amntrans AMNESTY HEARING 1999-02-24 BOKSBURG CIVIC CENTRE 3 A NDLOVU AM 3713/96 ZEVENFONTEIN https://sabctrc.saha.org.za/hearing.php?id=53227&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99022225_bks_990224bk.htm CHAIRPERSON Morning everybody. We are continuing with the applications relating to the Zevenfontein incident, and Mr Draht yesterday indicated that he’ll be commencing today by calling Mr Ndlovu. Is that correct, Mr Draht? MR DRAHT That’s correct Mr Chairperson. A NDLOVU (sworn states) CHAIRPERSON Thank you. Mr Draht? EXAMINATION BY MR DRAHT Mr Ndlovu you are the applicant in this matter, is that correct? MR NDLOVU That is correct. MR DRAHT There is a bundle of papers in front of you. If you look at page 6 thereof, Mr Chairperson I refer you to page 6 of the bundle, is that your signature on that page? MR NDLOVU Yes, that’s my signature. MR DRAHT Mr Ndlovu can you tell me, can you read or write English? MR NDLOVU Yes, I can read and write, but not English. MR DRAHT What is your standard of education? MR NDLOVU Standard 5. MR DRAHT Has somebody read that statement to you after taking it? MR NDLOVU No, they did not read it to me. MR DRAHT Can you remember who took the statement from you? MR NDLOVU If I still remember very well, it was Mr Msizi and Mr Claassen. MR DRAHT On the day that that statement was taken from yourself, did they only take your statement, or was there other people present whose statements was also taken? MR NDLOVU Yes, there were many of us, and some of the people from whom the statement was taken were my co-accused. MR DRAHT Are you satisfied, sorry Mr Chairperson. Mr Ndlovu, I refer you to page ...(inaudible) CHAIRPERSON Thank you Mr Draht, you may continue. MR DRAHT Thank you Mr Chairperson. Mr Ndlovu, on page 2 of the bundle, paragraph 9(a)(iv) you have stated "...on the day the IFP and ANC members were killed." Is that correct? MR NDLOVU Would you please repeat the question. MR DRAHT In your statement paragraph 9(a)(iv) you mention that on the day IFP and ANC members were killed. Is that correct? MR NDLOVU No, I don’t know anything about that. MR DRAHT What is the correct position? MR NDLOVU Only ANC members were injured, not IFP members. MR DRAHT Mr Ndlovu you also mentioned in that statement that you were arrested by the police in the morning after the incident. Is that correct? MR NDLOVU No, that is not the truth. MR DRAHT When were you arrested? MR NDLOVU I was arrested on the very same day of the incident, on Saturday, that was on the 12th in the evening. MR DRAHT Why do you think that this was written wrongly in your statement? MR NDLOVU According to my understanding, this says I was arrested on Sunday morning after the incident, and there is a confusion here because only my two co-accused were arrested the following day, that’s what they wrote in their statement. I think this is how this came into my statement. Had they read the statement to me I would have disputed it. MR DRAHT Thanks. Mr Ndlovu do you belong to a political party? MR NDLOVU That is correct. MR DRAHT What is your, what party? MR NDLOVU The IFP. MR DRAHT What is your position in the party? What was your position in the party at the time of the incident? MR NDLOVU I was a follower. MR DRAHT What is the acts that you committed that you applied for amnesty for? MR NDLOVU I am seeking amnesty in connection with the injury of people in Zevenfontein. As well as my being found in possession of a firearm. MR DRAHT What was the charges that you have been found guilty of? MR NDLOVU I was found guilty of murder and attempted murder, as well as being in possession of a firearm. MR DRAHT And did you plead guilty or not guilty when you were in Court? MR NDLOVU I did not plead guilty. MR DRAHT Why did you plead not guilty? MR NDLOVU It was difficult to plead guilty because all of my co-accused had pleaded not guilty, so that it wasn’t easy for me to plead guilty. MR DRAHT Did you tell? So you didn’t tell the truth when you were in Court. Is that correct? MR NDLOVU That is correct. MR DRAHT Are you willing to tell the truth now? MR NDLOVU Very much so. MR DRAHT Can you please tell us what happened on the day of the incident in Zevenfontein. MR NDLOVU It was on a Saturday, in the afternoon, I cannot be sure what time it was, it could have been around five o’clock. And I was at work on that very day, and when I came back from work I went straight to my shack. And as I was sitting in my shack one IFP member came to me, his name is Joseph Mkhize. He did not knock, he just pushed the door and entered. And when I enquired as to what was happening he just pushed the door and came in, and before he could respond I noticed that he was wearing his jersey right inside my shack. And when I enquired as to what was happening, he informed me, he said to me, that I am sitting here whilst people are dying outside. And when I enquired as to who were fighting, he informed me that the IFP and the ANC were fighting. And I wanted to know the reason thereof, and he said, "...man there’s no time for explanation, I am here, I wanted to put my jersey on, I am fleeing, I’m going to sleep across the Jukskei River." And I then said to him, "...I am not staying behind, I am accompanying you to your girlfriend where you are going to spend your night." I then put on my jacket and locked the door. We then left. And a distance from my shack, at a distance from my shack I saw people, women who were carrying their babies on their backs, hurrying, and I could see where these women were going, and this group of women accumulated as the singing was going on. And as I looked around there is one very big street that was the entry point into our area, and as I cast my eyes towards that point I saw a group of amabuto on that very same street. These people were carrying knopkierries as well as spears. They were chanting, and they were not standing still but they were moving downwards. That is when I got a fright, because I, it now occurred to me that what he was saying is the truth. And we swiftly took the downward direction with the intention of crossing the Jukskei River. We could not cross the river became it was overflowing. We then went back and on our going back we could see the IFP members or group moving upwards. We joined them and they had gone upwards at the time. And after a while we arrived at Brown’s shack, if I’m not mistaken. MR DRAHT Just a moment Mr Ndlovu. Do you know why you walked up the steep? Why were the group walking up the steep? MR NDLOVU As far as my conclusions are concerned their intention was to go and fight. MR DRAHT With whom did they want to go and fight? MR NDLOVU They were to meet the group that was coming from up, moving towards the downward direction. MR DRAHT And who was that group? Who was that group? MR NDLOVU It was the ANC. MR DRAHT And you walked with them? With the IFP people? MR NDLOVU That is correct, I walked up with the IFP group. MR DRAHT And were you armed at that stage? MR NDLOVU I was not armed at that time. MR DRAHT What happened then? You walked up and then what happened? MR NDLOVU We arrived at Brown’s shack, and we heard stones being thrown onto the roof of the shack, and as these stones were being thrown we also at the same time heard a gunshot or gunshots. MR DRAHT Sorry, by whom was the stones thrown? MR NDLOVU These stones came from the direction of the ANC. MR DRAHT And the shots, from which direction did that come? MR NDLOVU The shots as well. MR DRAHT Was it one shot or different shots? MR NDLOVU Several shots were fired. MR DRAHT From the ANC group? MR NDLOVU That is correct. MR DRAHT And what happened then? MR NDLOVU When we heard the throwing of stones as well as the shooting, I heard one voice shouting, ordering that we lie down. Indeed we lied down and some of us against the shack. And the shooting continued, and the throwing of stones did not stop. And we later on heard this very big explosion which was different from the initial gunshots. And when I looked around I saw this ball of green fire directed towards the other group. And this explosion happened again. I tried to look around to establish where it came from, and it transpired that this explosion came from our group. And I ultimately identified the person who was shooting from our direction, from our group rather. MR DRAHT Who was that? MR NDLOVU It was Sithole. MR DRAHT Could you see with what was he firing? MR NDLOVU Even ‘though I could not have seen quite well the type of firearm he was using, yes I could make out that he was shooting. MR DRAHT Was it a long or a short firearm, could you see that? MR NDLOVU It looked like a rifle because he had his hands placed as I demonstrated. MR DRAHT And were you still unarmed at that moment? MR NDLOVU Yes, I was not armed at that time. MR DRAHT Okay, what happened then? MR NDLOVU After having identified Sithole, the group that was in front of us started dispersing and retreating. That is the time when we started moving, and when we started moving from where I was standing, charging forward, there is one person whom I saw lying down. That is when I realised that yes, this is a war. And after having walked past ...(intervention) MR DRAHT If you say that you were charging, were your group charging towards the ANC group? Is that correct? MR NDLOVU That is correct. MR DRAHT Okay, and you saw a person lying on the ground? MR NDLOVU That is correct. MR DRAHT And then? MR NDLOVU When I walked past the person who was lying down, fortunately I happened to pick up a stick from the ground. I think it must have been dropped by one of the people who were fleeing. I took this stick along. That is when I started arming myself. MR DRAHT Yes? CHAIRPERSON I’m sorry, was it a plain stick? Or was it a bolted stick, or a knopkierrie? MR NDLOVU It was not a knopkierrie, it was just a plain stick. CHAIRPERSON Sorry, Mr Draht, just before we move on, before it just slips my mind. You mentioned that you saw Sithole with what you believe was a rifle. Is that the same Mr Sithole who testified yesterday? MR NDLOVU That is correct. MR DRAHT Thank you Mr Chairperson. Mr Ndlovu you can proceed. MR NDLOVU ...(no English interpretation) ADV SIGODI The interpretation is not coming through. INTERPRETER I’m sorry Chairperson. MR NDLOVU We proceeded on and when I looked ahead I saw two people coming towards our direction, and when they came I would say there were two, or some people who were in front of me, and these people met these two people who were coming towards ourselves, and I saw one of them touching himself on the shoulder. And the other one who was in his company took off, and the one who was touching his shoulder was hit. He got injured. ADV SIGODI Sorry, you say he was hit. He was hit by what? MR NDLOVU He was hit by knopkierries and he fell down, and he was also stabbed with spears. MR DRAHT Did you also hit him? MR NDLOVU No, I could not reach him. ADV SIGODI Was it somebody you knew? MR NDLOVU I recognised this person, but later I learnt that it was somebody whom I knew. CHAIRPERSON Who was it? MR NDLOVU It was Alfred Madumane. ADV SIGODI Do you know who stabbed him with a spear? MR NDLOVU No, I could not see. It was actually a group of people, and this group of people were lifting their spears and sticks and knopkierries at the same time. I could not make out. MR DRAHT You can continue Mr Ndlovu. MR NDLOVU We then turned back, and as we were walking down the steep one among our group suggested that we should check out at Skosana’s shebeen to make sure whether there isn’t somebody there. And as we were approaching the shebeen two men came out of the shebeen. One whom I saw quite clearly was carrying something that looked like a briefcase, and this other one fled on seeing us. And the one who was carrying a briefcase had a bad luck. He too was beaten up. MR DRAHT By whom? ADV SIGODI Do you know who he was. MR NDLOVU No, I don’t know him. CHAIRPERSON When you say he was beaten up, was, what do you mean? Was he set upon by your group and assaulted with kerries and sticks? Just tell us what you mean by saying he was beaten up. MR NDLOVU He was beaten up by our group, using sticks and spears. CHAIRPERSON Did you partake in that beating up? MR NDLOVU No, yes, yes I did partake of the beating. CHAIRPERSON That person who was beaten, do you know whether he was killed or not? MR NDLOVU My Lord it is very difficult for me to say he could have survived, because he was stabbed as soon as he fell onto the ground. CHAIRPERSON Yes, thank you. MR DRAHT Thank you Mr Chairperson. Mr Ndlovu, you say that you also beat him. How did you beat him? MR NDLOVU I used the very same stick that I picked up when we went up the steep? MR DRAHT And did you do something else to him also? MR NDLOVU When he fell, I also kicked him. MR DRAHT Okay, and what happened then? MR NDLOVU After that, we went to the sports grounds. That’s where we stood, and it was at the time that we started asking ourselves questions as to what was happening. And that’s when I heard that they saw this group of people attacking them and they too claimed not to know what was happening. And I at the same time saw Joseph Mkhize, who came with something on his hand, in his hand, and on looking at this carefully I noticed that it was a firearm. I called him and I wanted to know from him as to, I actually pointed out to him that I was not aware he’s armed, and I requested to have a look at his firearm, and he handed it over to me. I handled it and it was quite heavy, it was the real thing. MR DRAHT What kind of, what make of firearm was it? Did you see that? MR NDLOVU When I asked him what kind of firearm it is he said it was a 38. MR DRAHT You can continue. MR NDLOVU I handled this firearm and I could make out from the weight that it was the real thing. And I then enquired from him as to whether he fired shots, and he said. "...there is no way I could not have fired," and I gave back the firearm. And at the same time we did not know what was happening or whether these people were coming back to attack us, and we decided that we could not go back to our houses, we would rather wait at the grounds in case they come back. And as we were milling around a Hippo came along. CHAIRPERSON By a Hippo you mean a police vehicle, not a hippo out of the Jukskei River? MR NDLOVU Yes, I am referring to the vehicle used by soldiers. And we saw this army vehicle. It came and it did not occur to us that we should flee or hide. And it was agreed that even if the police can come here we would explain to them that we were being attacked. Yes, the soldiers arrived and they ordered us to lift our hands. And we were ordered to lie down flat on our stomach, and we lied down on the muddy soil and we were searched. After searching us they took us along and they went to the very same vehicle to which I referred as Hippo, and it had it’s light on, just like this light here, and we were made to sit down. And as we were sitting down I would, we would, be made to stand up one after another and taken to the Hippo, and there were people in the Hippo. These people in the Hippo were looking at their heads, and if they shook their heads they would take you to the side, and if they nodded they will take you to another side. And to those to whom heads were shaken, such people were released. MR DRAHT Sorry Mr Ndlovu, do I understand you correctly, and identification parade was held? CHAIRPERSON In a Hippo? MR NDLOVU Yes, they were right inside the Hippo. CHAIRPERSON Let’s call it some sort of pointing out, but it’s not an identification parade. MR DRAHT As it pleases Mr Chair. MR NDLOVU I would not know, I’m just explaining what happened. MR LAX Who was pointing out? Who was nodding their heads and shaking their heads? Who were those people? MR NDLOVU We could not see them as to who they were. But one could make out from outside that there were people inside the Hippo. Because when this one soldier took you to the Hippo he would place you near the light and make you face the light, and he would at the same time look at the person who was sitting inside the Hippo, and from whatever response that came a decision was made as to which side the person would have to be taken. That is what happened. And I was among those who were sent to the side after the head was nodded. And we were rounded up until we were 21. And we were made to sit down yet again and the soldiers came to us with something that looked like bottles, and something that looked like sticks. They looked like ballpoint pens. They gave us these things, and they made us write our names. And after that we went to Morningside travelling in that very same vehicle. That is how I was arrested. MR DRAHT Mr Ndlovu did the police take any tests from your hands? Did they conduct any tests on your hands? MR NDLOVU I think if I still remember very well they did that once we arrived at Morningside police station. MR DRAHT Mr Ndlovu can you remember how many people was in the ANC group on that day? CHAIRPERSON Approximately. MR NDLOVU They could have been 500. MR DRAHT Was it males or females? MR NDLOVU I am referring here to, there were females as well, but not the same number as the males. I indicated earlier on that the females were standing alone on the side and the males were standing in the street, the main street that was the entry point to our area. MR DRAHT And how many people was approximately in the IFP group? MR NDLOVU We could have been 100. MR DRAHT Mr Ndlovu do you regret what happened that day? MR NDLOVU My Lord, I regret quite deeply about what happened on that day. There are things that I can forget but this one is still very far from being forgotten. It really hurt us. MR DRAHT Do you think it is possible that people can live peacefully together in the future even if they are from different political backgrounds? MR NDLOVU Yes, my Lord. I think so. It is also my wish to see us living together even ‘though we belong to different political parties. MR DRAHT Has any political leader in the IFP structure gave instructions to you to commit these acts against the ANC? MR NDLOVU No, there was no instruction to that effect from any leader from Zevenfontein. As I have explained that this is something happened and there was no explanation. Nobody expected such a thing to happen. MR DRAHT But still all the IFP people group together. INTERPRETER Chairperson may the speaker please repeat the question. MR DRAHT But still on that day the IFP people made a group together, without instructions from the leaders? MR NDLOVU Yes, I am certain about that even ‘though I would not have knowledge. Like myself for example, I was a member of the IFP. There is no one leader of mine who ordered that I should go and fight. I only realised and concluded on seeing what was happening that this was war. MR DRAHT Mr Ndlovu, my last question. When we started you said that you were applying for amnesty for hurting people. Are you also applying for amnesty now for the act you were found guilty of? MR NDLOVU That is correct my Lord. MR DRAHT Thank you Mr Chairperson. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON Thank you Mr Draht. Mr Claassen do you have any questions to ask this witness? MR CLAASSEN Thank you Mr Chair I’ve got no questions. NO QUESTIONS BY MR CLAASSEN CHAIRPERSON Mr Cachalia do you have any questions to ask the witness? CROSS-EXAMINATION BY MR CACHALIA Mr Ndlovu, you were with your co-accused at Zonderwater Prison in Cullinan. Is that correct? MR NDLOVU May you please repeat your question. MR CACHALIA Were you with your co-accused ...