the car was shooting at you? MR DLADLA CHAIRPERSON MR DLADLA CHAIRPERSON You say that if you were there ahead of your friends you would have prevented the attack on him. Is that right? MR DLADLA Yes, I would have prevented the attack. CHAIRPERSON If you had recognised who it was? MR DLADLA CHAIRPERSON Sir my colleague here wanted to know from you why would you have stopped your friends from assaulting this person, if this person, according to you, had fired ...(intervention) MR DLADLA ADV DE JAGER CHAIRPERSON At the bus, at your people, not you. MR DLADLA We heard this gunshot. As we heard this gunshot, we attacked subsequently. If he was shooting as well ...(intervention) INTERPRETER There is something wrong. It keeps cutting, the system that is, we cannot hear the speaker. We cannot hear him perfectly. CHAIRPERSON Yes, proceed please. MR DLADLA MS PATEL The question still is, why would you have wanted to prevent the attack? MR DLADLA If I was the first one to get there or ahead of the colleagues, I would have prevented this attack, prevented my colleagues from attacking. Because I was the leader of the youth league I would have been in a position to stop them. But unfortunately I was in fact the last one to get to the scene and the damage was already done. CHAIRPERSON We hear you are the leader and you could have stopped it, but the question that is being put to you is, why would you have stopped the attack on him? MR DLADLA CHAIRPERSON ADV SIGODI What difference would your knowing him have made, if you thought that he was shooting you? MR DLADLA Could you please repeat your question? ADV SIGODI The question is, you say that if you had got there first you would have prevented the attack on him, is that correct? MR DLADLA Yes, that is correct. ADV SIGODI And the reason why you would prevent the attack is because you would have found somebody that you knew? MR DLADLA Yes. ADV SIGODI Well the question is, you are saying that you thought that this person was shooting at you. What difference would it have made, your knowing him, if at all you thought that he was shooting at you? MR DLADLA INTERPRETER ADV SIGODI So you are saying you were not sure where these gunshots were coming from.? MR DLADLA Yes, I was not sure as to where it was coming from, but the way it sounded it was so loud to an extent that we did, we realised we are being attacked. ADV SIGODI In other words, the deceased was attacked by people who were not even sure that he had fired at them? MR DLADLA ADV DE JAGER MR DLADLA ADV SIGODI Did you say that the gunshot sounded very loud and very close? MR DLADLA ADV SIGODI MR DLADLA Yes, it sounded very close. ADV SIGODI Was the bus ever hit by any bullets? MR DLADLA No, not at all. MS PATEL In fact the evidence at the trial was that the car had stopped a hundred and fifty metres away from where the bus had parked. So if the gunshot sounded very close to the bus, why did people automatically, why did you assume that it came from the car? MR DLADLA The car had parked a distant, a short distance away from the bus and in front of the bus, and as that happened, as we heard the gunshot, we took it that it was coming from the car, and as I have already said that if only I was ahead of my colleagues and my friends I would have been in a position to prevent or stop the attack. MS PATEL MR DLADLA MS PATEL MR DLADLA That I know very well, or I knew very well. I was disappointed upon finding out the information that I found out after the arrest. MS PATEL And in fact, my instructions are that the deceased was an IFP member. MR DLADLA That I did not know, as to whether he was IFP member or not. As I said, that Mr Madisela, the station commander, that is, he knows very well I grew in front of him. I grew up in front of him and there was nothing else I would have done to him, or evil for that matter. But unfortunately we are quite a group of IFP people and my not being ahead of the group or the colleagues or my friends I therefore was not in a position to prevent or stop the attack and I could not even recognise, I did not even recognise the car in which the person was, because if I did I would have noticed that this is a man I knew very well, because I used to see him at the rank in Nomchezi. MS PATEL Given that you were a leader, would the reasonable thing not have been to get everybody at least to try and first speak to INTERPRETER Please repeat your question. MS PATEL Given that you were the leader, and you say that you would have had the power to stop everybody if you were in front, would there, for you, in terms of how you would have handled the situation had you been in front, would the reasonable thing not have been, given that you were a busload of people and he was just one person, to get him out and search him and see where the gun is and ask first what is going on, or to question him at least? MR DLADLA ADV SIGODI How many gunshots did you hear? MR DLADLA I