amntrans AMNESTY HEARING 1999-02-22 BOKSBURG CIVIC CENTRE 1 BEKI S. XABA AM 1729/96 DEATH OF MR SEKONYANA https://sabctrc.saha.org.za/hearing.php?id=53224&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99022225_bks_990222bk.htm CHAIRPERSON Good afternoon everybody. I apologise for the late start in this matter. It was due to, I believe, a transport problem in getting the applicants here. It was not the fault of anybody involved in the Commission here, so I apologise. However, we have started. MR PADI I am Thabo Padi, I appear for Mr Tulani Mlaba. CHAIRPERSON Thank you Mr Padi. MR DRAHT Mr Chairperson I am Heiko Draht from the firm Nel Kotze and van Dyk, attorneys in Pretoria. I am representing Mr Beki Xaba, Mr Alfred Ndlovu, Elias Mbatha and Mr Mpongosi. Mr Chairperson with me, assisting me, is Mr Chris van der Heyde from JH van der Merwe, attorneys. MR CLAASSEN Mr Chairman my name is Dawie Claassen and I appear today on behalf of Mr Norman Mandlake Mbatha and further matters, Mr John Ngoyani Sitholo and Joseph Magwaza. CHAIRPERSON Thank you Mr Claassen. MS LOCKHAT CHAIRPERSON Thank you Ms Lockhat. We will be then starting with the applications. There are two applications set down for this week. The one we will be starting with today is that of Messrs Mbatha, Xaba and Mlaba. I believe there are some submissions or something to be said Mr Padi? MR PADI Yes Mr Chairman. It has come to my attention that this, the matter of my client was wrongfully placed on this roll, because he was not involved in the incident that this hearing is relating to, so I therefore request to withdraw this matter from the roll. MS LOCKHAT The Commission is aware of that fact, and we do not have a problem in removing the matter from the roll. CHAIRPERSON MR PADI That is correct. CHAIRPERSON MR PADI CHAIRPERSON And then he can be informed that his application relating not only to other incidents but to the one that he refers to on the 23rd will be heard at a later stage, as soon as possible. MR PADI Yes, that is correct. CHAIRPERSON Thank you Mr Padi. We then remove Mr Mlaba's matter from the roll for today. MATTER OF THULANI MLABA: AM NO 4400/96 - REMOVED FROM ROLL MR PADI Thank you Mr Chairman. CHAIRPERSON You may be excused when you wish. MR PADI Thank you. CHAIRPERSON Mr Claassen? MR CLAASSEN ADDRESSES COMMITTEE CHAIRPERSON MR CLAASSEN It looks like a nine to me, I believe it might be, but it was in 1996. Mr Chairman concerning this specific application, if I might go back to the front page of this application, page 11, there appears a stamp on it dated the 20th of the twelfth month 1996, and ...(intervention) CHAIRPERSON MR CLAASSEN CHAIRPERSON I think also it needs to be noted as well, that each of the applications was assigned a different amnesty number, registration number. The first one, that is the one dated September, is 4175/96 and the next one is 4348/96. MR CLAASSEN That is indeed correct Mr Chairman. CHAIRPERSON CHAIRPERSON That is my exact submission Mr Chair. It appears that there is this slight discrepancy, just the few names that have been swopped around on the two different applications. Mr Chair just getting back to the, if I may, then just after it appears that this, both of these applications were received on the 20th of December 1996, and on the 19th of March, I think the last document was dated the 20th of March, the 19th of March, the Amnesty application brought out a decision based apparently on these applications, which states that amnesty is denied the applicant on the basis of the fact that the act does not relate to a political objective, and further that guilt is denied. CHAIRPERSON It would seem fro mthat page 16, Mr Claasen, that that decision was based on the application with reference number 4175. The September one. MR CLAASSEN That is correct Mr Chairman. Mr Chairman I have, I have had an opportunity to speak to my client about this. Maybe just starting at exactly the point I think Ms Lockhat would be gettinh at, is the fact that the Amnesty Committee as such has already made a decision based on two applications that have been submitted. Mr Chair, if I may offer an explanation for this. It is my instructions from my client, I asked him what occurred here, the Committee might, will also notice that the second application 4348/96 is written in Zulu. CHAIRPERSON Yes. MR CLAASSEN Mr Chair it is my instruction that this particular application was done in the handwriting of my client, was done by my client himself. CHAIRPERSON The Zulu one? MR CLAASSEN The Zulu one, that is correct. Mr Chair the first application which it is also my instruction the one that preceded the latter one by two months, was, when I asked my client about this, the applicant, he said that they became aware of the amnesty procedure, he was at this stage already serving a prison sentence, he was sentenced, and apparently someone offered to assist him. He said there was a white male in gaol with him who offered him, who offered his assistance in completing this application form. CHAIRPERSON A fellow detainee, a convict? MR CLAASSEN "...I do not know English or Afrikaans that is why I am writing in Zulu." Mr Chair if I might just get back to the fact that I believe at this stage it appears quite clearly that the two of these applications were received together by the Amnesty Committee, or by the TRC. ...