(intervention) INTERPRETER May the speaker be audible. CHAIRPERSON Mr Cachalia if you just project a little you won’t have to move that very much. MR CACHALIA Mr Ndlovu you were there at Zonderwater Prison in Cullinan together with some of your co-accused. CHAIRPERSON When? What are you referring to? When is this? MR CACHALIA At the time when he made the statement. At the time when you made the application for amnesty. MR NDLOVU Yes I was with them, my co-accused in this case, and some others as well, IFP members that is, who were not my co-accused necessarily, and they had joined us to fill in this application. MR CACHALIA And you say that there was a Mr Msizi and a Mr Claassen. Who is Mr Msizi please? MR NDLOVU He is one IFP member who works at parliament. MR CACHALIA And Mr Claassen? MR NDLOVU He is here. MR CACHALIA That is the attorney Mr D Claassen sitting? CHAIRPERSON He’s actually an advocate, Mr Cachalia. MR CLAASSEN Pardon me, I am an attorney. CHAIRPERSON I beg your pardon. I understood from Nelspruit that you were from the bar. I beg your pardon. MR CLAASSEN No, no I’m actually an attorney. MR CACHALIA Thank you. That is the person that we are referring to, is that right? MR NDLOVU Yes. MR CACHALIA Is the form filled in in his handwriting or Mr Msizi’s handwriting? MR DRAHT Mr Chairperson the witness definitely cannot answer that question. He doesn’t know that. MR LAX How do you know he doesn’t know? Let him say that. CHAIRPERSON Wasn’t he present when it was written? MR NDLOVU With regards to the writing I am not able to tell whether it is Msizi’s or Mr Claassen’s handwriting. I don’t remember quite clearly, but what I know or remember rather is that we were telling Msizi, and Mr Claassen will write. So that I am not sure as to whether it is his handwriting or not. MR CACHALIA Alright perhaps we should just get a little more detail on this and I’m sorry that we need to go into the matter. You were called and you were told that they were going to make an application for your amnesty. Is that correct? MR NDLOVU I was not called at all to be told that I have to apply for amnesty, but what I know is that I was called and when I got there they told me right there that I will be filling the amnesty application form and this is what I should do. MR CACHALIA What was it that you should do please tell me? MR NDLOVU They explained that I would have to apply for amnesty from the TRC Committee, and explain everything that happened at the area where we were residing. And they also told me that I should not lie because the TRC does not take any lies and I had to write the truth and the truth only. MR CACHALIA And did you, was a, was an interpreter present? MR NDLOVU I thought I had explained earlier on that Mr Claassen was together with Mr Msizi. Msizi was the one who was interpreting for us. MR CACHALIA So Mr Msizi acted as an interpreter, and you told him the truth? MR NDLOVU Yes that is true. MR CACHALIA And that is the truth that you presumably have told the Committee today? MR NDLOVU Yes. MR CACHALIA And that was translated and written down. My apologies sir. My apologies. May I just switch it off? (Referring to cell phone). Sorry. You had, just to go back, you say that you had told Mr Msizi what you have told the Committee today and you have presumably been told by Mr Draht what is in your application form. MR NDLOVU Yes. MR CACHALIA Not only is it contradictory but it is completely a defence to the charges that were presented, that were brought against you in the High Court. Is that correct? INTERPRETER Please may you repeat that question. MR CACHALIA Not only are there substantial inaccuracies according to you, but it was, what you have said in your application form, is a defence to the charges that were brought against you in the High Court. MR NDLOVU I don’t follow you. I don’t follow you, what defence? MR LAX Mr Cachalia I don’t follow you either, to be absolutely frank. Maybe you must simplify the question. You’re dealing with a fairly unsophisticated person, and what you’re putting is in essence the conclusion of what would otherwise be a legal argument. MR CACHALIA Mr Ndlovu, you said in this particular application form that they did something on your hands when they arrested you. Is that right? MR NDLOVU Yes that is true. MR CACHALIA That is what was your defence in the case against you when the charges were brought against you in the High Court. MR DRAHT Mr Chairperson that was not his defence is my submission. CHAIRPERSON What my understanding is, and I might be wrong Mr Cachalia, is that this test for the hands, is to establish whether the person had been handling some sort of firearm. So how is that a defence? Because that would have been evidence for the State. Because he said they’d, he said he handled a firearm, he handled this other person’s firearm when they were at the sports ground. Then he said when they were arrested he was taken to Morningside and they tested his hands, so that probably, I don’t know, probably presented evidence that he had had a firearm. Now where is the defence? What? MR CACHALIA May I just make it more clear? MR LAX Mr Cachalia, maybe what might be helpful is if there’s a portion of the judgement where his defence emanates from, read that to him so that it can be crystal clear what you mean and that’s what was said in Court on his behalf or by himself, and then the context of what happened to his hands becomes clearer. MR CACHALIA Sorry, perhaps I am making too many assumptions about has happened in this matter. In your application form Mr Ndlovu you say that the police circulated something in our hands, put it into a bath, and then arrested us. Is that correct? MR NDLOVU Yes, that is so. MR CACHALIA And that particular statement was made to contradict the evidence of the State that they had tested your hands and found that you had handled a firearm. MR NDLOVU I don’t know about that. CHAIRPERSON Mr Ndlovu, perhaps if I could just read it to him Mr Cachalia. I’m referring to pages two and three in particular, the bottom of page two, the very last word over to page three, they, that is the police. This is what you say, or what is said in your application form. You’ve explained it wasn’t read back to you, but this is what is contained in the form "...they, that is the police, then wanted a gun from me. They searched my shack but couldn’t find anything. They took me out to some IFP supporter whom he ordered me to sit down with. When we sat there a policeman who identified us, the police circulated something in our hands, put it into a bottle and then arrested us." What you’re saying is, here, what is said in your form, is that the police said they want a gun from you, searched your house, didn’t find anything, made you sit down with other people, circulated something in your hands, put it into a bottle, and then arrested you. Now what is meant by that? MR NDLOVU Yes that is true as stated, but the only minor mistake that I heard is the one of the house, searching the house. No, the police did not get as far as my shack. I was only, I only added at the ground, I never went back to the house. The next thing they arrested us. CHAIRPERSON Mr Cachalia I can recall in his evidence-in-chief he spoke about, and I found it a bit strange at the time he mentioned it, that they came with this bottle in which appeared to be a ballpoint pen and they were asked to write their names. So I don’t know if this, something "...circulated something in our hands, put it into a bottle" if that’s the ballpoint pen rather than a gun. MR CACHALIA Mr Ndlovu perhaps you can help us clear it up. What did they circulate in your hand? MR NDLOVU I have no idea of that thing. It was the first time I encountered such a thing. I never had seen it before. Or it was never administered to me before. MR CACHALIA Was something administered on your hand are you saying? Sorry I’m not understanding your answer please sir. MR NDLOVU Yes. It was my first time seeing that done to me. Even to other I’ve never seen it or experienced it. MR CACHALIA This was at the ground? MR NDLOVU We had just left the ground. Not too far away from the ground. Nearby. MR LAX Just before you go on Mr Cachalia, he hasn’t actually answered your question, your first question. Mr Ndlovu, we weren’t there. We want you to try and help us. The question was, was something administered to your hand? You said this was the first time it had happened to you. That was your answer. Did they put a liquid on your hand? What did they do? We weren’t there. We want you to explain to us please. MR NDLOVU No then I’m with you. That thing looked like a ballpen as I explained earlier on, they took it out from the glass, and that ballpen was almost purple in colour. And they will circulate it around my fingers and on my hand. I don’t quite remember ‘though if there was something like a bandage that they first put on the hand, and then after they circulated this item. And they took it back to the bottle and closed that in, and they asked us our names and we told them our names. And as I was circulating that thing on the hand they kept dipping the thing in the bottle, that’s where they will write your name and your surname, as soon as you told them. CHAIRPERSON Sounds like some sort of ultra violet type thing like they used in the last elections. Put on your hand and you put it ...(inaudible) MR CACHALIA Mr Ndlovu, ...(intervention) MR LAX Just hold on one second Mr Cachalia. CHAIRPERSON Apparently it’s a method that’s used for laboratory testing to test for traces of whatever there might be on a person’s hand. They get a bandage and you are meant to hold the bandage, which is soaked with this liquid. Or your hands get coated with the liquid and you hold the bandage and the bandage is then sent away to the labs for testing to see what may be on the hand. But that we can’t accept as evidence, but it might be something of that nature, that testing that was taking place. MR CACHALIA Thank you Chair, I think it might be very helpful because we seem to be quite in the dark as to what in fact happened. Mr Ndlovu, what you’re saying is that before you had reached Morningside police station, after you were arrested at the soccer ground you were taken away before you reached there this was done. Where was this done? MR NDLOVU This was done in the area Zevenfontein. MR CACHALIA Alright now, when you were in Court, when the charges were brought against you, what did you say, where did the traces of gunpowder come from? MR NDLOVU I was also confused because I did not know where that was from. MR CACHALIA Did you give evidence in your defence in your case in the High Court? MR NDLOVU Yes. MR CACHALIA And did they put to you the question about the gunpowder on your hand? The traces of you having handled a firearm, was that put to you in the case in the High Court? MR NDLOVU No, I’m mistaken there. When I heard this gunpowder story on my hands, that was told or relayed to me by my attorney, when he told me that they found traces of the gunpowder on my hands. I heard of that. MR CACHALIA And what was your instruction to your attorney, where did that gunpowder come from? At that time, not today. MR NDLOVU It was difficult for me to say to my attorney that I did hold that firearm. CHAIRPERSON Did you deny that you had held a firearm? MR NDLOVU Yes, I denied. MR CACHALIA And if you denied that you had a firearm you must have given an explanation about where the tests proved that you had handled a firearm came from. You must have told your attorney about that. MR NDLOVU He never canvassed the matter any further after I denied it. MR CACHALIA And it was canvassed in the High Court also, when you gave evidence. MR NDLOVU No, no I was not questioned to that effect. MR CACHALIA What you are saying Mr Ndlovu is that you stand by the information that you gave here, that there was this particular position about something in a bottle which was passed over your hand. You stand by that particular position? MR NDLOVU Yes. MR CACHALIA And you say now that the only mistake you made was you said, ...(intervention) CHAIRPERSON That the shack wasn’t searched. MR CACHALIA That your shack wasn’t searched. Is that correct? MR NDLOVU Yes. MR CACHALIA The balance of that paragraph that was read to you previously, that is correct? That was read to you previously in your evidence-in-chief. MR NDLOVU If I’m not mistaken I think that is so. I don’t know, maybe there could be other mistakes as well. MR CACHALIA Perhaps, perhaps just for absolute clarity’s sake, I’m sorry it’s taking some time, on the day IFP and ANC members were killed. Correct or incorrect? MR NDLOVU Please may you repeat. MR LAX He’s already said that’s a mistake, that both died. We don’t have to repeat it again. He said that in his evidence-in-chief, right at the beginning. MR CACHALIA That is correct that you had said that in evidence-in-chief. Then you go on to say there were gunfights during the night. MR NDLOVU You mean at night? It was not during the night, it was late in the afternoon or in the afternoon. The shooting that transpired. MR CACHALIA The next item you’ve already dealt with. You said that the police after they arrested you wanted a gun from you. Is that incorrect or correct? MR LAX Well hang on a second. We haven’t said anything about the police arriving at his house or not. Did the police arrive at your house and ask you whether you were a Zulu? MR NDLOVU No, they did not arrive. MR LAX So that’s also wrong. MR NDLOVU Yes, that is also wrong. MR LAX And they never asked you if you wanted a gun, if you had a gun? MR NDLOVU No, they did not ask me that. My story ends at the ground. MR LAX Yes just answer the questions and listen carefully. Carry on Mr Cachalia. MR CACHALIA What you are saying Mr Ndlovu is that there is a portion of this particular paragraph, the one that we’ve dealt with previously that is correct and the balance of it is incorrect. Is that right? Alright perhaps it’s just summarising what you said, we don’t I don’t need you to answer that. You then go on on page four and you tell us what was the reason of the conflict, in terms of according to your belief the IFP decided not to partake in the elections, that was a correct position is that right? MR NDLOVU That much I don’t know. MR CACHALIA Did the IFP at that stage in 1994 ...(intervention) MR LAX Just read him. We don’t know if he’s heard this section before, so it might be better Mr Cachalia to avoid putting something to him without him having heard it and then him denying it later. Just read him briefly what’s said here and ask him if he still stands by it. MR CACHALIA Yes Mr Lax I’ve got no problem I’m just trying to hurry the process because we’ve got such we’re constrained by time, but I’ll read that to you and it might be a better we might save time in the end. You say on page 4 in paragraph B "...the reason for the conflict to my belief was that in 1994 the IFP decided not to partake in the election. That would have irritated the ANC and as a result of that the ANC started waging a war against the IFP. I wish to apply for amnesty because I was a victim of the ANC. I was a builder. I lost all my property and I have nothing left." Perhaps we should stop there and just we’ll carry there’s a balance of this portion I’ll read to you later. Up to now is what you’re saying there is it correct, is that what you told Mr Msizi who told Mr Claassen? MR NDLOVU What you just read to me is some part of it I don’t know, it’s strange. MR CACHALIA Are you a builder, sir? MR NDLOVU Yes, that’s my work. That’s what I do. MR CACHALIA Did you lose your property and everything there in Zevenfontein, or did you lose your property, you had nothing left it doesn’t say Zevenfontein so I don’t want to put anything in your MR NDLOVU As to the property, on that day of that incident when I was arrested it is true, I had lost property and I recovered none. Especially after I was out on bail I discovered that I’d lost my property. MR CACHALIA Did, did the IFP decide not to partake in the elections in 1994, as at February 1994 when this incident took place? MR NDLOVU That much I don’t know. MR CACHALIA So excepting for that particular portion there the other the balance of it is correct is that right? The balance in the sense of your building and your property that we’ve dealt with. MR NDLOVU Yes, that much is true. I was a builder and my property was lost. MR CACHALIA I also - you go on to say "I also want amnesty because it was a war and people died on both side. I am also a victim because I am a member of the IFP. I was attacked by the ANC who attacked members of the IFP. People were arrested on both sides." MR NDLOVU That is new. I don’t know that. MR CACHALIA So the major portion of this particular paragraph you deny excepting for the question of property we’ve established that and excepting for the question of your, of you occupation. CHAIRPERSON I don’t think he denies it, he just said he doesn’t, this is not from him. It doesn’t emanate from him. MR LAX What he says is he doesn’t know that. In other words the implications being that he never said those things. Is that right Mr Ndlovu? MR NDLOVU Yes, that is right. MR CACHALIA Thank you Mr Ndlovu what I’m saying is that what you are suggesting to us is that you didn’t say that to Mr Msizi although it is in your statement. Some portion of it must have come from you and the others they must have added on. Is that right? MR NDLOVU Yes. Some portion of it I did say but some portion of it I did not say. And it surprises me as to where all of that emanates from, especially that I said there were members of IFP were killed or died, and from the ANC side as well there were members who were arrested. That is new. MR CACHALIA Now Mr Ndlovu, on the 28th of November 1996 when you made this statement you took an oath, you swore that what you are saying in this statement is the truth, that you knew and understood what was being said. Do you acknowledge that? MR NDLOVU Yes. MR CACHALIA Now why did you take an oath and swear that it was the truth when in facet now you are saying that you didn’t know what was written in there? MR NDLOVU It is because, the problem that I see that exists here, is the fact that the statement was never read back to me. If that statement was read back to me, I know I would have rectified the mistakes where they were, as you have just said to me. It’s completely new. So it goes without saying that statement was taken without being read back to me. As a result it’s completely new as you are reading back to me today. ADV SIGODI Didn’t your attorney read this back to you today before consultation? MR NDLOVU He read as far as the ANC members. He only read about the IFP members who sustained injuries and died. I was also surprised to hear that much, because I know nothing of that. ADV SIGODI In other words you are telling us that he never read the whole affidavit back to you whilst you were consulting? MR NDLOVU Yes, I would agree with you. MR CACHALIA I want to say to you that that is improbable Mr Ndlovu. MR LAX Isn’t that a matter for argument? MR CACHALIA It is a matter for argument sir. MR LAX The question’s been put to him, he’s answered it. You can then rely on his answer and argue the probabilities later. MR CACHALIA Mr Ndlovu, do you remember who it is that took your, or who was the Commissioner of Oaths on that particular day, do you remember? MR NDLOVU I don’t understand now about that. Can you explain a bit? CHAIRPERSON What we’re trying to get at Mr Cachalia, we’ve got there, we know that it’s stamped the Hoof van die Gevangenis, Zonderwater, Cullinan, are you disputing that that person ? MR CACHALIA No ...(inaudible) CHAIRPERSON So. Well for what, what do we need to know that for? If he can remember who it was or not? I mean. MR CACHALIA ...(inaudible) CHAIRPERSON Right, well go ahead. INTERPRETER The speaker’s microphone is not on. MR CACHALIA My apologies. Mr Ndlovu, I’ve put this before to you and I want to be quite certain that that was your answer. You said that the deponent, the paragraph at page 7 says that you had acknowledged that you know and understand the contents of this affidavit. Why did you acknowledge that, why didn’t you say I haven’t had it read back to me, I don’t know what is in it, I want it read back to me? MR NDLOVU I think if my memory serves me right, on that day we were filling the application form, it was late, and the attorneys arrived late in the first place, and we were quite a number of us, many, were going to fill up the application form. So that now in retrospect I realise that some of the mistakes were as a result of the communication, and some part would have been said by co-accused, because they were arrested the following day, yet I was arrested on Saturday, so when I looked ...