think twice I heard the gunshot. ADV SIGODI You were asked by the Chairperson if there was no possibility that it could have been the exhaust of the motor vehicle, and your answer was that you were sure it was the sound of a gunshot. Do you remember that? MR DLADLA ADV SIGODI Do you know if any cartridges were found in that area MR DLADLA No I never heard anything to that effect. We only gathered more information after the arrest. ADV DE JAGER MR DLADLA Please repeat that question. ADV DE JAGER Did your friends push the car into a donga after the attack? MR DLADLA ADV DE JAGER MR DLADLA After all this we left immediately. We got in, they also followed into the bus and we took off. And I would not even have been in a position to tell if there were other people who remained behind as we were taking off or leaving, but we left immediately after the incident. ADV DE JAGER And where did you leave the corpse? MR DLADLA ADV DE JAGER MR DLADLA I did not see any gun. ADV DE JAGER MR DLADLA I would not have been able to do that, to search as to whether he had a gun or not, because we were in a rush. We were rushing for a meeting in Ulundi. ADV DE JAGER MR DLADLA If we are a group of people and we are being shot at we tell ourselves that we will charge forward. No matter what happens, we will charge forward. He will shoot continuously or indiscriminately as he will be shooting, but that will bother us not, we will continue and charge forward. CHAIRPERSON When you got to him he was being held by your colleagues, he was being attacked. You saw no gun in his hand? MR DLADLA No I did not see any gun. CHAIRPERSON And you heard nothing from any of your colleagues that a gun was picked up? MR DLADLA No, the next thing that followed since the incident was the arrest, and the police took my jacket and confiscated it and he took it. I did not know why he was doing what he did. CHAIRPERSON MR DLADLA CHAIRPERSON Yes alright, I withdraw my question. MS PATEL If I understand you correctly, what sparked this entire incident off was the gunshots that you heard. Is that correct? MR DLADLA MS PATEL And you acted in order to protect the IFP supporters that were on the bus? MR DLADLA CHAIRPERSON MS PATEL And thereby protecting parties around the bus, Honourable Chairperson. CHAIRPERSON And preventing further attack. MS PATEL MR DLADLA There are those who heard this gunshot. Say Mr Mabaso, the investigator, had already arrested a number of this group. Mr Mabaso took my relative together with others in the bus and influenced them to try and disrupt this whole case, as I tried to even explain this further I provided a picture. He is also implicated in the case of Glen, as he was released from prison and was assaulted outside. That I was told by other people in prison. He, a certain amount was paid and my aunt came to prison and explained to me that Mr Mambaso, he had fabricated some information. CHAIRPERSON MR DLADLA That is not true. There was a gunshot that was heard. CHAIRPERSON The witnesses at the trial, they said that there was no gunshot. INTERPRETER CHAIRPERSON At the trial no witness said that there was a gunshot. Is that correct? MR DLADLA CHAIRPERSON Yes, did anybody in Court, did anybody in the Court say that there was a gunshot that went off? MR DLADLA No-one mentioned that in Court. ADV DE JAGER You yourself gave evidence in Court. MR DLADLA ...(no English interpretation) ADV DE JAGER MR DLADLA ADV DE JAGER MR DLADLA Yes I am accused number three. ADV DE JAGER Now the Magistrate says that accused number three testified that he is living at Loskop, and that he had only heard about this offence after his arrest. MR DLADLA (no English interpretation) ADV DE JAGER MR SAMUELS CHAIRPERSON ...(indistinct) MR SAMUELS That is correct, Honourable Chairperson. MS PATEL ADV DE JAGER INTERPRETER ADV DE JAGER MR DLADLA Please repeat your question that you are posing to me. ADV DE JAGER MR DLADLA Yes, I did tell the Court that. ADV DE JAGER Was that true or not? MR DLADLA That I told the Court? ADV DE JAGER Yes. MR DLADLA ADV DE JAGER MR DLADLA Yes, now I am putting everything to the surface, the truth that is. CHAIRPERSON ...(indistinct) MS PATEL MR DLADLA Yes. MS PATEL MR DLADLA CHAIRPERSON MR DLADLA Yes, that is true. CHAIRPERSON Then you heard a sound that came like a gunshot? It could have come from anywhere, but you all rushed out of the bus, and there was a car parked a hundred and fifty yards ahead of you and everybody took it for granted that the shot came from the car and went to attack it. MR DLADLA Yes. CHAIRPERSON If there was a gun it would have been found. No gun was found. No evidence was given at Court that a gun was found. Is that right? MR DLADLA MS PATEL MR DLADLA No. The reason why we took notice of that car is because of the lights that were on and suddenly went off. And that raised great suspicions to us that it could be the car that was shooting, and suddenly we heard the