(intervention) CHAIRPERSON MR CLAASSEN That is indeed true Mr Chair. The question which I would like to address, which I think arises from this, is the question that I, that should be asked, is where they, for reasons of purely administrative reasons, dealt with on the same, or at the same time, or had the initial application been dealt with at a time different to that of the second one. It is true as the Committee remarked, and I believe it was also indicated to me by Ms Lockhat, the problem that arose was that it was registered under different names, or different numbers, and the impression was also created that it was two different persons. Mr Chair what I would like to get at is, I think you also said so yourself, the decision of the Committee I think is purely based on the first one. Obviously if the second one had been considered it would have been different. It is, it is clear from the second one that the appliant does not deny his guilt but indeed admits it. CHAIRPERSON MR CLAASSEN Mr Chair and especially, and referring to specifically that, it is my submission that I think, and as you rightly say, it stands to reason, whether the second one had been considered, and, or had it been considered after the decision had been made, which obviously would have complicated things a bit, if I may, it appears from the application, the way it has been put together, and as you say purely on the face of it, true that it might have been administrative of nature the fact that it was stamped on the same date. Mr Chair I think my line of reasoning would be that the applicant could consider himself extremely unlucky in the sense that he did indeed submit two applications before, if, as I say it stands to reason, the decision was made, and a conclusion was reached based on only one of those applications, the one which does not favour him, or puts him in a position where, ...(intervention) CHAIRPERSON MR CLAASSEN That is true Mr Chairman. As I said, I took this up with the applicant and he said that because of the previous miscommunication between himself and this man that assisted him, he then out of his own decided to bring a further application. CHAIRPERSON MR CLAASSEN CHAIRPERSON MR CLAASSEN MS LOCKHAT CHAIRPERSON The rule 53, yes, the review procedures. MR CLAASSEN Pardon me, thank you Ms Lockhat, Rule 53. Mr Chair all said and done, that still remains my submission that I think the applicant is very, and as you rightly said all considerations of this nature taken into account a decision had been made, I feel that the only option left would indeed be to take this matter further with the Supreme Court and maybe if they are of the opinion that all relevant facts had not been taken into account there might be further recourse for the applicant. Mr Chair, I thank the Committee for this opportunity and I would leave it at that. CHAIRPERSON Thank you Mr Claassen. Ms Lockhat? MS LOCKHAT CHAIRPERSON So that decision must stand until such time that it is set aside, and the setting aside of that decision can only take place in the High Court. That Court would have the power and authority to do so, and it will of course only do so if it is satisfied that it warrants setting aside. If we were to proceed with your application today on the second application that you submitted, namely the Zulu one, and arrived at a decision different to the decision already arrived at, we would be left with the absurd situation of having two decisions on the same matter. One refusing amnesty and another one granting amnesty, and that just cannot happen. So we are basically prohibited at this stage from proceeding with your matter for that reason. Your only recourse if you were to take further steps would be to have the previous decision set aside. MATTER OF NORMAN MBATHA: AM NO 4175/96 - REMOVED FROM ROLL MS LOCKHAT Thank your Mr Chairperson. CHAIRPERSON MR DRAHT CHAIRPERSON Mr Xaba, do you have any objection to taking the oath? BEKI XABA (sworn, states) CHAIRPERSON Mr Draht. EXAMINATION BY MR DRAHT Thank you Mr Chairperson. Mr Xaba, what is your age? MR XABA I am 32 years old. MR DRAHT And where are you residing at the moment? MR XABA I am in Boksburg prison at the moment. MR DRAHT When will you be released from prison? MR XABA I will be released on the 1st of the fourth month this very same year. MR DRAHT The incident in respect of which you are applying for amnesty now took place in January 1993. Is that