(indistinct) I realised there were many mistakes, and those statements, or rather the form, was not read back to us, we were only furnished them with information and they made us, or instructed us to sign, and if that statement was read back to me I know I would have rectified the mistakes earlier than now. MR CACHALIA Mr Ndlovu. I want to put to you that that is the statement that you have made and that at that stage it was what you intended to convey, and that Mr Msizi nor Mr Claassen had any reason to put anything else but what you told them. Do you wish to make a comment about that? MR NDLOVU I don’t disagree with you in that regard, it’s only the mistakes that I have a problem with or I dispute. MR CACHALIA Alright let’s go just to the incident itself. You say you were sitting in the shack when Joseph Mkhize came in wanting to change his clothing and he was in a hurry and that was at about five o’clock. Is that correct? MR NDLOVU Yes. MR CACHALIA He said he had no time to explain to you and you then decided that you are also, he said that there are people who are dying. MR NDLOVU Yes. He did not say people are dying, he said there is a fight outside. People are fighting outside. MR CACHALIA Mr Ndlovu I don’t want to go back to this whole process, I have clearly written here you said while he was sitting there people were dying outside and please I am saying that is what you have said in fact. MR NDLOVU If I said that, that people are dying outside I don’t think it was properly said. I said the ANC and IFP, or these groups, are fighting. MR LAX You said both those things, Mr Ndlovu. You said that Mkhize said to you, "...why are you sitting here while people are dying outside?" And then you said that he then said that the ANC and the IFP were fighting. When you asked him to explain what they were fighting about he said there’s no time for explanations. MR NDLOVU Well I agree. MR CACHALIA We’ll just note that that is not what you intended to convey, that is wrong. I will then proceed. MR NDLOVU No, I still stand by that. MR CACHALIA I will in any event proceed. Mr Ndlovu when you came to, please tell me where is your shack precisely in relation to Magwaza’s house and the sports field and Brown’s house. MR NDLOVU My house was way upward, it was not downward towards Magwaza’s and Brown’s houses. You would have to go past Brown’s house and go towards the upper direction. MR CACHALIA Past Satywyte Street S A T Y W Y T E. MR NDLOVU May the speaker repeat what he has just said. MR CACHALIA When I went for an inspection there were streets name such Satywyte, Dastile and others going upwards. Is it past those places are you saying? MR NDLOVU No, I don’t know if there are street names now, because in prison that could have been the latest development. MR CACHALIA May I just establish is it near Mr Mlauza's shebeen. MR NDLOVU Mr Mlauza is quite a distance from my house. MR CACHALIA Perhaps I should just proceed. Mr Ndlovu when you came to your home from work on that day, you have not told us about anything that you might have noticed, that was unusual when you were returning home from work at about five o’clock that afternoon. MR NDLOVU Yes. MR CACHALIA And as you arrived at home very soon thereafter Joseph Mkhize, a member of the IFP arrived, and the incident that we’ve just discussed took place. Is that right? MR NDLOVU Yes. MR CACHALIA Was it just a few minutes after you had arrived? MR NDLOVU When I arrived from work, I arrived at about past three. Since it was raining that day and the conditions as well, I did not notice the condition as well, as I was tired coming back from work that particular day on Saturday. I got home and relaxed on my bed. MR CACHALIA I’m sorry if I have made a mistake Mr Ndlovu. I had assumed that what you have said is that you had arrived at about five o’clock that afternoon. Am I mistaken about that? MR NDLOVU Yes, it is so, because when I was explaining I did not explain as to whether I was coming from work at the time Mkhize arrived. MR LAX Sorry Mr Ndlovu, you did say you arrived at about five. That was your clear evidence-in-chief. Just for the record I’d place that on. Carry on Mr Cachalia. MR CACHALIA Thank you Mr Lax. Do you wish to make a comment about that now sir. MR NDLOVU No I don’t dispute any of that. Really because I did not take notice, or I did not, I could not furnish the Court about the details pertaining to time, but I know for a fact that I had some time to relax at home. I did not arrive and suddenly Joseph arrived. In other words I arrived and for some time I relaxed on my bed, then he arrived, Mkhize that is. MR CACHALIA How long after that? MR NDLOVU After what? MR CACHALIA How long after you arrived at home die Mkhize arrive at your home and push the door open and walk in? MR NDLOVU I think I relaxed for about 45 minutes to 60 minutes. MR CACHALIA Relaxed for about 45 or 60 minutes. When you arrived at home was there any disturbances in Zevenfontein on your way to your shack? MR NDLOVU No, I did not notice anything. We were just walking freely from the taxi ranks, and I walked back home without noticing anything. It would have been also difficult for me to notice because it was raining that day for starters, and even if you wanted to look around or into something you would not be in a position to do that since the weather was not gorgeous, or it was raining. MR CACHALIA You did say you noticed a group of amabuto, when you arrived at home. MR LAX He said that was after he left with Mkhize. MR CACHALIA My apologies. You had noticed nothing and you stayed in your home for 45 to 60 minutes and thereafter Mkhize came, and you then saw some amabuto. Please the reason why I ask the question is, I didn’t know what amabuto is. Can you explain to me what is amabuto please. MR NDLOVU That will be a Zulu. Wait, when you see a group of men together, quite a big group, more than 50 so to speak, that will be amabuto in Zulu. MR CACHALIA Thank you. Now, just to clarify this position. Your attorney talked about going up the steps and so on. There are no steps in Zevenfontein that you go up on. CHAIRPERSON I think that came from the interpretation. They are talking about the steep, the hill. MR CACHALIA Thank you very much I just thought I’d clarify that. You are saying that you and Mr Mkhize then, from your shack, went towards the river. CHAIRPERSON Sorry, are we going to go through his whole evidence-in-chief again? Because we’ve heard it. We don’t need him to confirm everything he said Mr Cachalia. We need to finish this application. You can ask him questions but I don’t think you need to take his notes and just get him to confirm his whole evidence-in-chief, it’s a waste of time as far as we’re concerned. MR CACHALIA Quite clearly that is the position Chair, but I just want to put him in the context that he understands what we’re dealing with. In any event Mr Ndlovu, you said that you went down and you then came up, I want to put it to you why did you come up from the river again and why didn’t you go along the river in one or the other direction and avoid the whole, as you put it, incident? MR NDLOVU The way things were happening, they were happening so fast and abrupt, and these things were happening quite spontaneously at the same time. I think this happened in about 30 minutes time. This is because of the situation that prevailed at that particular time. So that to go astray was not easy, was quite difficult. MR CACHALIA Are you suggesting that because of the hurry you didn’t take the obvious route, this away from where the trouble was, was towards the trouble? I just want to assist Mr Ndlovu. You clearly could not cross the river because it was flowing very heavily, so the options that were available is to go up the steep hill as you call it or go along the river in either direction and you didn’t choose the alternate but you chose to go back to where the trouble was. MR NDLOVU I don’t know how to put this. As I said and explained earlier on that there was no any other way to prevent this. We are facing death itself. There was no any other alternative route away. It was death and shock. When you are in that state you cannot reason well and normal MR CACHALIA The death that was facing you was from the people that were bearing down on you when you were near the river. Is that what you’re saying? MR NDLOVU The death was coming from the way up, and as well as to ... we were either faced by going across the river, as I already said that it was overflowing, that was death. And we decided to choose between the two devils, either that or the one that was facing us from the opposite direction, and decided to go the other way. MR CACHALIA May I just put to you this question? Brown’s house is, between Brown’s house and the soccer field is where the shooting took place where people died. Is that correct? MR NDLOVU Yes, that is true. MR CACHALIA Now you had run from your shack towards the river. Is that right? MR NDLOVU Yes. MR CACHALIA And when you then saw people bearing down on you and you feared for your life. Is that right? CHAIRPERSON I don’t, he didn’t say he saw people bearing, he said they went down to the river, they couldn’t cross the river. They went to the river because they saw amabuto, they saw these ladies with babies all moving, there was obviously something going on. Let’s get out of here, they went down the river, they couldn’t cross the river. And then they saw a group of IFP people going up the hill and they joined them. He didn’t say they saw them bearing down on them and they were sort of running to escape immediate death. Not at that stage. MR CACHALIA As the Chairperson, states there. I can leave it on that particular position. You joined the group of people and you went to the soccer field where it happened. Was ANC group at the soccer, on the other side of the soccer field? MR NDLOVU If I think well here, the stadium is on the side, just towards the side. And right on the bottom there will be Mr Brown’s shack. But we went as far as Mr Brown’s shack, we did not go beyond that point at that time when they started stoning us. MR CACHALIA And firing shots at you? MR NDLOVU Yes. MR CACHALIA Did you see any handguns, any guns in the possession of the ANC supporters? MR NDLOVU No I would be lying, I did not see any firearms or guns. MR CACHALIA And you said there were several shots being fired at you and stones being thrown at towards you? MR NDLOVU Yes. ADV SIGODI Sorry Mr Cachalia, is it in dispute that there was this attack to the ANC and the IFP and the whole way in which it occurred, and that there was stoning and gunshots, is that in dispute? MR CACHALIA It certainly is. ADV SIGODI Then why don’t you just put it to the witness? MR CACHALIA Thank you ma’am. Mr Ndlovu, I am saying that the witnesses will say that none of the ANC members had any guns, they were not armed, and they did not commence any war, as you put it. What do you say to that sir? MR NDLOVU That is, that will be very confusing, or I will not quite understand that if they will contradict what I said, because I just told you and explained to you about the situation that prevailed and things that were happening, and what transpired at the time, and I know nothing else except what I told you. MR CACHALIA Yes sir, alright, the final question and I’ll argue the probabilities later is that I’ve put this to Mr Sithole as you had heard yesterday and I’m putting it to you, that large number of people died and were injured and were all members of the ANC and none of the IFP members were injured or died. Is that correct? MR NDLOVU Yes, that is correct. Not even one person from our side died, but as far as the injury or the injuries are concerned, it’s not true that some of the IFP never sustained injuries. There were people who sustained some injuries as a result of them throwing stones at us, but not one of us got shot. Some were hurt, sustained injuries on their heads, I saw them at Morningside. MR CACHALIA Who were these people please? Because yesterday we were told that none of them were injured. None of the IFP people were injured. Who did you see at Morningside that was injured sir? MR NDLOVU I would like to apologise on behalf of the person who, the person who, tendered evidence yesterday here. I was arrested on Saturday. As I said that some sustained injuries that will be Chezi, Visiline Zwane, as well as Nomiya. Others I don’t remember but I think there were than, if I think well I will say there were more than seven who sustained injuries resulting from the stone that were thrown. MR CACHALIA And you say none of them were shot? MR NDLOVU Unfortunately we were not shot. CHAIRPERSON I think you mean fortunately. INTERPRETER Yes. MR CACHALIA Mr Ndlovu I am going to argue and if you wish to make a comment please make a comment I’m going to argue that it is improbable that any of the ANC people had guns because if they shot at you at least if people were not killed people would have bullet wounds and that injuries have not been established at this hearing or any other hearing. Do you want to make a comment about that? MR NDLOVU The ANC people are our fellow brothers. The situation of that kind, I think it was the first, and would like to assume will be the last one. I would not therefore apply for amnesty with regard to that incident yet I will come here and lie. I lied good enough at the Court of law, but here I am here to tell the truth. I will not give this Commission evidence that is not true. MR LAX Mr Ndlovu just, if you’ll allow me Mr Cachalia before you move too far away. Did I understand you correctly that you said Sithole made a mistake because you were arrested on the Saturday, he probably wasn’t. Is that what you were saying. MR NDLOVU With regard to Sithole’s mistake, I thought I explained that, although I don’t quite remember what was the question that was posed to me. MR LAX The mistake was about people being injured. You said, you saw them at Morningside, because you were arrested on that day, and he made a mistake, and the implication seems to be that he wasn’t arrested on that day. Did I understand you correctly? Therefore he never saw the injured people. MR NDLOVU Alight, yes that is true. Sithole was not arrested on that day of the incident. He was arrested the following day. And even that day still, when he was arrested, he did not meet with us at Morningside, for him to see the rest of other people, especially those who sustained injuries, the one’s I’m referring to now. MR LAX Just for the record he told us he was arrested that night, at the place where they were waiting. He said they went into someone’s shack and they were waiting there until the police came and they were arrest. MR NDLOVU What I know, at, when we were there at Morningside, the people I was with, Sithole was not there. He was not at Morningside. MR CACHALIA I’m not going to take that matter further Mr Ndlovu. I’ll argue that position about your evidence in this regard. I just want to put to you the final question Mr Ndlovu. You say no leader of the ANC or nobody of the ANC structure gave you an instruction to behave in the manner that you have behaved ...(intervention) MR LAX IFP Mr Cachalia. MR CACHALIA My apologies. IFP, sorry Mr Ndlovu, no leader of the IFP gave you instructions to do what you had in fact done on that particular day. Is that correct? MR NDLOVU Yes, that is correct. MR CACHALIA Now I am suggesting to you that there was no reason for you, that there was no political objective that you were intending to achieve in going to fight, when there was no instruction given to you. MR NDLOVU As I explained that I am the follower of IFP. I know that not even one of the leaders had instructed us to fight, but as the situation presented itself we now had to survive. This was between IFP group and ANC group in that area. MR CACHALIA Then I just put the question in another way. You were, you were fearful that you were going to be hurt or injured or you would die if you didn’t defend yourself from an attack on you. Is that correct? MR NDLOVU Yes, that is correct. MR CACHALIA And there was no, only thing that you did was in self-defence. MR NDLOVU Yes, that is true. MR CACHALIA Now when you killed this gentleman, when you partook in the killing of, or possible killing of this gentleman near the shebeen, the fellow with the briefcase, what was the self-defence there, sir? MR NDLOVU As I said, that when you are in a state of shock you’ll find yourself doing just about anything that is unreasonable or embarrassing because of the shock, and you could even die as a result of shock, because your brain, your mind, will not be functional. MR CACHALIA Then we will accept Mr Ndlovu that the, that your actions that day was clearly in a state of shock in a, in the mistaken belief that you were defending yourself. Is that correct? MR NDLOVU Yes, it is true, we were in a state of shock. We were shocked because the people we were fighting with were not our enemies as such. We were struggling together in the area together with them. Now I believe that as that Zevenfontein area is full of shacks, and as a result of that, that shows that we are struggling, economically we are not, we are struggling. And we were together in the struggle. And this happened unexpectedly. ADV SIGODI Mr Cachalia is it in dispute that there was an ANC IFP attack? That there was this political uprising? MR CACHALIA It is in dispute. That is in dispute. Most certainly is. I don’t wish to go through Mr Ndlovu in respect of what I have put to Mr Sithole about the meeting that was arranged, the purpose of the meeting, what happened about the ...(intervention) CHAIRPERSON He hasn’t mentioned it in his, otherwise we’ll never finish this. MR CACHALIA Sorry, I’m just saying I’m not going to put the whole case of the witnesses or the victims in this particular matter, he hasn’t said so, I’m saying that Mr Ndlovu, I’m saying that there was essentially, there was malice on your part when you joined a group of people and attacked these people and there was no political objective and you’ve already commented on that, I don’t think you need to comment again, so I have no further questions. NO FURTHER QUESTIONS BY MR CACHALIA CHAIRPERSON Thank you Mr Cachalia. Ms Lockhat do you have any questions. MS LOCKHAT No questions, Chairperson. NO QUESTIONS BY MS LOCKHAT CHAIRPERSON Mr Draht, any re-examination? RE-EXAMINATION BY MR DRAHT Only shortly Mr Chairperson. Mr Ndlovu, were you under the impression that a person on the ground, the one that you kicked and beaten, was an ANC member? MR NDLOVU Yes, that is true. MR DRAHT Only another thing then, Mr Cachalia earlier said that you agree, and he didn’t take it further, that was after Mr Lax said that in your evidence in head you said, that Mr Mkhize told you that, "...you are sitting here while people are dying." and the IFP and ANC were fighting. Was this correct? MR NDLOVU So this was what you were referring to after Mr Chacalia asked you a question. MR CACHALIA My apologies I was born with the name, I’m not able to change it, so it is Cachalia. MR DRAHT I have the same problem. So this was the correct version, Mr Ndlovu, your evidence in there? MR NDLOVU You mean about what I said? MR DRAHT Yes, that he said people, that Mr Mkhize said that "...why are you sitting here while people are dying?" And "...the IFP and the ANC are fighting." MR NDLOVU Yes. MR DRAHT That will be all Mr Chairperson. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON Thank you. Advocate Sigodi do you have any questions. ADV SIGODI Just one aspect that I want to clarify. What method did you use to identify IFP people, IFP leaders? MR NDLOVU ...