gunshot so it went without saying that it must have emanated from the car, the gunshot that is. ADV SIGODI You say that you went to attack because of these gunshots, and one of your primary reasons that you have mentioned here is that previously there had been attacks on you as IFP people if you went to the meetings. Did I hear you correctly? MR DLADLA Yes, you heard me correct. ADV SIGODI When were you ever attacked before this incident? MR DLADLA ADV SIGODI If you can try and shorten your answers. How were you attacked on the other previous occasions? MR DLADLA We were in a taxi coming from ADV SIGODI MR DLADLA We were shot at. ADV SIGODI How many occasions were you shot at? How many times? MR DLADLA Many times. ADV SIGODI More than five times? On more than five occasions? MR DLADLA In one day we were attacked about five or six times as the car was passing. CHAIRPERSON Yes MS PATEL Thank you Honourable Chairperson. If we can just refresh your memory. No, before I do that, you stated that if you were in front things would have happened differently. I accept that. Let me put to you the evidence that was led at the Court during the trial, that you, together with some of the other accused, were of the first people, the only people who had gotten off the bus. There was no evidence that you were right at the back, or that you were the last person. In fact that you had all gotten off together. Then further, that you all went to the car together and the driver was dragged out. So you were present at the car from the inception of the assault. What is your comment? MR DLADLA I dispute all of that. MS PATEL It was also stated that whilst you and the rest of the people were still at the car busy with the deceased, that Jabulani Mkise, who was accused number on in the trial, had come back to the bus and threatened to kill people if they would say anything about he assault on the deceased. MR DLADLA MS PATEL Now I put it to you, if your intention was to prevent further attacks and protect people on the bus that you were on, there would have been no need to in fact threaten the people who you were seeking to protect. MR DLADLA MS PATEL MR DLADLA I did not remain behind. I left immediately. I went back to the bus. Anyway the Court of Law I did make mention of the fact. I did not do any of the things you say I did. MS PATEL MR DLADLA ADV DE JAGER Did you get any stitches on that wound? MR DLADLA Yes, in Ulundi. MS PATEL Finally, was there no other way besides killing the deceased, to prevent further attacks on yourselves that evening? MR DLADLA MS PATEL MR DLADLA Yes. MS PATEL Was it before or after this incident. MR DLADLA After the incident. After I was arrested. I was already in prison. MS PATEL So it in fact has no bearing on your state of mind at the time, not so? INTERPRETER Please repeat your question. MS PATEL MR DLADLA ADV DE JAGER When was your brother killed? Can you give her the date? MR DLADLA I heard in 1995, October. ADV DE JAGER Three of them were killed, hey. Your three brothers were killed? MR DLADLA From what I heard from the inmates who were friends to Glen, and since they belonged to the same organisation, ANC that is, he relayed that to them and one of them came to relay that to me that my brother was killed. But he was not convicted for that. ADV DE JAGER No, the only think I wanted to know was, only one of your brothers was killed, or were three of them killed? MR DLADLA Three brothers. The eldest ADV DE JAGER That was long after this incident? MR DLADLA Yes. ADV DE JAGER More than two years after the incident? MR DLADLA I think after a year. CHAIRPERSON I want you to have a look at page 6 of your application. Please have a look - does he have a copy of the papers before him? INTERPRETER He is requesting for a copy of his application. CHAIRPERSON Is that not him? MR SAMUELS I think that refers to the co-applicant, who has withdrawn his application. CHAIRPERSON At further questions? MS PATEL No thank you Honourable Chairperson. CHAIRPERSON At re-examination? MR SAMUELS No re-examination Honourable Chairperson. CHAIRPERSON ...(indistinct) call anybody else? MR SAMUELS No, Honourable Chairperson. CHAIRPERSON ...(indistinct) MS PATEL No, I have no witnesses thank you Honourable Chairperson. ADV DE JAGER ...(indistinct) the father of the deceased, or the widow, or somebody? MS PATEL CHAIRPERSON ...(indistinct) MR SAMUELS Yes I do, Honourable Chairperson, but I think the applicant should be here present when I do address, I think he walked out. CHAIRPERSON MR SAMUELS Just for the sake of continuity and hearing all proceedings against him. CHAIRPERSON Has he been taken away? MR SAMUELS CHAIRPERSON Bring the applicant back into the hall please. ...