correct? MR XABA That is correct. MR DRAHT Were you part of any political party at that time? MR XABA Yes. MR DRAHT Which political party? MR XABA Inkatha Freedom Party. MR DRAHT What was your position in the party? MR XABA I was a follower. MR DRAHT In your first statement to the TRC you mention that firstly you were a victim of circumstances. Can you please explain what you meant by that. MR XABA To briefly explain, the reason is that there was violence between the IFP and the ANC, and it was painful to me because black people were killing one another, so that I also became a pawn of this political conflict. And I, therefore I became a victim of politics, this political game. MR DRAHT MR XABA MR DRAHT Were you approached by a lawyer when you made the first statement? MR XABA MR DRAHT Can you please explain then to the Committee what happened on the 23rd of January 1993. MR XABA I took my vehicle and I said he should come along, and we drove to the place. We took a street called Tshabalala Street, which would lead us to Ngaki Street, and as I was about to take my left turn I realised that it was bad. The road or the street was barricaded. MR DRAHT What kind of car were you driving at that particular moment? MR XABA I was using a white Cressida, a four litre. MR DRAHT And were you alone in the vehicle at that time? MR XABA No, there were two of us. MR DRAHT Okay, you can proceed. MR XABA I left the funeral and rushed to where I was being called. It was not quite a distance from where we were, but then one could not see the place from a distance because one had to go through a bend, and as I drove past the bend I could see the three vehicles that were parked there, one of which was facing Polla Park, and there was also these police vehicle on the spot." MR DRAHT Just a moment there, what vehicle did you drive then? MR XABA I was using this old model Cressida, the one that belongs to my brother-in-law. MR DRAHT Okay. MR XABA MR DRAHT Why did you want to know which, why did you want to know where your vehicle were, if you were driving in it? CHAIRPERSON MR DRAHT Okay, you can proceed. MR XABA CHAIRPERSON Now are you in the red Colt now? MR XABA Yes. CHAIRPERSON MR XABA Okay. Thank you. I decided to stop and I alighted from the car, and as I was alighting from the car I did not take any notice of anything. I stood around next to a certain pole and they took, they told, instructed the occupants of the car to get off and out of the vehicle, and they did. And I discovered that they found and discovered guns from some of us, some of the occupants of the car that is, and they went on searching the car. One other soldier came to me and asked if I was with them. I said yes, and he instructed me to lie on the ground and they searched me as well, and they found nothing. MR DRAHT You testified that when you, before you got into the Colt, the people told you that they created trouble. Did they tell you exactly what they did? MR XABA They did not fully explain and elaborate on that issue. There was no time to keep asking questions and to expect of them to furnish explanations. There was no point at that time, especially the situation that was prevailing was not conducive for us to sit, rest, and offer explanations. When, or as soon as they said they had created trouble, I sort of understood as to what it could have been, and there was no time for them to fully explain. MR DRAHT What did you understand it to be? MR XABA MR DRAHT Did they say that they shot an ANC member? MR XABA MR DRAHT Why would you say that your actions were political motivated? MR XABA MR DRAHT You were later on found guilty as an accessory to murder because you drove the vehicle in which the murderers got away from the scene. Is that correct? MR XABA Yes. I assisted he murderers. MR DRAHT And when you assisted them did you know that they were the murderers of a certain person? MR XABA MR DRAHT Did you know the person that was killed that day? MR XABA MR DRAHT Did you later on find out who was it? INTERPRETER Please repeat your question. MR DRAHT Did you later on find out who was killed that day? MR XABA MR DRAHT Thank you Mr Chairperson. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON MR PADI I have no questions to ask. NO QUESTIONS BY MR PADI CHAIRPERSON Mr Claassen, representing an interested party in these particular ones at this stage do you have any questions? MR CLAASSEN NO QUESTIONS BY MR CLAASSEN CHAIRPERSON CROSS-EXAMINATION BY MS LOCKHAT Yes Mr Chairperson, thank you. Mr Xaba, were you a member or a supporter of the IFP? MR XABA I was a member of IFP. MS LOCKHAT A member. A registered member? MR XABA Yes. MS LOCKHAT CHAIRPERSON You mean funeral, you said hearing. MS LOCKHAT Sorry, excuse me, at the funeral. MR XABA Please repeat the last part of your question again. CHAIRPERSON MR XABA MS LOCKHAT You mentioned Mr Mazibuko was the person that told you to swop