(not translated) ADV SIGODI What would you use to identify as an IFP supporter or as an IFP person? MR NDLOVU That was quite easy. As we were coming for Jukskei River, going towards upward, there was an IFP office. There were people there. As we were approaching we saw people there and we could tell that that is Inkatha going the other direction. It was very easy for us to identify them. ADV SIGODI How did you identify them? MR NDLOVU As I have said, there was an office there. IFP office that is, which was located there, downward. As I said that, as they were going towards the upper direction they were coming from that IFP office. ADV SIGODI If you met somebody who was not coming from that office, how would you know if that person was IFP? MR NDLOVU You mean? ADV SIGODI If you met somebody who was not, who was coming from another direction, not from the direction of the office, how would you identify that person as being IFP supporter or member? MR NDLOVU You see my eyes focus on them, not on other people coming from sideways. I focused my eyes on the IFP office. As for the people who were coming from other direction, I did not bother about them. CHAIRPERSON Mr Ndlovu, if a person’s coming out of a shebeen, how do you know if he’s IFP or ANC? MR NDLOVU You mean if a person would be coming from the shebeen? As I explained that things were happened so abruptly and we were in a state of shock. I wouldn’t have taken notice of such things as I have already explained that as soon as I saw IFP going towards the upper direction I did not notice about other things. ADV SIGODI I will ask you for the last time. I am saying to you, if you meet a person walking, simply walking, not in your group, how would you identify that person, or tell that person is an IFP or ANC? MR NDLOVU From my knowledge I knew IFP people and others who belonged to ANC. I knew them as well because we were in the same residential area. It will be an outsider that I will not know, but it will be easier if, it will be very easy as well for me to identify an outsider in the area because we all know one another, so a stranger or a visitor I could also tell. ADV SIGODI The person who came out of the shebeen, did you know him? MR NDLOVU That person at the shebeen I did not know. ADV SIGODI Can you say if he was an outsider or if he was a resident in that area? MR NDLOVU I would say that that was an outsider, because we will have outsiders coming to our area as well, to drink. ADV SIGODI In other words when you assaulted him you did not know whether or not he was an ANC or an IFP supporter? MR NDLOVU What led, as we did that we did not know, and the reason why we assaulted him even ‘though he was not a resident there, what way he missed it was when he fled. He ran away. Maybe if he did not we would not have assaulted him but he started running away. CHAIRPERSON Which you also had tried to do earlier in the day. MR NDLOVU You mean assaulting a person? CHAIRPERSON No, running away. You tried to run away but you couldn’t because the river was full. Now you kill a man because he tries to run away. MR NDLOVU Yes, I was also running away to escape this whole thing and run away from this whole incident. ADV SIGODI Just one, the last aspect. How many times did you hit him? MR NDLOVU No I would not be able to remember. I know I hit him and again, again, but I don’t know as to how many times I hit him. ADV SIGODI Do you remember who stabbed him with a spear? MR NDLOVU My Lord it will be difficult for me to say as to who stabbed him with a spear because when we were assaulting him the sticks and he fell immediately, I don’t think it was a spear. I don’t think it was only a spear. I could not also tell as to who stabbed. ADV SIGODI Do you know any people in that group, when this assault took place? MR NDLOVU You mean my group? ADV SIGODI Yes, the people who were with you when this assault took place on that person from the shebeen. MR NDLOVU Yes. ADV SIGODI Who were those? MR NDLOVU It was Bongi Zwane, myself, Umnomiya, and Ijimani. I don’t remember the others. ADV SIGODI Thank you Chairperson. CHAIRPERSON Mr Lax? MR LAX Thanks Chair, just one thing to follow up. The man who came out of the shebeen, clearly was not somebody who had been part of the attack on you. Is that not correct? MR NDLOVU I wouldn’t know, because where this whole thing happened, at the ground that is, it’s not too far away from the shebeen. MR LAX But you said all the others fled. CHAIRPERSON And also the likelihood of an attacker carrying a briefcase? MR NDLOVU We did not know in, whether that briefcase of his had weapons or what. But what sparked this whole thing, as soon as they heard that the people were approaching the shack they therefore ran away. That led to their, to this, and if only they did not run away, maybe came and explained themselves to us, and also brought to our attention the fact that they were not part of this whole thing, or of whatever problem, we couldn’t maybe have attacked the person. But the reason why we had to do what we did was because he then attempted to run away. MR LAX Isn’t it so Mr Ndlovu that you weren’t really in the mood to listen to any explanations from anybody. You were in a state of shock, you were attacking, you weren’t interested in explanations from anybody. You just wanted to kill at that stage. MR NDLOVU Yes that is true. We were in a state of shock as I said earlier on and when you are in that state you can not do anything right, you will end up doing wrong things as a result of being shocked. That is very true. MR LAX You see, the reason why I’m saying this to you, is, it’s clear from your evidence why you went up the hill rather than try to run away to another place. You said you joined the IFP group because you were going to attack. That was in your evidence-in-chief. Isn’t that so? MR NDLOVU No, about attack no, no. We wouldn’t have attacked. But there was this fight erupted, and the people we were fighting with were coming, approaching, coming, going downwards, and they were there intending to fight and attack. If we were not intending to attack we wouldn’t have taken that direction, because right towards, or right next to us there was a river. How could you attack and yet there’s a river behind you? Where will you run? MR LAX Mr Ndlovu your evidence-in-chief was quite clear. You said, you were asked, why did you go up. Mr Draht in fact asked you that question. You said, "...the intention was to go and fight, to meet the group coming from the up, the ANC group. We went up with the IFP group." That was your evidence-in-chief. He still asked you which group and then you explained it was the ANC group that was coming down. So it was clear your intention was to go up there and fight with these people. You weren’t interested in running away. MR NDLOVU Yes, fighting would have fought, would have run away if we could tell or if we saw that he fight was intensifying. MR LAX Now what I would like to know from you is, you were unarmed at that stage. How were you going up there to fight? You didn’t have any arms on you at all? Not even a stick. You only picked that up much later. What were you going to fight with? MR NDLOVU When I started, when I realised that there were many and after Mkhize told me that there was a fight, that’s when I got shocked and realised that I am going there unarmed. MR LAX Sorry, if you can just sit a little bit away from the mike. MR NDLOVU ...(not translated) INTERPRETER I beg your pardon. MR NDLOVU When I got out from the house I did not intend to fight. I intended to run away and escape and go to these others. I did not intend to fight. It was not my intention to fight. MR LAX Now you’ve told us that, the explanation given by you on paragraph 10(b) on page 4, except for the bits about you being a victim of the ANC, the rest of it you don’t know. MR NDLOVU Yes. MR LAX What I would like to know is then, what is then the reason why this fight started? And how you justify your actions. MR NDLOVU When this fight erupted, well I don’t have any evidence that I could, or anything that I could say to this forum, in relation to that. I was an ordinary person who was working and come back home late in the afternoon. Even on that day in question I was at work on that Saturday. I was at work so that which I’m trying to say here is that I only had limited time at home. Most of my time I would be away at work and come home late, and I’ll only be sleeping. I will not know the situation in the area, especially before this incident. I don’t know. MR LAX It’s been suggested that the area was peaceful and that most disputes were resolved by discussion and negotiation. You hadn’t heard of any previous violence before this incident? MR NDLOVU If my memory serves my right as I said earlier on that I had limited time at home or in the area. Most of my time I spent at work and away. ...(intervention) CHAIRPERSON If you could just answer the question. The question was had you heard of any violence in the area before then? MR LAX A simple yes or no would be sufficient. MR NDLOVU I don’t remember. MR LAX Now, you said the IFP group was around 100. MR NDLOVU Yes. MR LAX Mr Sithole told us it was around 20. MR NDLOVU I don’t disagree with what Sithole said because this a hypothetical figure. It’s just a rough estimation so that we will not be exact as to the amount. This is just an estimation so I would not disagree with what Sithole said. MR LAX But you will concede that there’s a big difference between approximately 100 and approximately 20. The difference is 80 people. CHAIRPERSON Five times, the difference. One’s one fifth of the other. MR NDLOVU This is why I say we see different, as also the fact that we arrested different, at different times. ...(indistinct) one when we being arrested, and that’s why, that is why I explained to the Court of law that ...(inaudible). I am saying, this is why I’m saying it could have been that we were 100 because we were 21 when we were being arrested. And out of this 21 there were some who remained. They were released subsequently after checking up. MR LAX Just one last thing. Did this, did your lawyer before he led your evidence, either this morning or yesterday afternoon, not go through this whole document with you? MR NDLOVU No, he just touched there and there. MR LAX So he didn’t read you each section, confirm with you whether it was correct or not? He only just touched a few little items? MR NDLOVU As I’ve said, yes. Only touched there and there. MR LAX Thank you Chairperson. CHAIRPERSON Mr Draht do you have any questions arising from questions put by the Panel? MR DRAHT Please Mr Chairperson. Mr Ndlovu, after the first fight, before you went back to the shebeen, somebody shouted something and then you went back to the shebeen. What did he shout? INTERPRETER Shout or shoot? MR DRAHT Shout. MR NDLOVU No-one shouted. What happened, was that one had an opinion that we should go to Soksana’s shebeen to see if there are not people there the shebeen. MR DRAHT Did he say you must go back to see if there were any people, or any ANC members or ANC people. MR LAX Sorry, that’s a hell of a leading question Mr Draht. CHAIRPERSON I think he’s already said to us people. MR LAX I’ve let it go up until now. You’ve got away with absolute murder on your leading questions, but, no the problem with leading a witness in that way is the probative value of that evidence is reduced substantially, but be it as it may ...(intervention) MR DRAHT Can I rephrase my question Mr Chairperson? CHAIRPERSON Yes. You said, well okay you can rephrase it. I don’t know how you’re going to. MR DRAHT Did that person mention anything about other political parties when he shouted something? Is that? CHAIRPERSON It’s not going to really help in the long run. It’s been dragged out I think. ...(inaudible) the question. MR NDLOVU No, please repeat that question. MR LAX Perhaps I could help here Mr Draht. Why, what were you going to the shebeen to look for people for? What was the purpose of going there? MR NDLOVU We had gone there to the shebeen as I said, that somebody had this opinion of view that we should go and see if there were no people at the shebeen. And we went there and we did not go inside. As we were approaching the shebeen we saw people running away, coming out and running away. MR LAX Was the idea to attack the people who might be there? MR NDLOVU Yes, it could have been the one of attacking, because if we found them there we would have assaulted them. MR DRAHT Just a moment, if you can give me a few seconds Mr Chairperson. One last question Mr Chairperson. Mr Ndlovu can you please tell me why would you say that your actions was political motivated? MR CACHALIA Sir, may I just at this stage say sir that he had never said that his actions were political. CHAIRPERSON He hasn’t said that. He’s basically said he was a victim of circumstance really. He was a member of the IFP, a situation arose, he found himself in it, and that’s it. I mean he was quite clear I think, he answered that in response to both questions by Mr Cachalia and Mr Lax. It doesn’t really come out of matters arising really, but you can ask him. You’re going to get the same answer. MR DRAHT Mr Ndlovu, were your actions politically motivated? MR NDLOVU With regards to this incident? MR DRAHT Yes. MR NDLOVU Yes, this was under this political umbrella. MR DRAHT Thank you Mr Chairperson. CHAIRPERSON Mr Claassen any further questions? MR CLAASSEN I have no questions. NO QUESTIONS BY MR CLAASSEN CHAIRPERSON Mr Cachalia? MR CACHALIA Thank you none. NO QUESTIONS BY MR CACHALIA CHAIRPERSON Ms Lockhat? MS LOCKHAT No questions. NO QUESTIONS BY MS LOCKHAT CHAIRPERSON Thank you Mr Ndlovu, that concludes your testimony, you may step down. We will now take the tea adjournment for approximately 20 minutes. Thank you. WITNESS EXCUSED COMMITTEE ADJOURNS ON RESUMPTION ELIAS MBATHA: AM NO 7028/97 CHAIRPERSON Mr Draht? MR DRAHT Thank you Chairperson. I call Mr Elias Mbatha. CHAIRPERSON Mr Mbatha do you have any objection to taking the oath? ELIAS MBATHA (sworn states) CHAIRPERSON Thank you. Mr Draht? EXAMINATION BY MR DRAHT Thank you Mr Chairperson. Mr Mbatha you are the applicant in this matter, is that correct? MR MBATHA That is correct. MR DRAHT You are in prison at the moment? MR MBATHA That is correct. MR DRAHT How long was your sentence? MR MBATHA Fifteen years. MR DRAHT If I can refer the Committee to page 8 of the bundle. Mr Mbatha, if you look at the middle of page 83, is that your signature? MR MBATHA Yes. MR DRAHT Mr Mbatha can you read or write? MR MBATHA No I cannot read, I only can write my name. MR DRAHT Who took this statement from you? MR MBATHA Mr Msizi as well as this legal counsel, the one at the end. MR DRAHT Mr Claassen? MR MBATHA Yes. MR DRAHT Did they read the statement back to you? MR MBATHA Yes they did. MR DRAHT When they took it? INTERPRETER May the speaker please repeat the question. MR DRAHT Did they read the statement back to you at the time when they took the statement? MR MBATHA Yes, if I remember very well. MR DRAHT Did you tell the truth in Court? MR MBATHA No, I told lies. MR DRAHT Are you going to tell the truth now? MR MBATHA That is correct. MR DRAHT Mr Mbatha are you a member of a political party? MR MBATHA Yes. MR DRAHT What party? MR MBATHA The IFP. MR DRAHT And at the time of the incident I suppose you were also a member of the party. Is that right? MR MBATHA Yes, I was a member of the IFP. MR DRAHT What was your position in the party? MR MBATHA I did not have a position, I was just a follower. MR DRAHT For what charges are you applying for amnesty for? For what acts? MR MBATHA I’m seeking amnesty for murder and being found in possession of an illegal firearm, attempted murder, and as well as illegal ammunition. MR DRAHT Before this incident what was the situation in Zevenfontein? MR MBATHA The situation was not good. MR DRAHT Why do you say so? MR MBATHA The situation was not good in terms of the relationship between the IFP and the ANC. MR DRAHT Up until this date of the incident, or prior to this date of the incident, was there any violence or fighting between the two groups? MR MBATHA No, there was no fighting, but there was just a lot of talking. MR DRAHT Mr Mbatha in your statement you stated that Zevenfontein was a war zone at the time. To which time do you refer, or did you refer? MR MBATHA I’m referring to the day of the incident. MR DRAHT Did you receive any instructions to act in the manner you did that day? MR MBATHA No, there were no instructions. CHAIRPERSON Just before you proceed, on a very small point, Mr Draht. Mr Mbatha, in your application form on the first page you spell your name E L I A S and your signature you spell it E L L I A S. Which is the correct spelling? Is it meant to have two L’s your name, or one L, in Elias? MR MBATHA Would you please show me? CHAIRPERSON See, on the front page it ELIAS then on the back page, page 83, I just want to make sure that we get your name correctly. MR MBATHA The first one is the one with, the first one is the correct one with one L. CHAIRPERSON Yes, thank you. Sorry, sorry to interrupt. I see on page 84 when he signs his name there’s a different, it ELLAS. Okay. We’ll take it that it’s E L I A S. Thank you. Carry on Mr Draht. MR DRAHT Thank you Chairperson. Mr Mbatha, who was your induna? MR MBATHA Mr Sithole. MR DRAHT Did he gave you any orders on that specific day? MR MBATHA No. MR DRAHT Can you describe to the Committee now what happened on the 12th of February 1994. MR MBATHA Yes. MR DRAHT Continue. MR MBATHA It was on the 12th of February 1994 and it was during the day we saw ANC people meeting, and the rain started drizzling, and when these people met the rain started pouring. I went into my shack and as I was sitting there, one IFP follower whose name is Ndlela came to me. And he said to me, "...Mbatha can you see what is happening further down there?" and I said, no. And he said, "...I can see the ANC is armed down there." And I said, "...Wait for me, let’s go down to Magwaza"s." Indeed he waited for me. I took a firearm and put it on my waist, and we went out. ...(intervention) MR DRAHT What type of firearm did you take? MR MBATHA 765. MR DRAHT To whom did this firearm belong? MR MBATHA It was mine. MR DRAHT Did you possess any licence to have this firearm? MR MBATHA No, I did not. CHAIRPERSON ...(inaudible) have ammunition? MR MBATHA No. MR DRAHT Did you take an interest ...(intervention) MR LAX Sorry, did he say the firearm had no ammunition? MR MBATHA There firearm had ammunition, I just didn’t have the ammunition, I mean I just didn’t have the licence for the ammunition. MR LAX That’s why I didn’t understand the answer. How many bullets did you have for the firearm? MR MBATHA I cannot remember. Because some of these rounds of ammunition were in my pocket. I think there were six of them in the firearm. MR LAX That was in the magazine? What you might call the cartridge of the firearm, some people call it a cassette. MR MBATHA I had six rounds of ammunition in my pocket. I cannot recall how many I had in the cartridge. MR LAX Thank you. MR DRAHT Thank you Mr Chairman. Mr Mbatha why did you take the firearm with you at that stage? MR MBATHA I heard that the ANC were armed, and there was this talk that we had to moved their posters which were placed in our area of residence. MR DRAHT Continue. MR MBATHA I took my firearm and proceeded towards Magwaza’s place, where I found IFP people. And it was not long after I had arrived and the ANC started coming down, approaching us from where we were standing at Magwaza’s shop. And when we got out of this shack and we went towards the sports fields. And before we could get to the sports field they started pelting us with stones, and we had to take cover, hiding from behind the shacks. They started shooting, and after the shooting we stood up and we went to them. We too started shooting at them. MR DRAHT Mr Mbatha could you see with what were they shooting at you? MR MBATHA I could not make out, but I could tell from the sound that they were using firearms. MR DRAHT How many times? Did they shoot once or more than, or several times? MR MBATHA They fired several times. CHAIRPERSON When you said that they were shooting you, how, how do you know that? Purely from the sound. How do you know that somebody wasn’t merely shooting into the air? MR DRAHT Even ‘though I would not in the position to say, but I concluded that they were shooting at us because they were fighting us and they were pelting us with stones, and therefore they could not have shot in the air because they were fighting us. CHAIRPERSON You didn’t hear the whistle of bullets through the air for instance? MR MBATHA Yes, I did hear that. MR DRAHT Continue. MR MBATHA They started running away when we exchanged gunfire, and they run, they ran towards the TPA offices. MR DRAHT Who in your group returned fire? MR MBATHA I too fired shots. Mr Sithole as well. MR DRAHT Could you see what Mr Sithole fired, with what type of gun? MR MBATHA He had this rifle, the one called AK. MR DRAHT Did you shoot at the ANC group? MR MBATHA Yes I shot at them. MR DRAHT Did you see if you hit somebody? MR MBATHA No, I could tell. I was just shooting at this group of people. MR DRAHT Continue. CHAIRPERSON Sorry, just on that. But it was a big target, wasn’t it? How many people were there? What was the size, approximate size, of the group, the ANC group? MR MBATHA There were many of them. They could have been 400, they were quite