(indistinct) MR SAMUELS Yes, I think he needed to walk out. ADV DE JAGER CHAIRPERSON Let him be seated please. MR SAMUELS May I proceed now? CHAIRPERSON Yes. MR SAMUELS ADDRESSES COMMITTEE ADV DE JAGER MR SAMUELS CHAIRPERSON MR SAMUELS He indicated that he was the only one from Zwelitsha, pardon from Wembezi, and that this was a largely Zwelitsha crowd that was going, so it is not clear whether he was the leader, a leader as such would have got a report from the people from Zwelitsha, and he indicated that there were a number of people in this group. CHAIRPERSON MR SAMUELS CHAIRPERSON MR SAMUELS CHAIRPERSON The sound may have come from anywhere simultaneously more or less with the light of the car going off. Here are these chaps, they get out of the bus and all they see is a car whose lights have switched off suddenly. They draw a conclusion and they rush to attack that vehicle, without thinking. MR SAMUELS MS PATEL ADDRESS COMMITTEE trouble. Furthermore, Honourable Chairperson, my learned colleague has based his argument that there was a gun on the fact that, on the probability that somebody might have removed the gun before the applicant himself got there, yet the evidence at the trial was in fact that the applicant was part of the initial group, or part of the group that had gotten to the deceased, and had assisted in dragging him out of the vehicle. Furthermore, Honourable Chairperson, if one considers the context, there is no evidence that the bus was being fired upon. The only evidence that we have is the say-so of the applicant that he heard gunshots. This is not borne out by the testimony of anybody at the trial, and in fact I might add that persons who had testified at the trial were in fact IFP supporters who were on the bus. I would furthermore ask you to take into consideration in determining the motive of the applicant, that if it was indeed to protect the persons on the bus, then one needs to weigh that up against the evidence at the trial, of the witnesses, the female witnesses who in fact stated that they were threatened with murder if they had in fact, if they in fact had told anybody about what had occurred there that day. I will ask you to take into consideration further, into further consideration, the question of proportionality. The deceased was alone, he was unarmed, the group of people who had approached the deceased, in terms of the evidence before us there was no discussion with him, there was just an attack immediately. ADV DE JAGER MS PATEL Which is in fact what had occurred. The deceased had come there merely to drop somebody and was having problems with restarting his car, as the evidence was at the trial at the time. And given that the applicant has stated that he was the leader, he would have been in control of the group that had gone and approached the deceased. I would submit that it is expedient for him to state to us here now that he was in fact the last person who had gotten to the deceased. And furthermore, that question of expedience is, it goes over and beyond that, given that inasmuch as he has now testified to us that after the incident he realised who the deceased was, he despite that went and wrote in his application form that the deceased was an ANC person. Yet he confirmed to a question of mine whether he knew that the deceased was a priest or not, he said Yes. ADV DE JAGER In his application "My victim is a leader of the ANC organisation." Page two. MS PATEL CHAIRPERSON Where does it appear in his application form that he says the deceased was a member of the ANC? MS PATEL ADV DE JAGER Page 2, paragraph 9. INTERPRETER Please activate the microphone. MS PATEL MR SAMUELS IN REPLY ADV SIGODI However, this lady, he only saw her at the trial. He did not see her at the time of the attack. She was not a victim. So who could he have possibly been referring to? MR SAMUELS He did indicate that she was chased away by other people at the scene. That she was there and that she had gone away, and she had testified at the trial, so he obviously knew of her presence at the scene because he heard her evidence in Court. So when he have written the application he would have known that she in fact had come into Court and testified that she was. ADV SIGODI MR SAMUELS ADV DE JAGER MR SAMUELS ADV DE JAGER CHAIRPERSON They appear to be in a state of frenzy. MR SAMUELS CHAIRPERSON MR SAMUELS I concede Honourable Chairperson, in retrospect, and in retrospect in these times, you know one cannot understand the actions of these youths. CHAIRPERSON The question is you see whether their action was totally disproportionate to whatever provocation there might have been. Disproportionate to what their goal and objective was. MR SAMUELS CHAIRPERSON ... Court when they framed the Act knew they were dealing with that particular period, and therefore they do stipulate that one of the tests that you apply is to see whether the act was disproportionate or not. MR SAMUELS CHAIRPERSON ADV DE JAGER MR SAMUELS Thank you Honourable Member, I think maybe the applicant can uplift that. CHAIRPERSON The committee will adjourn until 09H30 tomorrow morning. COMMITTEE ADJOURNS