cars. Is that correct? MR XABA MS LOCKHAT What did he tell you? What was his words when he spoke to you? Did he give you a reason why? MR XABA MS LOCKHAT Did he tell you, you know, that the people in the car had committed an act and you were to help them out and assist them? MR XABA No he did not make mention of that fact, he only said go and drive there. I think he had hoped that they will tell me, they will take responsibility and tell me. MS LOCKHAT You said that you understood that it was a matter of urgency, and that you had to escort the people out by driving the vehicle. Is that correct? MR XABA Yes, that did cross my mind, although I had not, or I did not have a clear understanding as to where it was stemming from. You see when a person tells you that this is the situation and please drive immediately ...(indistinct) and leave the area, I took it that way, but they were not as harsh, if I may say. They were also not forcing me, or exerting any pressure as such, for me to rush, but still I would have done it at any rate. However, they, I, they had this request of me to rush and leave and drive off immediately. I did as they instructed. It did not occur to me that I should immediately now leave the area. MS LOCKHAT So is it correct that your intention was just to drive persons, and just to be a driver in that sense? MR XABA MS LOCKHAT MR XABA MS LOCKHAT CHAIRPERSON MR XABA MS LOCKHAT Thank you. In your affidavit, page 6, at paragraph 20, you said "...I was quite amazed by the fact that I was arrested. I did not know what I had done." Kindly explain that. MR XABA With reference to that then, maybe it would require of me to find out as to which application are you talking about. Could it be the third or second one? So more light could be shed on my search. CHAIRPERSON Perhaps, you signed an affidavit Mr Xaba on the MS LOCKHAT 12th December 1996 CHAIRPERSON MR XABA Yes, it is mine. CHAIRPERSON MR XABA Yes Mr Chairman. CHAIRPERSON Now what Ms Lockhat is asking you is can you explain that. Why did you say that in your affidavit when you now say that, you know you realised that you were assisting people who had done something wrong? MR XABA MS LOCKHAT Thank you Mr Chairperson. No further questions. NO FURTHER QUESTIONS BY MS LOCKHAT CHAIRPERSON Mr Draht do you have any re-examination? RE-EXMAINATION BY MR DRAHT Mr Chairperson, yes please. Mr Xaba, the Chairperson asked if Mr Thabo wants any further questions, because mention was made of his client, Mr Mlaba. To which Mlaba are you referring? MR XABA MR DRAHT Is he a relative of you? MR XABA No, not a relative. MR DRAHT MR XABA MR DRAHT Thank you Mr Chairperson. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON Thank you Mr Draht. Ms Sigodi do you have any questions you would like to put to the witness. ADV SIGODI Just one aspect Chairperson. You say that when you got into the car nobody told you what they had done. Did I hear you correctly? MR XABA Yes. ADV SIGODI And you just thought that something had happened. MR XABA Yes, I thought on my own because I could tell from the situation. ADV SIGODI Now can you look at your affidavit which you made, the second affidavit, which ...(intervention) CHAIRPERSON That the same one? Not the same affidavit? ADV SIGODI No. CHAIRPERSON Just give him the page number. ADV SIGODI On page 8. CHAIRPERSON MR XABA Yes I can read. ADV SIGODI If you look at page 10 of that. MR XABA You mean I should read from the beginning? ADV SIGODI No. MR XABA Which number then? ADV SIGODI What I want to ask, if you look at page 10 of that affidavit, is that your signature on page 10? MR XABA You mean right on top, yes I see it now. ADV SIGODI Now if you look at paragraph 4 of that affidavit, that is on page 8. Have you got that? MR XABA Yes. ADV SIGODI You say that my motor vehicle stalled on the road and Mr Mazibuko came to my assistance. Whilst he was helping me with my car he told me that they shot a member of the ANC and that the police are looking for them. Now, today you tell us that you did not know what they had done. This is something that you thought. Is there any reason why you are concealing this fact from us today? MR XABA ADV SIGODI So what is the true state of that? Which version do you want us to believe? MR XABA ADV SIGODI Thank you Chairperson. CHAIRPERSON Mr Lax do you have any questions. MR LAX Just one question Chairperson. Mr Xaba who wrote this statement for you? This has been typed out. Was it not your lawyers? MR XABA It is true, I think it is the attorney, my attorney rather, who wrote it. MR LAX MR XABA He did come with an interpreter. MR LAX MR XABA MR LAX Thank you Chairperson, no further questions. CHAIRPERSON MR XABA Yes it was empty. There was only this person in front, sitting on the passenger seat in front. CHAIRPERSON Did, do you know Mr Mbatha and Mr Mlaba, your co-applicants? MR XABA CHAIRPERSON Do you know whether any of them can drive, or if anybody else in the car at the time could drive? MR XABA ...