many. CHAIRPERSON How far away were you from them when you shot towards them? MR MBATHA They were a distance away even ‘though I’m not in the position to say, but they were a distance from where I was standing. CHAIRPERSON Was it longer than this room that we’re sitting in now? MR DRAHT I would say from the Chairperson right up to the exit point of these buildings. CHAIRPERSON That I think was 35 about 40 paces. I think it was 35 from, was it 35 from here. You paced it out Mr Cachalia. MR CACHALIA Yes, approximately 35 paces. CHAIRPERSON Continue Mr Mbatha. MR MBATHA And when they fled we went back. MR DRAHT Back where? MR MBATHA We went back to where we came from, from Magwaza’s shop. We went back when they ran away towards the TPA offices. And when we went back that’s where we came across one person who was dead near Skosana’s shop. MR DRAHT Did you know this person? MR MBATHA No, I didn’t know him. CHAIRPERSON Is Skosana’s shop also a shebeen? MR MBATHA Yes. MR DRAHT Continue. MR MBATHA We went back and we waited at the grounds, and the police came. I ran away. MR LAX Just one thing before we lose it, sorry Mr Draht to interpose. You said that the dead person was near Skosana’s shop. How far was that from where you were shooting? It was on your way from where you were shooting back to Magwaza’s, but how far was it from where you were shooting? MR MBATHA He was a distance away from where I was standing. He was on the other side and the ANC was fleeing towards a different direction. I only saw this person on our way back. MR LAX You can’t really tell us that, from the place where you were shooting at these people from, to the place where you found him on your way back, what, is it directly on your way? Or would you have to go out of your way, to get to this person? MR MBATHA I’m trying to explain here that the person was not on the side from where I was shooting. I only saw this person when we came back from pursuing the ANC people. And I only saw this person in front of Skosana’s shop. MR LAX Okay, the problem is cleared up in this sense, that I hadn’t understood you earlier to be saying that you had pursued them. Maybe you can elaborate on that. Your previous evidence was that you fired the shots, that they ran away, you then went back to Magwaza’s and on the way you saw them, you saw this deceased man. You haven’t said anything about pursuing these people at all. So that’s the problem. But perhaps Mr Draht can deal with that as he questions you. MR DRAHT Mr Mbatha, after the ANC people, when they started to run away, did you pursue them? MR MBATHA Yes we did. MR DRAHT And what happened then? MR MBATHA We ran after them right across the sports field and we started calling one another to come back. That is when I saw the person who was lying down dead near Skosana’s shop. MR DRAHT While pursuing the ANC group, did you see any person get hurt, or being attacked by your group? MR MBATHA No, there’s no one person that I saw getting hurt, except the one that we came across lying dead. MR DRAHT What happened after you went back to the sports field? MR MBATHA We went to the sports field, and we stayed there. It was difficult for us to go back to the shacks, because we did not know whether these ANC people were coming back or not. And we decided to stay there, wait for them, and see whether they come back or not. And as we were standing there one police vehicle came along, and when it arrived I fled with the weapon that I was carrying. MR DRAHT When were you arrested? MR MBATHA I was arrested on Sunday. This happened on Saturday. MR DRAHT Where were you arrested? MR MBATHA I was arrested on my way to Zevenfontein, having come from the river where I had hidden to avoid arrest. MR DRAHT You stated there were about 400 persons in the ANC group. How many persons were in your group? MR MBATHA Even ‘though I cannot be sure, but we could have been around 100, but then I must say I’m not sure. We were not too many. The one group that was more than ours was the ANC. MR DRAHT Were they armed? The ANC group. MR MBATHA Yes, they were armed. MR DRAHT With what were they armed? MR MBATHA They had machetes and spears, as well as sticks. MR DRAHT Except for hearing the shots from their group could you see anybody with firearm in the ANC group? MR MBATHA No. MR DRAHT Except for Mr Sithole in your group, and yourself, did you see any other persons in your group with firearms? MR MBATHA The one person I saw was Mr Magwaza. MR DRAHT What kind of firearm did see with him? MR MBATHA He had a handgun. MR DRAHT Mr Mbatha are you sorry about the acts that you have committed that day? MR MBATHA Yes, I am very sorry. MR DRAHT That will be all Mr Chairman. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON Thank you Mr Draht. Mr Claassen do you have any questions to ask the witness, the applicant? MR CLAASSEN Thank you Mr Chair, I’ve got no questions to ward this applicant. NO QUESTIONS BY MR CLAASSEN CHAIRPERSON Mr Cachalia do you have any questions to ask this applicant? CROSS-EXAMINATION BY MR CACHALIA Mr Mbatha, you were not responsible for the, there were no people that died when the original next to Brown’s shack where the IFP shot towards the ANC group. Is that correct? You didn’t see anybody that had died as a result of that shooting at that particular place? MR MBATHA Yes, I did not see anyone. I only heard from the police that one of the people died around that place. MR CACHALIA And did you know that one of the persons had died at some other place quite higher up where he was stabbed and assaulted and he died as a result of that. Do you know that? The evidence that your previous co-accused gave. CHAIRPERSON Is that the one next to the shebeen, or a different place. MR MBATHA I would not dispute that because yes, some of our people were carrying spears. MR CACHALIA No just the person that Mr, your, the previous applicant discussed was Mr Alfred Malumale, who had died because of the assault on him. Mr Ndlovu gave that evidence. Did you hear that evidence? This morning. MR MBATHA Yes, I heard it quite well. MR CACHALIA That was higher up on that main road where the shooting took place. MR MBATHA Would you please repeat the question. I do not get it quite well. MR CACHALIA The two groups confronted one another. The ANC and the IFP near Mr Brown’s house and at the sports field. Is that right? When the shooting took place. MR MBATHA That is correct. MR CACHALIA Now on that road that goes towards the top of the settlement, the steep incline there, on that particular road Mr Malumale died higher up on there and not as a result of the shooting. Is that right? CHAIRPERSON Do you know? I think, ask him if he knows. Are you aware that a Mr Alfred Malumale died on that road that goes up the steep hill to the top part of the settlement? That was mentioned by Mr Ndlovu in his evidence. He said that he saw a person being attacked there but he didn’t himself participate in that attack. That’s what he said. Are you aware of that? MR MBATHA I would not dispute that, but I was not directly involved in that. MR CACHALIA That’s what I’m trying to say. You ...(intervention) MR LAX Just one second. Are you saying that you never saw that? Is that what you’re saying? MR MBATHA Yes, I did not see it happen. MR CACHALIA And I just want to put to you that the street that goes down next to the sports field past Mr Brown’s house towards Magwaza’s shop is sort of the main road that comes up from the top of the hill that is. Am I correct in saying that? That in the squatter camp it is a gravel road which comes up, which comes down towards Magwaza’s house, that is one of the main roads. Is that right? There are little alleyways in the squatter camp. This is a road on which you can drive a motor car with, two motor cars can pass there. MR MBATHA Yes, I agree with you, that’s the main street that’s coming from the top. But there was no tar road there. The tar road was further up. CHAIRPERSON Mr Cachalia mentioned that it was a gravel road. MR CACHALIA I’m just mentioning that in order to place Skosana’s shebeen. If I came from the top to down that road I would pass Mr Brown’s shack on my right-hand side, there would then be the sports field, and about 20 or 30 paces further down from the sports field was Mr Magwaza’s shop. Is that correct? MR MBATHA Yes, I agree with you. MR CACHALIA And Skosana’s shebeen was on the lefthand side where most of the IFP members were living at that time. They’re not living there now, it is now cleared, but Mr Skosana’s shebeen was on the lefthand side about 60 or 70 metres from the sports field. Is that correct? MR MBATHA I agree with you. MR CACHALIA Why was it necessary for you to go past that place? You were pursuing the people up onto the steep where they were running away, why did you have to go to Skosana’s shebeen area? MR LAX Sorry Mr Cachalia. His evidence so far has been that he pursued them across the sports ground, and then somebody called them back. He didn’t get, his evidence so far is he didn’t get past the sports ground. That’s how I understood it. CHAIRPERSON Except that he did say that he saw a body, near Skosana’s shebeen. MR LAX Yes, but that was on the way back from the sports ground. CHAIRPERSON Yes but I think what Mr Cachalia’s saying is, we’ll have to clear this up, is the ANC ran the other way from, away from Skosana’s shop, not towards it. Perhaps we could clear that up. Perhaps you could ask him in which direction they ran Mr Cachalia. If they ran towards that said shop or not. MR CACHALIA Thank you sir. Mr Mbatha, you were standing on the lower end of the slope on the grounds and Mbatha’s, sorry Brown’s house is a little higher up, where the ANC group was. Is that correct? MR MBATHA Let me explain it as follows. I do not know Brown’s house quite well, but we were downward, on the downward direction, and the ANC were further up. MR CACHALIA When you shot at them did they run higher up towards the hill? Did they run upwards or did they come further down? MR MBATHA They ran upwards. MR CACHALIA And Mr Skosana’s shebeen, from the particular place where you were at the sports field, if you came down that road you’ve just agreed that it is about 50 or 60 metres on your lefthand side on that particular road so it would it’s not the direction in which the ANC ran. Is that correct? MR MBATHA I would not dispute that because I have no knowledge of metres. CHAIRPERSON I think the question Mr Mbatha, asked by Mr Cachalia, forget the distances. But you’ve got the hill, the main road that goes up the hill to the top of the settlement. At the bottom of that hill, or lower down, there’s Brown’s house, then you’ve got the sports field as you’re going down towards the river. You’ve got Magwaza’s shop, and then you’ve got on the other side of the road, the, Skosana’s shop or shebeen. Now, the shooting took place near Brown’s house. When the ANC group fled, did they run towards Skosana’s shebeen, or did they up the hill, or did they run in all directions? What? Can you just explain how they ran away? MR MBATHA They spread towards different directions. Some of them went up and some of them took different directions. They took all different directions. MR CACHALIA Mr Mbatha, what I’m saying to you in this particular regard, is that you had nothing to do with the killing of that particular person outside Skosana’s shebeen and there was no reason for you to go past there. Is that correct? MR MBATHA I had a reason to go past that place. MR CACHALIA Did you have anything to do with the killing of the person that was killed there? MR MBATHA I am involved because he was killed by members of the IFP and I’m also a member of the IFP. CHAIRPERSON Mr Cachalia’s asking did you personally participate in the assault upon that person whose body you saw there? Personally, yourself? MR MBATHA No, I did not. MR CACHALIA The only activity that you were involved in on that particular day which might have constituted criminal activity was the shooting at the sports field, is that correct with an unlicensed firearm. MR MBATHA Yes, I did fire shots. MR LAX The question was not that you fired shots. The questions was, was that, the firing of shots, was that the only criminal activity you were involved in on that day? MR MBATHA It was not a criminal act. I was shooting at these ANC people. MR LAX But did you do anything else to the ANC people besides shooting them? MR MBATHA Nothing else. MR LAX Thank you. MR CACHALIA Thank you Mr Lax. So, if you had committed any act which might have constituted criminal activity, was the shooting at that place where you might have injured a some people or killed some people, is that right at the sports field between, sorry at the sports field and leave it at that. MR MBATHA It is possible people got injured or died because I was shooting at these ANC people. Yes, that is correct. MR CACHALIA What I’m saying is because ...(intervention) CHAIRPERSON I think it must be. He said he only shot at the field. You don’t, he was quite clear, you don’t have to spend a lot of time getting him to say what we all know. MR CACHALIA Mr Mbatha what I’m saying to that as a result of that you are not asking for amnesty for the murder of the person who was killed at Skosana’s shebeen, nor are you asking for the ...(intervention) CHAIRPERSON Sorry Mr Cachalia to interpose, but he said he personally was involved in the shooting, and from his evidence that’s obviously what we know, but I don’t know if he knows about the doctrine of common purpose. He was convicted on that basis you know, not on he basis that he physically personally himself injured each of the seven injured people and personally shot each of the deceased. It was a common purpose, so I think that’s a bit of an unfair question. He obviously doesn’t know the doctrine of common purpose. He was convicted of the assault, all the assaults and all the murders, attempted murders. So on what he says, because he says he only shot at the field, it doesn’t exclude us considering his application in respect of the other offences for which he was convicted of. MR CACHALIA As the Chairperson pleases. I will then not pursue that particular matter. Insofar as Mr Mbatha is concerned you made this particular statement in, on the 6th, sorry 6th of May 1997. And then there was a previous statement that you made on the 12th of December 1996. Is that correct? CHAIRPERSON Page 84. MR MBATHA I would not dispute that. May I please have a look at it. CHAIRPERSON Page 83 if the 6th of May, that’s the application form, and the one that’s date stamped the 12th of December 1996 is page 84. MR LAX May I interpose for one second Mr Cachalia. Mr Mbatha, you must have filled out two application forms. Is that right? On two different occasions. MR MBATHA I cannot recall. MR LAX Because when you did the affidavit on the 12th of December 1996 that affidavit must have been attached to a form one. CHAIRPERSON It says so on the top, yes. It’s on the top. ...(inaudible) INTERPRETER Chairperson the speaker’s mike is not activated. MR LAX Humble apologies. It says this, it says at the top this is an affidavit which is an addendum to a form one. You don’t remember signing one application in December 1996 and then later doing another one in May 1997? MR MBATHA Yes I do remember the 1996 application. CHAIRPERSON So why did you fill in two applications? MR MBATHA The one that I made in 1996 was part of this request to come and appear before the Commission so as to tell the truth. MR LAX If you were telling the truth why doesn’t that affidavit say anything about what you did? MR MBATHA The one affidavit that I made was such that I was not sure whether it would be successful. CHAIRPERSON You see he also, also in your application that’s on page 77 to 83, the 6th of May one, 97, also makes no mention of you shooting, yourself, actually shooting towards people. MR MBATHA It is possible that is not included. But I knew that I would tell the truth once I come before the Commission as I am doing now. CHAIRPERSON Yes Mr Cachalia. MR CACHALIA Mr Mbatha, in both this documents that we have in front of us, that is the application from page 77 to 83 and the one on 84 you are telling the truth. You have just expanded on what you were saying. Is that what you’re saying to us, sir? MR MBATHA I would not say it is not the truth, or the truth, ‘cause I cannot read. I don’t know what the contents of these applications are. MR CACHALIA Perhaps, I’m sorry that we’re going to be long-winded again, but, it says that, in your application that you signed on the 6th of May 1997, basically what you are saying is that you only defended yourself. That is the truth? MR MBATHA Yes that is the truth. MR CACHALIA And in your application, the annexure that we only have here, we don’t have the other portion of it, in the previous one you say that, I will read it to you just for completeness sake. It says that "...there was a war waged against the IFP the ANC put up posters everywhere even on IFP shacks. This led to argument between the IFP and the ANC youth." Is that correct? MR MBATHA Yes, that is correct. MR CACHALIA Paragraph 2 says "...it was announced that the IFP youth brigade and the ANC youth league were in conflict." Is that correct? MR MBATHA Would you please repeat that? MR CACHALIA Your second paragraph says that it was announced that the IFP youth brigade and the ANC youth league were in conflict. Is that correct? MR MBATHA No, I do not remember writing the statement like that. MR CACHALIA Then the third paragraph says "...the argument about the posters was on Friday the 11th." Is that correct? INTERPRETER May the speaker please repeat the question. MR CACHALIA The paragraph three starts with saying that the argument about the posters was on Friday the 11th. Is that correct? MR MBATHA Yes, I agree with that. MR CACHALIA And it goes on to say "...on Saturday the 12th the ANC started attacking. We expected that as usual the conflict would be resolved by discussion. The ANC did not want to resolve in this manner but chose war." Is that correct? MR MBATHA Yes, I agree with that. MR CACHALIA Then it goes on to say "...I apply for amnesty because I am a victim in the sense that there was a war between the IFP and the ANC. I was arrested but none of the ANC." Is that correct? MR MBATHA Yes, I requested amnesty but I never said no one ANC member was arrested. ADV SIGODI He says he can’t remember that. He can’t remember saying that. MR CACHALIA Yes Chairperson. The final paragraph of your this affidavit of 12th of December says "...many people were crippled and killed by the ANC but none of the ANC’s were arrested." Is that correct? MR MBATHA I do not remember that quite well. CHAIRPERSON But is it correct or not? MR MBATHA I wouldn’t say it is the truth because I cannot remember that. I cannot remember writing it like that. MR CACHALIA Were ANC members responsible for the killing of many people? Is it correct or not? That’s what the Chairperson has asked you and I’m just repeating the question. MR MBATHA Are you saying they’re responsible? CHAIRPERSON The question is, Mr Mbatha in this affidavit, which you have signed, this one on page 84, you say "...many people were crippled and killed by the ANC but none of the ANC were arrested." That’s what you are, you have said in this affidavit, which you say that you signed on the 12th of December. Now the first question was, did you say that, and your answer to that is "...I can’t remember." Now the next question is, in fact were many people in Zevenfontein killed by the ANC, and were ANC members not arrested? MR MBATHA No, I don’t remember that. MR LAX You see the problem here is not whether you remember it or not, is that you don’t remember saying it, or that you don’t remember that happened at all, or can you categorically say it never happened? MR MBATHA I don’t remember saying that. CHAIRPERSON But did it actually happen? Sorry. Did it happen in Zevenfontein that the ANC people killed many people. Forget about the statement. Did it happen? Do you know whether ANC inhabitants at Zevenfontein killed other people? MR MBATHA No, it did not kill anyone. MR LAX Just one last thing on this statement before you go on Mr Cachalia, if you would allow me. I see from the top of this statement that it comes from a firm of lawyers. Did lawyers come to you and take a statement from you, at Zonderwater in December 