(no translation) INTERPRETER The interpreter has a technical problem. I can barely hear the speaker. CHAIRPERSON MR XABA I had no idea at the time as to whether any of them could drive, but as for Mlaba, was not even there, according to my knowledge. Because the people who were in the car, I knew them, I saw them. CHAIRPERSON MR XABA The owner was driving the Colt, to my knowledge, because it did overtake me on the way at some point earlier on, and the driver was the owner and I knew the owner. CHAIRPERSON Was that Mazibuko? MR XABA Yes. CHAIRPERSON And when you saw him driving the car did it have Mr Mbata and the other people you found in the car, in it, at that time when he was driving it? MR XABA INTERPRETER CHAIRPERSON MR XABA Yes, it is so. CHAIRPERSON Well who said that? You said they said that. Were they all reciting it like little children in primary school? MR XABA CHAIRPERSON Mr Draht do you have any questions arising out of questions that have been put by members of the panel? MR DRAHT No Mr Chairperson. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON Mr Padi, Mr Claassen any questions arising? MR CLAASSEN No questions your Honour. NO QUESTIONS BY MR CLAASSEN MR PADI No questions. CHAIRPERSON Ms Lockhat any questions? MS LOCKHAT No questions Mr Chairperson. NO FURTHER QUESTIONS BY MS LOCKHAT CHAIRPERSON Thank you Mr Xaba, that concludes your testimony. You may stand down. WITNESS EXCUSED CHAIRPERSON Mr Draht. MR DRAHT Mr Chairperson are you of the opinion that we must proceed with the rest of the applicants today? CHAIRPERSON This is just relating to this. Do you have any other witnesses to call in respect of this particular incident at the Khumalo funeral? MR DRAHT CHAIRPERSON MR DRAHT That is correct Mr Chairperson. CHAIRPERSON Ms Lockhat? MS LOCKHAT CHAIRPERSON I think on this particular application that we have before us the role played by Mr Xaba was certainly not a direct role, and, in relation to the killing, unfortunate killing of the deceased. If you want a short adjournment just to speak to her before, but it might be more appropriate if she wants, wishes, to say something, if there is another hearing at a later stage in respect, that stage. MS LOCKHAT I shall inform her. CHAIRPERSON But if she wants to, you know we can hear her. MS LOCKHAT I think we should just adjourn then for. CHAIRPERSON COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Ms Lockhat? MS LOCKHAT CHAIRPERSON Thank you Ms Lockhat. Are you in a position to address us. MR DRAHT CHAIRPERSON Thank you. MR DRAHT IN ARGUMENT MS LOCKHAT Excuse me Mr Chairperson. The interpreters are not in the booths yet. CHAIRPERSON Are they ready now? INTERPRETER CHAIRPERSON MR DRAHT CHAIRPERSON Just before you conclude, Mr Draht, so that is on the one requirement, political objective. The other requirement is full disclosure. Do you submit that there has been a full disclosure on the part of your client? MR DRAHT CHAIRPERSON MR DRAHT CHAIRPERSON Ms Lockhat do you have any submission? MS LOCKHAT IN ARGUMENT Chairperson on the facts before us, it is clear that Mr Xaba was not a party to the planning and execution of the killing of Philemon Sekonyana. It seems he was unfortunately a victim of circumstances. He was merely a driver in the incident, and had no intention of furthering the aims and objectives of the IFP. One of the requirements of the granting of amnesty in terms of Section 20(b) is that the act, ommission or offence to which the application relates is an act associated with a political objective committed in the course of the conflict of the past, and it is my submission that Mr Xaba did not do this by political motivations. He was merely assisting, and on the fact presented by Mr Xaba, he was merely the driver and assisting people in getting away from a scene or an incident. The fact that he ...(intervention) ADV SIGODI What do you say about the fact that there was political unrest, there were police and, you know, there was this big funeral and there was all this tension between the ANC and the IFP and that this whole thing arose amidst that political tension, that situation? CHAIRPERSON "... the context in which the act, ommission or offence took place and in particular whether the acts," etc. "...was committed in the course of or as part of a political uprising, disturbance or event." So there, I think what Mr Draht has submitted is that the actions of the applicant were part of a political event mainly, but the funeral was in fact, had turned into a political event, and that his action was part of that event. What would you say to? MS LOCKHAT CHAIRPERSON MS LOCKHAT CHAIRPERSON Mr Draht do you have any reply? MR DRAHT No Mr Chairperson, only that the requested amnesty is granted. CHAIRPERSON MS LOCKHAT Will do Chairperson. CHAIRPERSON COMMITTEE ADJOURNS