1996? MR MBATHA In 1997. MR LAX This statement was taken in December 1996, you signed it on the 12th of December 1996. If you look at the bottom there’s a date stamp on it, it has the date there. MR MBATHA Yes that is correct. MR LAX And this was faxed to the Commission on the 13th of December 1996. Now when your lawyers came, they came, did they, with an interpreter? MR MBATHA Yes, there was an interpreter. MR LAX Thank you. CHAIRPERSON Yes Mr Cachalia. MR CACHALIA Mr Mbatha, what I’m saying to you is essentially what you have told us in both those affidavits, the one of 1997 and the one of 1996, is that you were defending yourself and you have given a number of other facts. I just want to deal with the one fact her quickly with you. There was in fact, I am saying it is common cause, that there was a dispute about posters on Friday the 11th. You’ve admitted that already and there was a resolution of that between Mr Sithole and members of the ANC. Do you agree with that? MR MBATHA I cannot dispute that. ADV SIGODI Mr Cachalia did I hear you correctly? Are you saying that it is common cause? MR CACHALIA That is so. MR LAX Sorry, just repeat it for my benefit. I was distracted. I must apologise. MR CACHALIA I had put it to him that it was, I put it to the applicant. I had put to the applicant that it was common cause that there was a dispute about the posters on the 11th of February that the Friday and that I put it that it was settled between Mr Sithole and ANC officials on the Friday. That matter was sorted out. And I think the answer was, sorry I don’t know want to presume the answer. MR LAX What is your answer to that Mr Mbatha. MR MBATHA Yes, I agree with the fact that Mr Sithole resolved the dispute with certain ANC leaders on that Friday. MR CACHALIA Then it would be incorrect to say, then it is incorrect to say that the ANC did not want to resolve in this manner but chose war, on that same paragraph of paragraph 3 of page 84. What I’m saying Mr Mbatha just to assist you is that it is common cause that there was a dispute that it was resolved the common cause between Mr Sithole and the victims who are present today and the witnesses that that issue was resolved on Friday. Now if that was resolved why do you go ahead and say that the ANC did not want to resolve the manner but chose war, and you’ve already admitted that that is correct what you have said there. MR MBATHA I said that because it had been discussed, or this was resolved between Mr Sithole and the ANC. We were still waiting for Mr Sithole, that is why I said that. MR CACHALIA The question that I’m leading to is there was, there is no basis for you to say that the ANC chose war. In fact the issues were resolved you are suggesting that they chose war. MR LAX Maybe I could put it a better way because the way you’re putting it is confusing, Mr Cachalia, I’m sorry. What Mr Cachalia is asking you, and I’ll put it in a slightly different way, he’s saying, if there was no dispute left because the matter had been resolved by Mr Sithole and the ANC leaders, what was there to then fight about? And to chose war instead? Do you understand? MR MBATHA I get you quite well. That also confused me. CHAIRPERSON So why do you think that there was a war on the Saturday, if the question about the posters had been resolved the day before? MR MBATHA I say the ANC people came to attack us, this is why I say that. MR CACHALIA Thank you sir. Mr Mbatha, I am saying that in both these applications the most central aspect of your amnesty application was not dealt with in that you did not admit to being in possession of an unlicensed firearm, you did not indicate that you had ammunition for that, you did not indicate that you were responsible for the murder of anybody, in the two applications that we have before us. Am I, is that correct, do you agree with that? MR MBATHA Yes. MR CACHALIA Then I am saying that you are today giving a version because you now realise that in order to get amnesty you need to give a version where you make some kind of admissions, but I am saying that you have not made full disclosure then nor have you made full disclosure today. MR MBATHA Today I’m telling the truth and I’m divulging. MR CACHALIA You had what was called an Astra pistol. Is that correct? MR MBATHA Yes. MR CACHALIA There was, the argument in the High Court about whether the ANC shot at you or not was discussed at length. Is that right? MR MBATHA Please may you repeat just that part. MR CACHALIA I am saying that in the High Court when the case was carrying on whether the ANC had shot at members of the IFP was a matter that was canvassed extensively. MR MBATHA Yes. MR CACHALIA And the judge found in that case that not only is there no evidence, I’m referring to page 217 sir, line 16 "...not only is there no evidence to support this submission, it is all inherently improbable for had the ANC possessed any firearms one would have expected some casualties amongst the IFP group and none were reported." CHAIRPERSON What do you say about that finding of the Court, which was arrived at after hearing extensive evidence on this, relating to this whole incident? MR MBATHA Well I don’t disagree with him there. MR CACHALIA You don’t disagree with the Judge well alright we’ll leave it on that particular basis. Mr Mbatha, I just want to be quite clear in my mind as to what happened. I just to very short summarise your evidence. You were in your shack and you went from there with your gun to Mr Magwaza’s place. MR MBATHA Yes. MR CACHALIA And from Mr Magwaza’s place you proceeded to the sports field? MR MBATHA Yes. MR CACHALIA The shooting took place there and after the shooting, after you had pursued them, you came back to Mr Magwaza’s shop? MR MBATHA Yes. MR CACHALIA And from Mr Magwaza’s shop you went back to the sport field? MR MBATHA Yes. MR CACHALIA That’s when the police arrived and you ran away? MR MBATHA The police arrived after I finding out that there were killings there. MR CACHALIA Yes no I, I don’t dispute that but I’m saying but after the police arrived you ran away is that right? Is that correct? MR MBATHA Yes. MR CACHALIA Your reason for going back to the sports field was that it was not safe for you to be in your own homes and you had to group yourselves in case you were attacked by members of the ANC. Is that the reason you gave to us? MR MBATHA Yes, that’s true. MR CACHALIA And in fact before the police arrived no members of the ANC came back to attack you? MR MBATHA No, they did not arrive. MR CACHALIA I just want to finally put to you that, Mr Magwaza, sorry Mr Mbatha, I want to put to you that in fact shooting was commenced by members of the IFP group and then there was the reaction of the stone throwing towards the group that was stoning them, that was shooting at them. And there was no necessity to defend yourselves because there was no attack on you. MR MBATHA I refute that. I know ANC started first. MR LAX Sorry Mr Cachalia. CHAIRPERSON Sorry Mr Lax, Mr Claassen. MR CLAASSEN Sorry, I just, I think Mr Lax we might have the same question. I believe Mr Cachalia put it to them that they shot in retaliation to stone throwing. CHAIRPERSON What my, correct me if I’m wrong Mr Cachalia, my understand was that it was put to the applicant that the IFP started the shooting and that in response to the shooting there was some stoning by the ANC, but the ANC did not attack the IFP. Is that correct? MR CACHALIA That is correct sir. CHAIRPERSON That there was in response to the shooting some stoning by, from the ANC. MR CACHALIA As the Chairperson pleases. CHAIRPERSON I think he’s put his version. He doesn’t have to. MR CACHALIA I just needed to put the version, sir, that’s all. I have no further questions. NO FURTHER QUESTIONS BY MR CACHALIA CHAIRPERSON Thank you Mr Cachalia. Do you have any questions? MS LOCKHAT No questions Chair. NO QUESTIONS BY MS LOCKHAT CHAIRPERSON Do you have any re-examination Mr Draht. MR DRAHT No re-examination. NO RE-EXAMINATION BY M R DRAHT CHAIRPERSON Advocate Sigodi do you have any questions to ask? ADV SIGODI No questions Chairperson. CHAIRPERSON Mr Lax? Well then I’ll ask one in the meantime. Mr Mbatha, how many shots did you, would you say that you yourself personally fired? MR MBATHA I shot several times. CHAIRPERSON Can you give an indication? You said you had six rounds in your pockets when you left, and you don’t know how many rounds were in the actual firearm itself. Did you have to load the firearm, did you have to resort to those six bullets that were in your pocket? MR MBATHA Yes. CHAIRPERSON When that firearm is full with rounds, how many does it take? MR MBATHA I think about seven or eight if my memory serve me right. CHAIRPERSON Did you use all the six rounds that were in your pocket? MR MBATHA I used the other six and the other six remained. CHAIRPERSON So you shot at least six shots? MR MBATHA I think it was six or more than six, because I shot several times. CHAIRPERSON And each time you shot did you point the firearm towards the ANC group before you fired? You aimed towards them and fired? MR MBATHA Yes. CHAIRPERSON Yes, thank you Mr Lax. MR LAX Thank you Chairperson, Mr Mbatha, I just wanted to understand what happened when you got to Magwaza’s shop. Were other people grouping there? MR MBATHA I would like for you to explain Mr Chair, you mean before or after the fight? MR LAX You left from your shack, before the fight, took your firearm and you went to Magwaza’s place. Maybe let’s start this. Why did you go to Magwaza’s place? MR MBATHA Because I’d already heard that the IFP is down there at Magwaza’s. MR LAX What position did Magwaza hold? MR MBATHA He was the chairperson. MR LAX So was his shop a rallying place for everybody? MR MBATHA They will go, people will go there, even those who like to drink liquor they will go there, and those who like to do some shopping or buy something they will go there. MR LAX But at a time like this when there’s a time of potential crisis would people gather at his place? MR MBATHA No, the store was closed by then. MR LAX Okay, so you just heard that people were gathering there and you went there? MR MBATHA Yes. MR LAX What happened there? Were there discussions? Did you speak to anyone else there? MR MBATHA When I got there I found the IFP group gathered, and they were asking one another as to what was happening, and they noted that the ANC is attacking, and there were no answers as such, because the ANC was approaching. MR LAX Was anyone in charge? MR MBATHA Sithole and Magwaza as well were those, those were the in charge ones. MR LAX Well what were they saying that gave you the impression they were in charge? MR MBATHA I will not be able to explain any sense, because I was seeing the ANC approaching and I was gearing towards this ANC approaching. MR LAX You see, the impression I get from listening to the evidence so far is that you all responded at the same time. As if some instruction was given. And in fact one of your colleagues said that an order was given for everybody to lie down. So everyone did lie down when the shooting started. MR MBATHA Yes, that word was uttered, I heard that also. MR LAX Well then how is it that you all got up at the same time and then proceeded to open fire? Surely somebody must have given and order about doing that, or said something, that you all responded at the same time? MR MBATHA I did not hear well from my side. I used my discretion that now it’s time for me to fire. MR LAX And everybody else just used the same discretion at the same time? MR MBATHA Well they shot as well. MR LAX And you all ran after them at the same time. Is that not correct? MR MBATHA You see when we ran after them, as soon as they shot at us we shot back at them and they fled, and we ran after them. MR LAX The point I’m trying to make is that you all pursued them at the same time. So somebody must have said something like after them, or chase them, or look they’re running away follow them, or something like that, that you all suddenly started chasing. MR MBATHA That I will disagree with, as to whether there was a person or not who was issuing instructions. We happened to have acted the same way the same time. There was no-one as such who was issuing or giving orders. I used my discretion and so were the others. MR LAX Okay now, just a last aspect. Where exactly did you pursue people to? You personally. MR MBATHA As I was shooting and running after them some people shouted behind, that is the IFP members, telling us we should stop. MR LAX So how far did you get while you were chasing them? You personally. MR MBATHA I will try here to give you an estimation of the distance. You see as we left the ground they were running towards the upwards direction, towards the shacks. That’s when I turned, I returned, I went back. MR LAX So how far from the ground had you gone, approximately? MR MBATHA I will say, I don’t know but you see this very first road, this street outside, from there ...(intervention) CHAIRPERSON Is that the street with the traffic, not the car park, the street where the traffic drives, the main road outside? MR MBATHA Yes, the main road there where the traffic passes. CHAIRPERSON Would that be about 100, 120 metres. MR CACHALIA That is what we have estimated yesterday. MR LAX One last absolute final aspect, and that is, these people were running away, you were no longer in any danger, why did you chase them and carry on shooting? MR MBATHA Yes, they were running, but because we were highly infuriated on them attacking us, we then kept following and running after them and shooting. It was all based on the anger we had, this deep-rooted anger. CHAIRPERSON Advocate Sigodi has indicated she would like to ask a question. Advocate Sigodi? ADV SIGODI Whilst you were shooting at the people at the stadium, how far was Mr Sithole away from you? Or did you see Mr Sithole during that shooting? MR MBATHA He was quite a distance from me. It could be from here towards the door. CHAIRPERSON About 30 paces. ADV SIGODI And you heard Mr Ndlovu’s evidence that he saw a big flame, green flame, twice, which was being shot from Mr Sithole’s firearm. Did you see that? MR MBATHA Yes, I agree with him, I saw that. ADV SIGODI What did you think it was? Was it an AK-47 or was it something else? MR MBATHA Those were, that was the AK-47 ammunition. ADV SIGODI Then one final aspect. Mr Sithole mentioned that there was going to be a meeting KwaZulu Natal, there was going to be busses. Do you know anything about that as an IFP member? MR MBATHA Yes I do remember, there was going to be a meeting. CHAIRPERSON Sorry, something’s come to mind that I’d just like to ask finally. Why were you in possession of an unlicensed firearm? MR MBATHA I had it for the purpose of defence, self-defence as that was a state of war. CHAIRPERSON For how long had you had that firearm? MR MBATHA It was not too long ago, I think about six months. CHAIRPERSON Where did you get it from? MR MBATHA It was my uncle’s. CHAIRPERSON Mr Draht do you have any questions arising from the questions put by the Panel? MR DRAHT No question Chairperson. NO QUESTIONS BY MR DRAHT CHAIRPERSON Mr Claassen? MR CLAASSEN Thank you Mr Chair, no questions. NO QUESTIONS BY MR CLAASSEN CHAIRPERSON Mr Cachalia? MR CACHALIA Thank you no. NO QUESTIONS BY MR CACHALIA CHAIRPERSON Ms Lockhat? MS LOCKHAT No questions Mr Chairperson. NO QUESTIONS BY MS LOCKHAT CHAIRPERSON Thank you Mr Mbatha, that concludes your testimony. I think we’ll now take the lunch adjournment. We’ll take the lunch adjournment until two o’clock. MR MBATHA Thank you. WITNESS EXCUSED COMMITTEE ADJOURNS ON RESUMPTION M MPONGOSI: AM NO: 7686/97 CHAIRPERSON Thank you. Mr Draht? Is this Mr Mpongosi. MR DRAHT That’s correct Mr Chairperson. CHAIRPERSON Mr Mpongosi do you have any objection to taking the oath? Do you have any objection to taking the oath? M MPONGOSI (sworn states) CHAIRPERSON Thank you. Mr Draht? EXAMINATION BY MR DRAHT Thank you Chairperson. Mr Mpongosi you are the applicant in this matter, is that correct? MR DRAHT For what acts are you applying for amnesty for? MR MPONGOSI I’m seeking amnesty pertaining to the incident at Zevenfontein. MR DRAHT And any specific acts? MR MPONGOSI Yes. MR DRAHT What acts? MR MPONGOSI This relates to the injuries of ANC people at Zevenfontein, as well as being in possession of illegal firearm and ammunitions, and murder, attempted murder as well. MR DRAHT Were you at the time of the incident a member of any political party? MR MPONGOSI Yes. MR DRAHT Which party? MR MPONGOSI The IFP. MR DRAHT What was your position in the party? MR MPONGOSI I was just a follower. MR DRAHT What did you plead when you were tried in Court? MR MPONGOSI I pleaded not guilty. MR DRAHT Did you tell the truth in Court? MR MPONGOSI No, I told lies. MR DRAHT Are you going to tell the truth today? MR MPONGOSI Yes, I will tell the truth today. MR DRAHT Chairperson if I can refer the Committee to page 90 of the bundle. Mr Mpongosi, if you look at page 90 of the bundle, at the bottom I think, is that your signature? MR MPONGOSI Yes. MR DRAHT This statement was dated May 1997 and was taken in Zonderwater Prison. MR MPONGOSI That is correct. MR DRAHT Mr Mpongosi can you read or write? MR MPONGOSI No I cannot. I just can write my name, not to read and write. MR DRAHT Can you remember who took this statement from you? MR MPONGOSI Yes. MR DRAHT Who took it? MR MPONGOSI It was taken by this legal counsel, the one on the other side of yourself, I’ve forgotten his name, as well as Msizi. MR DRAHT Is that Mr Claassen? MR MPONGOSI Yes. MR DRAHT Did they read your statement back to you before you signed it? MR MPONGOSI No, they just came and I signed and they took it along. MR DRAHT Mr Mpongosi I’m going to read part of your statement to you. It was on page 86, paragraph 9(4). It’s written here "...It was in Zevenfontein. The ANC and IFP were fighting." Is that correct? MR MPONGOSI Yes. MR DRAHT Then you went on stated "...The ANC attacked our houses." Is that correct? MR MPONGOSI Yes. MR DRAHT Is it to correct to state that the ANC attacked your houses? MR MPONGOSI I said they were attacking our houses because they were on their way to attack us and we decided to meet them halfway to stop them from reaching our children and wives. To stop them from reaching our houses. MR DRAHT You also said "...We did not want to fight with them but they came to our houses to attack us. We only defended ourselves. The ANC did not come to talk, they wanted to wage a war." MR MPONGOSI Yes. MR DRAHT Now Mr Mpongosi, I’m going to show another statement to you, it’s page 92 of the bundle, this statement is dated 12th December 1996. It was, it seems as if it was made before the other statement. MR LAX I think if I could just perhaps put on record the situation which we learnt during the lunch hour. MS LOCKHAT Yes Chairperson I’ve just asked Sannie van Deven to get all the correspondence together so that we could actually place that on record. CHAIRPERSON I think I could just place it on record from what I’ve been told relating to this. If you take a look at page 92 which is a similar affidavit to the one signed by the previous applicant who testified, which appeared on page 84. The heading of that is Sworn Affidavit as an Addendum to Application for Amnesty and it’s dated the 12th of December 1998. Sorry 1996. Obviously, the implication being that there was an application completed prior to the application form which appears on page 85 of the papers, the one that was signed by both applicants, each of the applicants on the 6th of May 1997. It would appear from the correspondence of the attorneys who at the time represented these applicants that the applicants did indeed complete an earlier application, but that was before that they had instructed their attorneys, and that it would seem, certainly from the records available to us here, that that earlier application never in fact reached the TRC. And the attorneys themselves, namely Messrs Nel Kotze and van Dyk, never had sight of those applications, but they were informed of them and that’s why they filed this affidavit as an addendum. When it appeared that the earlier application hadn’t been received, they completed the ones which are now in the docket, so it would seem the prospects of us tracing and finding those earlier applications are almost zero. Is there anything you would like to add Ms Lockhat? MS LOCKHAT That is correct Chairperson, and if you could just mark those annexures as exhibits handed in as ...(intervention) CHAIRPERSON We’ve got some annexures here, correspondence between the said firm of attorneys and the TRC, dealing with this aspect, which we will just number EXHIBIT B. MS LOCKHAT Thank you Chairperson. CHAIRPERSON Thank you. Mr Draht? MR DRAHT Thank you Chairperson. Mr Mpongosi, did you sign this statement dated the 12th of December? MR MPONGOSI There is one statement that I signed and it was sent away. I don’t know exactly which one statement you are referring to. CHAIRPERSON If you could show it to him, the one on page 92. MR DRAHT Is this your signature? MR MPONGOSI Yes. MR DRAHT Was this statement read to you before you signed it? MR MPONGOSI No, it was not read to me. MR DRAHT Mr Mpongosi can you please now tell us what happened on the 12th of February 1994 at Zevenfontein. MR MPONGOSI It was on a Saturday. I was coming from the Jukskei River, and I was just about to go past Magwaza’s shop, and before Magwaza’s shop you have a shop belonging to a so called one Mdadana, where I saw Mr Majola in the company of some people. I know two of these boys. There could have been six or seven of them in that group. And as I was going up before I could reach Magwaza’s shop Majola came carrying spears and machetes. MR DRAHT This Mr Majola, does he belong to any political party? MR MPONGOSI Yes, ANC. MR DRAHT So you saw a group of ANC people, is that correct? MR MPONGOSI That is correct. MR DRAHT With what did you say they were armed? CHAIRPERSON Spears, bush knives or machetes, same sort of thing. MR MPONGOSI Yes they had spears and machetes as well as knopkierries. MR DRAHT And then what happened? MR MPONGOSI And as I was going past them, it could have been a distance after I passed them, and Majola started attack me with a knopkierrie, and I ran away. MR DRAHT How did he attack you? MR MPONGOSI When I approached they were at the shop and as I was walking past the shop he came out from Mdadana’s shop and came right to me, and he realised that I was running and he started hitting me with a knopkierrie and I went to the corner of Magwaza’s shop. MR DRAHT Where did he hit you on your body? MR MPONGOSI He hit me on the back. MR DRAHT How many times? MR MPONGOSI No, he actually threw this knopkierrie once because I was running away. CHAIRPERSON Sorry, were you alone? MR MPONGOSI Yes, I was alone at the time. MR DRAHT Continue. MR MPONGOSI When I turned a corner at Magwaza’s place I came across Zwane and he was sitting there at Magwaza’s shop and he was in the company of the boy from Sithole family, and I said to him. "...would you please accompany me to Sithole so that we could see these ANC people. Majola had just attacked me. I would like for him to explain why." We then left, my Dizwane and another one, there were three of us. We went through Skosana’s shebeen because that was the route we had to take, and we went right up to the sports field towards Sithole’s house. The house was on the other side of the sports field, further up. And when we arrived there I narrated this story to Sithole and I requested him to try and locate the ANC leadership and try and find out why Majola was attacking me. It was myself and the Sithole boy. I then left, and Sithole promised that he was going to ask them. Myself and these other two then left. MR DRAHT Mr Mpongosi, what time did this happen? What time on the 12th? MR MPONGOSI I did not have a watch on, but it was during the day. It could have been around twelve or past one, thereabouts. It was quite cloudy, but yes, that is my estimation. We then left Sithole’s house, myself and in the company of these other two men. We walked through the sports field and shortly as we left Mr Sithole’s house this group of people came. Instead of asking what was happening they approached with spears in their hands. I think it was Dustin’s brother, bear with me, I’m not sure of their names, I just know their surnames. He was Dustin’s brother. MR DRAHT How many people was in this group approaching you? MR MPONGOSI They could have been six or seven, and we were three. MR LAX Just sorry to interpose Mr Draht. Where was this, Mr Mpongosi? MR MPONGOSI You mean the beating, the fact that I was beaten? CHAIRPERSON No, when you came across Dustin and the six or seven when they had spears, where was it, let’s say in relation to the sports field? MR MPONGOSI I was in the middle of the sports field, having come from Sithole’s house. I was in the middle of the sports ground, and they had come from the shacks that were further up the grounds or at the end of the grounds. They came with machetes, axe, and spears, and they had a blanket rolled around their forearm to use as a shield. And we started asking one another as to what was happening, and there’s one among them who said, "...Do you still want to talk?" And I said, "...Please do not get nearer", and Zwane supported me. And as they were getting closer I put my arm into my pocket and I didn’t have a firearm at the time, and at that moment Zwane shot, a missing shot, and they fled back towards the direction from which they came, and we went further down towards Magwaza’s place. And when we arrived at Magwaza’s place ...(intervention) MR DRAHT Sorry, to, could you see to who Zwane directed the shot? MR MPONGOSI He was shooting towards the ANC, but he was targeting them directly, he just fired a deliberate miss. We went down towards Magwaza’s place, and we realised that these people were intent on fighting and we requested that he should consult everybody that belonged to the IFP and summon them down to Magwaza’s place. And I also left, my house was further up but on the side. I went to my place, picked up my firearm, and came back to Magwaza’s place. And we sent some boys from the Magwaza family to summon everybody to that spot because we had realised that these people were bent on fighting. The group accumulated until we were a big group, but Magwaza was not there at the moment, he had gone to town. There was only a few of us in the shack. And we waited until Sithole arrived. He joined us in the waiting. And after a while, the time was now around four or five o’clock in the late afternoon, but which Magwaza came. He was coming from town. And the group was growing around his shop. And when he came, and as we were narrating the story to them they then explained that we can see the ANC coming. MR DRAHT Mr Mpongosi, who explained to you? You say they explained, who explained? MR MPONGOSI Magwaza. He explained that yes we can see these people, they are coming, it looks like they are armed with spears. They outnumber us. And we were talking and we realised that it was now getting difficult. Magwaza went into the house, came out with a firearm and gave it to Sithole, and he had his own. We were talking, arguing there at that point, suggesting that instead of these people reaching us here, because we had children around, we suggested that we should move out and meet them at the grounds, we should not allow them to get nearer, they will injure us, the women and the children. And the Jukskei River was full, it was not safe. We should die in the battle, let us go and face them. Indeed, we went to the sports grounds and they kept on coming. We could see them. They quite outnumbered us. They had arrived. And we realised that, or should I say we went towards the end of the grounds. MR DRAHT The group you are referring to now as they, is that the ANC group? MR MPONGOSI Yes, the ANC group that was coming. We were on the upper end of the sports field. They actually started shooting from a distance. MR DRAHT How many shots did they shoot? MR MPONGOSI They did not shoot once, they shot several times incessantly, there was a brief pause, and they continued, and they also pelted us with stones. MR DRAHT Could you see in whose direction did they shoot? MR MPONGOSI They were shooting at us, because they were shooting such that they also hit the shacks which we were using to hide. By that time we had fled. We had left the grounds and we were lying down around the shacks, and they were up there. And it dawned on us that these people were indeed fighting. MR DRAHT Did they do anything else except shoot? CHAIRPERSON He said they pelted them with stones. MR DRAHT My apologies, Mr Chair. MR MPONGOSI Yes, they were shooting us and pelting us with stones at the same time. And when we scattered, we dispersed, trying to avoid the stones and the bullets, using the shacks as shield. And after the shooting, there is one guy who was next to me who suggested that these people had run out of ammunition, let us attack them. We shot back, such that they ran away. There’s one other group that meant to come and attack us from the side. That group disappeared too. We fired at them such that they fled. MR DRAHT Who in your group fired at them? MR MPONGOSI After they had fired, we also fired. I was shooting as well. MR DRAHT How many shots did you fire at them? MR MPONGOSI I had a fully loaded 38, and it could load six. I exhausted all the six rounds of ammunition. MR DRAHT And did you direct your shots directly at them, at the group? MR MPONGOSI Yes. MR DRAHT Did you see anybody else in your group firing? MR MPONGOSI Yes I saw some people who were shooting. MR DRAHT Do you know their names? MR MPONGOSI Yes. MR DRAHT Who were they? MR MPONGOSI Zwane was shooting, he was shooting from behind a shack, but I could see him. But I could hear that he was shooting from his spot. And insofar as Sithole is concerned I saw him going into a shack that was roofed, a shack that was still under construction, and he apparently was shooting through the window, and Mbatha was on the other side of Sithole and I could see him shooting as well. Magwaza was far away from me and I could not tell whether he was shooting or not, but yes I did see him with a firearm. MR DRAHT At that stage could you see anybody was struck by the bullets? MR MPONGOSI I was shooting at this group of people. The one person whom I saw falling down is one. We were running and I saw him fall down, and when I went through the other side of the shack I saw one body that was lying down, and I was pursuing this one group that was carrying an injured person, a group that was running towards the PTA offices. I was trying to pursue them. MR DRAHT Why did you try to pursue them? MR MPONGOSI I was pursuing them because we have a quarrel with the ANC. They wanted to kill us and so I wanted to kill them as well. MR DRAHT What happened then while pursuing them? MR MPONGOSI I pursued them and just before they arrived at the PTA place, even ‘though it was a distance from that place, there was one voice that beckoned me back, saying, "...Leave them alone, they had fled now." I came back. And when I came back another group of our people was gathering at Magwaza’s place. I was coming in the company of others. MR DRAHT What happened then? MR MPONGOSI At Magwaza’s place we gathered, even ‘though we had dispersed earlier on as the shooting was continuing, we sat down and it was dusk at the time. One could only see silhouettes of people from a distance. And it started raining and we had to take cover from the rain, but we had an argument as to how many of us were injured, or how many of them were injured, and some were saying these people are still coming back. And we decided to wait because we feared that they might come back. We sat down. MR DRAHT Where did you sat down? INTERPRETER Would you please repeat the question. MR DRAHT Where did you sat down? MR MPONGOSI We sat down at a place that is an open space. It is not a sport field, around some shacks, it’s a space between shacks. We did not get into the shack but we just stayed outside. And as we were sitting there a Hippo came. I’m referring to this very big police vehicle, the army vehicle actually. I then left for my place. And it became clear that the police were surrounding our group, arresting them. I went to my house and only came back the following morning to establish how many of us were arrested, and I learned that a number of our group, or people in our group, were arrested the previous evening. And I was made to understand that there were many IFP members who were still to be arrested. And I learned that these people, ANC people, had vowed to come back and continue with their attack. We had to come together again and wait. And as we were waiting soldiers arrived in a helicopter. And when we went down to the shacks near Jukskei River, that was on a Sunday now, that is where we were arrested and brought to the shop, Magwaza’s shop, where we were ordered to lie down. We spent a while there, people were milling around, we were then taken into vans. Sithole and others came at the time when we were at the sports field. Sithole, Mbatha, were also arrested, I presume at the river, and we were taken to a place called Kew near Alexandra. MR DRAHT Mr Mpongosi, how many people were approximately in the IFP group? MR MPONGOSI You talking about people who were arrest, or? CHAIRPERSON At the time of the shooting on the Saturday, when everybody had gathered at Magwaza’s place. What was the size of the IFP group then? MR MPONGOSI That will be difficult for me to say, because I was so infuriated but yes, I must give an estimation. I cannot be sure, they could have been thirty-something to 40. That is my estimation. I am not certain about that because it was quite busy. MR DRAHT Sorry Chairperson, Mr Mpongosi how many people was before the shooting in the ANC group? MR MPONGOSI They were so large in number, such that I cannot even begin to estimate, but yes, they were many. They could have been two big groups, two very big groups. MR DRAHT You said that the IFP were about 40 persons. How many times the IFP group, would the say the ANC group was? MR MPONGOSI We could have had to be many many times in a group to equal the ANC. Maybe three times. MR DRAHT The firearm you had in your possession, was it your firearm? MR MPONGOSI Yes, it was my firearm. MR DRAHT Did you have a licence for that firearm? MR MPONGOSI No I did not. MR DRAHT Where did you get it from? MR MPONGOSI I had bought it had Zevenfontein. I had had it for days, at the time. MR DRAHT Can you remember from who did you buy it? MR MPONGOSI There are Shangaan boys who came. I used to refer to them as Sambonani. CHAIRPERSON Why did you buy it? MR MPONGOSI Around those days it had become apparent that we would end up fighting, because there was fighting between the IFP and the ANC all over the place, that each one of us had to prepare themselves. MR DRAHT How much ammunition did you have with you? MR MPONGOSI I had six loaded, but I did not have enough. I had six loaded and four extra. MR DRAHT What type of firearm did Mr Sithole shoot with? MR MPONGOSI I noticed that he had an AK, because of the barrel. MR DRAHT Can you remember how many persons were injured that day, from the ANC side? MR MPONGOSI I have no certainty, I only learned well whilst we were at Morningside at the police station where I was informed that four people were injured, actually four died, and seven of them were injured during the fighting. This was confirmed at the police station. MR DRAHT The person that you referred to earlier on being shot, the person that fell to the ground, did you know him? MR MPONGOSI No, I knew the ANC, but I didn’t know the names of the people. I just knew them by sight. I just knew him by sight. MR DRAHT That will be all Mr Chairperson. NO FURTHER QUESTIONS BY MR DRAHT CHAIRPERSON Thank you Mr Draht. Mr Claassen do you have any questions? MR CLAASSEN Thank you Mr Chair, just maybe a single aspect. I do not want to inconvenience the Committee, it’s just something I would like to perhaps clear up with ...(intervention) CHAIRPERSON Certainly, you’ve got the right to do so. MR CLAASSEN Mr Chair if I could just approach you, without even ...(intervention) CHAIRPERSON Approach. Mr Draht? MR CLAASSEN Pardon me, Mr Sithole. CHAIRPERSON Oh Mr Sithole yes. MR CLAASSEN Mr Sithole yes, that is correct. Something was just said about him, which I would just like to get some clarification on if I may. CHAIRPERSON Yes, certainly. MR CLAASSEN Thank you Mr Chair. That’s cleared up, I’ve got no questions for this witness. NO QUESTIONS BY MR CLAASSEN CHAIRPERSON Thank you Mr Claassen. Mr Cachalia, do you have any questions? CROSS-EXAMINATION BY MR CACHALIA Mr Mpongosi you told us about what had happened on the Saturday morning as you were coming from the Jukskei River. And your confrontation with Mr Majola. And then you told us about a meeting with the people on the sports field, with spears and whatever else they might have. When was the first confrontation with the Majola incident when you were coming up from the Jukskei River? MR MPONGOSI I did explain that, that this happened to me and Majola, or what happened to us, or maybe I don’t know the time but it was not too far apart. MR CACHALIA Coming up from the river first happened and then you met the people on the sports field. Am I right? MR MPONGOSI You mean coming from the river? MR CACHALIA I’m just trying to establish the sequence of events, this is what you’ve told us in your evidence-in-chief. You first told us about your on the Saturday you were coming from the Jukskei River you were going up to Magwaza’s place there was a problem with a with a Mr Majola at Majetani’s shop. You said this is around twelve or past one, then you talk about the meeting at on the sports field. Now was that after you had had the problem with Majola? MR MPONGOSI We’re already done at Majola’s, in other words the Majola issue comes first. Then the ground or the soccer field event follows the Majola. MR CACHALIA That’s what I was suggesting that that is because it was in a sequence its it was second. What time was that about Mr Mpongosi? MR MPONGOSI As I said, it was not too long after that had happened. I don’t know exactly as to what time but my estimation will be around past eleven, because I did not waste time at Zwane, we hurried to Sithole’s. I did not have any watch, or I don’t know the time. MR CACHALIA Clearly that would be incorrect because you said that ...(intervention) CHAIRPERSON No I think what he’s saying Mr Cachalia, he estimated first of all between twelve and around one, and now he’s estimating between, let’s say eleven. He said it was overcast and he’s estimated, but we know the sequence. It was first Majola and then Justin and the group on the field, but we know that it was on his estimation some hours before five o’clock in any event. MR CACHALIA Now Mr Mpongosi the person you referred to as Justin, is that the Dastile, the chairperson the ANC that you’re talking about, or is it his brother who is sitting next to me? MR MPONGOSI It was the brother, the late. MR CACHALIA He was the person you met with six or seven other people on the sports field? MR MPONGOSI Yes. MR CACHALIA And they were armed. MR CACHALIA And you say that you asked them not to approach you and there was a shot fired and they ran away. By your companion ...(intervention) CHAIRPERSON That’s what he said. He said that. I don’t think we need to get him to confirm it. ...(inaudible) INTERPRETER The speaker’s microphone is not activated. MR CACHALIA I am saying that this sequence of event about the sports field with the late Mr Dastile is the first time that we’ve heard it even from you and from any of the other applicants. It has never been mentioned before. Do you agree with that? MR MPONGOSI Well it’s my first time tendering evidence here. This is why now I want to tell you about what happened to me and things I did myself. This is in relation to me. MR CACHALIA You reported that to Mr Sithole, is that right? MR MPONGOSI The people who approached from the other direction, I was already coming from Mr Sithole ...(intervention) CHAIRPERSON Mr Mpongosi the question is, did you report that confrontation you had with, the late Mr Dastile on the sports field to Mr Sithole. That is the question. The answer is a yes or a no. MR MPONGOSI I never went back to Sithole. I went downwards to Magwaza’s house or place. MR LAX The question was not did you go back to Sithole’s house and report to him. Did you report it to Sithole at any time either before or after the incident? MR MPONGOSI I already reported to Sithole. MR LAX You’re missing the point. MR MPONGOSI This issue had not yet happened at the time you reported to Sithole. We’re talking about the point at which you were attacked by the second group in the middle of the sports field, when Zwane fired a shot which then dispersed those people. After that point in time, did you report it to Sithole, or Magwaza, or someone else for that matter? CHAIRPERSON The question was did you report it to Sithole? MR MPONGOSI No, I did not report to Sithole this incident. MR CACHALIA Mr Sithole was your induna, is that correct? Sorry, may I proceed? Mr Sithole was your induna, is that right? MR MPONGOSI Yes. MR CACHALIA You did meet him later in the day. MR MPONGOSI Yes. MR CACHALIA And you did not consider it appropriate to inform him about that? MR MPONGOSI Something is disturbing me here. I had said at first these people met with me when I was Sithole to report about my assault. And these people approached from the soccer field and they came to me. As they were approaching, very close to me, Zwane shot. And I had also commanded them not to come closer to us because we wanted to establish something here. I never thereafter went back to Sithole because those people when they fled they fled towards Sithole’s, and we went then the opposite direction. MR CACHALIA I’m sorry Mr Mpongosi but you are just repeating your evidence and what we are saying is that we are aware you were at Sithole’s place this incident happened, I asked you if you had met Mr Sithole con, subsequently on that day and I think you said yes you did meet him. Is that correct? MR MPONGOSI Yes. MR CACHALIA Now if you did meet him, you did not report you did not report what had happened at the sports is that what you’re saying now? MR MPONGOSI No, I did not report to him what happened at the soccer field. MR CACHALIA Did you report to anybody what had happened at the soccer field, that is any of the other applicants, or Mr Magwaza, or anybody else in the IFP? MR MPONGOSI I would like to explain this, Magwaza, at that point in time, before he came back from town, I would have reported to him, and ended up reporting to Sithole. I did not get hold of Sithole until afterwards when he joined us down there after seeing this eruption of a fight. CHAIRPERSON I think it’s clear that he didn’t report it to anybody else. Did you report it to anybody else? It’s a simple question, Mr Mpongosi, could you please just listen to the question and answer it. Did you report that incident with the late Mr Dastile in the middle of the soccer field with anybody else? MR MPONGOSI I did not report the soccer field incident. MR CACHALIA I have put it to the previous applicant about what the Judge in the Court had found about the improbability of ANC members having firearms. Did you hear that? MR MPONGOSI Yes I heard you mentioning that. MR CACHALIA I want to put it to you that none of the ANC members who were there at the incident on that day had any firearms. MR MPONGOSI May I be given this opportunity to say this? I was there, I was present, I did not see any firearms but I heard the gunshots from the ANC side, and the pelting of stones as well. MR CACHALIA I’m sorry I don’t want to repetitive but I just want to also put to you that if they had fired several shots and you go on to say that it were at a stage you were told they had run out of ammunition, none of the IFP members were injured or killed as a result of a bullet wound. Is that right? MR MPONGOSI I did say that. In actual fact, the ANC group when they were shooting we hid behind the shacks and they continued shooting. We were hiding behind the shacks, hiding from this attack of stones and shooting. I know, and I am also reiterating the fact that they started shooting. MR CACHALIA That also Mr Mpongosi is the first time that we’ve heard that you took refuge behind shacks, waited until they ran out of ammunition and then started shooting because we were told her at this particular hearing that when the shooting emanated from the ANC group you fell to the ground then got up and shot and there was no question of taking cover behind shacks that’s the first time we’ve heard that, is that correct? MR LAX Mr Cachalia it’s not one hundred percent strictly correct. There was a witness, I think it was Mr Sithole, who spoke about taking cover. He didn’t specify what sort of cover it was, but he did say "...we took cover." But only one of them said that so far, so it’s not entirely correct, but the gist is alright. MR CACHALIA You’ve heard what, sorry, you’ve heard what the Committee Member Mr Lax has said in this matter. Do you wish to respond to that, to the suggestion that I put to you, having regard to what Mr Lax has just said? MR MPONGOSI I say what, we did exactly that. We did not throw ourselves on the ground or ...(indistinct) like that. They also meant, I think, to say they took refuge and his up behind the shacks or the houses. MR CACHALIA You’ve told us you bought a gun some time before. Please just to confirm to me how long before this day of the 12th of February did you buy the gun? Was it days, weeks, months? I’m sorry I wasn’t very clear as to what you said. MR MPONGOSI I think it was in December. It was around November because by the time it was December I already had the firearm. The previous year. MR CACHALIA And, well you have told us that at that stage already you were aware that there was going to be fighting and you were preparing yourself. Is that right? That is what you said, isn’t it so? MR MPONGOSI Yes. MR CACHALIA What had happened to give you an indication that there was going to be fighting? MR MPONGOSI I said for me to want a firearm, it was apparent, being apparent that IFP and ANC will be involved in some kind of war or fight. We had to be vigilant, and very alert, so that whatever happens, or whatever violence or fight that may break we will be aware and alert. MR LAX Yes the question was ...(intervention) ADV SIGODI He went further. The applicant went further than that. He mentioned that there was violence throughout the country between the ANC and the IFP. CHAIRPERSON Which I think we can accept as being the position. Not throughout the country, but widespread violence. MR CACHALIA Thank you Chairperson I think in fairness to him it is appropriate that this difference is brought to our attention. I am saying what had happened in Zevenfontein to make you believe there was going to be fighting between the IFP and the ANC? MR MPONGOSI At Zevenfontein we were together with the ANC and that means we knew each other very well, that means the two groups. Each time there would be problems we will solve those problems in a very amicable way, but now things began to change. MR CACHALIA Please tell me how did they change, sir. That’s the question. How did they change in by end of November beginning of December when you had acquired this weapon? MR MPONGOSI Even before I acquired this firearm we would be having differences and we will solve those differences. MR LAX No the question Mr Mpongosi is, in the light of the fact that you solved your differences in that way, what had changed in Zevenfontein, to make you want to get a firearm? Do you understand the question? We know you had an amicable arrangement up until that point in time, so what was different? Why was it necessary to get a firearm? That’s the question you’ve been asked. MR MPONGOSI It is because I knew very well that I was an IFP member and the way the fight had intensified in this country between IFP and ANC it was necessary for me to acquire a firearm to have in my possession for the purpose of defence. MR CACHALIA May I put it to you lastly Mr Mpongosi, that nothing happened in Zevenfontein to give you the impression that there was going to be any fights breaking out or any war erupting between IFP and ANC members because you had always sorted it out peacefully previously. MR MPONGOSI The solving of problems would be leading to a fight. One can tell that something is brewing in this whole thing. One could tell the result or the consequence still of this problems being solved, that they will lead to a fight. MR CACHALIA I’ll leave that one at that particular state Mr Mpongosi I’m going to. You said that at a particular stage you took your firearm and went to Magwaza’s house. Is that correct? MR MPONGOSI Yes. MR CACHALIA This was after the incident on the sports filed where Mr Dastile was fired at by your companion and after that you took your gun and went to Mr Magwaza’s house. CHAIRPERSON Yes, that’s so, you can carry on. You don’t have to wait. MR MPONGOSI Yes. MR CACHALIA Why did you think Mr Mpongosi, that there was going to be any trouble because you had already chased away the Dastiles, Mr Dastile and his group, sorry not the Dastiles. MR MPONGOSI I had said that I saw those people with spears in their possession, and the assortment of weapons. When I took the firearm it was a result of this. I also could tell that they were not necessarily running away absolutely from us, they would come back, one time around after this. MR CACHALIA I want to put it to you that there was no reason for you to take your firearm at that stage and go to Magwaza’s place. MR MPONGOSI I will relax and sit back and not go and get my firearm as well, after having seen the way they were armed, the ANC group that is. MR CACHALIA Did you, sorry, my apologies sir, did you tell Mr Sithole about the incident with Mr Majola at the Madadani shop at any stage. MR MPONGOSI Yes. CHAIRPERSON He said so in his evidence-in-chief. That is why, in fact, he went to Mr Sithole, specifically because of that. MR CACHALIA Mr Sithole had not indicated any of that incident to us when he gave his evidence. MR CLAASSEN Mr Chair if I may. I believe it was indicated. I refer specifically to the bundle at page 29. I do not recollect if he specifically named Mr Mpongosi’s name, but you’ll notice at paragraph 5.3 he says that "...I heard a noise outside and people shouting each other. Mr Zwane arrived with approximately four to five IFP members. They knocked at my door and asked what was happening. The men informed me that ANC members were attacking them." Now it is my presumption that that is in reference to the incident Mr Mpongosi’s talking about today. CHAIRPERSON That’s my recollection as well. I’ll just check my notes. Yes my, don’t know if this is the right place, they said they were being attacked by ANC. I told them to go to my brother’s shack. MR LAX No that was in the night. CHAIRPERSON That was the night before, sorry. Oh yes then he says at 3 a.m. I heard toyi toying. MR CACHALIA Further down I think ...(inaudible) Mr Claassen brings to our attention. CHAIRPERSON I’ve got here at one p.m. ...(inaudible) INTERPRETER The speaker’s microphone is not on. CHAIRPERSON Zwane and M with a question mark. I think it was probably Mpongosi came and said ANC were attacking. ...(inaudible) CHAIRPERSON Yes so. ...(inaudible) CHAIRPERSON Not the first time. MR CACHALIA There’s a note that I just wish to discuss the matter with if you just will indulge me for a moment. Thank you sir. Mr Mpongosi there was a problem between yourself and some people at the Maloesi shebeen earlier. Do you know about, do you have any recollection about that? MR MPONGOSI I don’t know which time you are referring to now, or what you are referring to. MR CACHALIA The evidence that is going to be led is that you had gone to the shebeen of Mr Moloesi and that they refused to serve you there because of your because of whatever problems they had, and as a result of that there was conflict there and the parties arrived the two parties the ANC and the IFP arrived and attempted to sort out that problem. CHAIRPERSON Sorry, when was that approximately in relation to the date of the incident? MR CACHALIA It was on Saturday Chairperson, before the incident. CHAIRPERSON The 12th, the same day of the incident, that very same day, the Saturday? Mr Mpongosi there’s going to be evidence we’re told that there was a dispute involving yourself at Moloesi’s shebeen, which had to be settled between the leaders of the ANC and the IFP, the local leaders. MR MPONGOSI There is some difficult here the way they explained or said it in Court. What I know with regard to Moloesi and the problem thereof, was that I went to Moloesi and said to him, "...how come, Mr Moloesi you say this shebeen of yours you only want the ANC people in it and patrolling it, and that will create some problems between ANC and IFP." But that did not happen on that Saturday, that happened previously, Friday. I think you are mixing up issues here. This did not happen that day. CHAIRPERSON You say Friday, you’re saying the day before that Saturday, or the Friday before that even? When you said previous you put your hand forward. Which Friday, was it the Friday just the day before? MR MPONGOSI ...(not translated) No not the one, on the 11th, not that Friday, the previous. CHAIRPERSON The 4th? The previous Friday, not the 11th, the Friday before, the 4th? MR MPONGOSI Yes. MR CACHALIA Mr Moloesi, sorry Mr Mpongosi, it was suggested that, sorry, evidence is going to be led that at about four o’clock on the afternoon of the 12th of February 1994 a lady by the name of Boniswa and another lady by the name of Sister, explained about you and your ...(indistinct) assaulting them at the Moloesi’s shebeen. MR MPONGOSI You see that assault story is the first time I hear that. Even way back in Court I did not hear that. This my very first encounter with that knowledge. I never done that. MR CACHALIA They will say that you were accompanied by Mr Sithole, and that’s not Mr Sithole the applicant, another Sithole, and you, they, that they were smacked and there was pouring of beers over their heads and there was a general misbehaviour at the shebeen. MR MPONGOSI I will dispute that. We have TPA policemen and they will arrest people and take them to Randburg should any problems exist. You see I don’t like this lie or these lies that keep coming and diluting this truth. MR CACHALIA You like the lies that you gave to the Court in the High Court. You don’t like lies, is that right Mr ...(intervention) MR LAX Sorry Mr Cachalia, really. Let’s not get bogged down in this. Let’s move on. We’ve had an explanation for what that was all about. MR CACHALIA I’m putting it to you that it is rich coming from you that you don’t like lies. CHAIRPERSON Alright, we’ve noted that. MR CACHALIA Sir I’m just looking for the, yes, you’re saying that this issue was never discussed in the High Court, is that right? CHAIRPERSON He said even in the High Court it, he disagreed with it. MR LAX Never heard it. CHAIRPERSON He had never heard it before the High Court, yes. But he’s denied it Mr Cachalia and you say there’s going to be evidence about it. I don’t think we need dwell on it now and carry on getting a more protracted denial from him. MR CACHALIA Sorry just to put the, on page 103 of the judgement part of the page 103 of this bundle in the judgement the Judge talks about Mr Moloesi an ANC member testified that because of previous trouble with accused number five he refused to sell beer to him as a result of this the misconception was formed that there was discrimination against IFP members he testified etc. etc. I am saying it is not correct when you say that it was never discussed previously. MR CLAASSEN Mr Chairperson. CHAIRPERSON He said he heard it for the first time in the Court. Yes. MR CACHALIA Yes, then I. MR LAX His evidence to date is he never heard before about being involved and causing problems with two women, pouring beer over their head and assaulting them. That he’s heard for the first time today. He says the only trouble he caused was by going to Moloesi’s shebeen on Friday the 4th and complaining that they weren’t serving IFP members and that that was going to create problems in the community. Now, that’s all that’s on record so far in terms of what he said. MR CACHALIA Thank you very much Mr Lax I’m sorry I thought that he was disputing that he had never heard it before, and if he has said that this is in fact that he had heard it but it was a different manner then I just want to put one question, or manner to him, this evidence of, this item on page 102 leading page 103 is discussing issues on the 12th of February at approximately 18h00 in that vicinity. I am saying that you did go to Moloesi’s shebeen on that particular Friday according to the Judge and according to the evidence at Court. MR CLAASSEN Mr Chairperson that is not in dispute. CHAIRPERSON What’s not in dispute, that they had the trouble at Moloesi’s at six o’clock on Saturday 12th. He said he was there on Friday the 4th and he went there to query the tavern keeper about selling only to ANC people MR CLAASSEN I thought Mr Cachalia was referring to that incident on the 4th or Friday. CHAIRPERSON He’s referring to the one, this section on page 102 of the record in the judgment where he says that "...sometime in the late afternoon, probably six o’clock on Saturday 12th violence broke out on the spot." Oh that’s the actual incident. Whereabouts are you referring to? INTERPRETER The speaker’s microphone. CHAIRPERSON "This gathering was apparently result of an argument which had allegedly, something taken place in a shebeen." MR CACHALIA I’m saying ...(intervention) CHAIRPERSON Yes but that, that’s, I mean, that doesn’t INTERPRETER The speaker’s microphone is not on. CHAIRPERSON I don’t know what the missing line is but you know you sometimes can get a reaction to an incident on a day other than the day which, than the causing incident. It doesn’t mean it had to take place on the same day. They could have been fighting about something that took place a week before. MR CACHALIA As the Chairperson wishes, I will lead evidence about that particular matter, sir. Mr, sorry sir, that would be the last question that I have, sir. NO FURTHER QUESTIONS BY MR CACHALIA CHAIRPERSON Ms Lockhat? CROSS-EXAMINATION BY MS LOCKHAT Only one question. Why did Mr Majola attack you? What was the reason for the attack, do you know? MR MPONGOSI I did not know why he attacked me. I think the reason why he attacked me was due to the fact that I was an IFP member and in my mind, what occurred in my mind was that that was what they intended to do. MS LOCKHAT How did he know that you were an IFP member? MR MPONGOSI Myself, I know myself that I’m IFP CHAIRPERSON How did Majola know that you were IFP? MR MPONGOSI This is how I’ll put it. At that ...(indistinct) are we would know one another very well as to who is who and what political group is he a member of, so that we know, each group would know its members. The two groups knew very well who is a member of what group, and so on. MS LOCKHAT Thank you Chairperson. NO FURTHER QUESTIONS BY MS LOCKHAT CHAIRPERSON Mr Draht do you have any re-examination? MR DRAHT No re-examination Chairperson. NO RE-EXAMINATION BY MR DRAHT CHAIRPERSON Advocate Sigodi do you have any questions? ADV SIGODI I just want to ask one aspect on the issue of the firearms. Do you know if the IFP had collected money to buy firearms? In Zevenfontein. MR MPONGOSI Yes, because of the situation that prevailed at the time that necessitated us to collect some money and purchase firearms. ADV SIGODI Are you referring to a situation in Zevenfontein or are you referring to a situation elsewhere? MR MPONGOSI What occurred in other places elsewhere prompted us to deem it fit to buy or purchase firearms. ADV SIGODI Did you make any contributions to buy firearms at Zevenfontein? Did you personally make any contribution to buy the firearms for the IFP? MR MPONGOSI I donated R 20 towards that. ADV SIGODI Do you know if, to whom did you donate this R 20? MR MPONGOSI I gave it to Mr Magwaza and said he should give it to Ben. Ben who is the secretary. And I left it there. ADV SIGODI Did you check if any firearms had been bought by the IFP after you’ve made your donation? MR MPONGOSI No I did not check, but I laboured under the impression that Mr Magwaza as our senior he will tell us and inform us with such information. ADV SIGODI ...(inaudible) was it necessary for you to go and get your own firearm? If the IFP had this idea of collecting money for firearms for IFP people. MR MPONGOSI With regards to my firearm, I already had mine when that happened. CHAIRPERSON Mr Lax, any questions? MR LAX Thank you Chairperson. You only went to Sithole’s place once that day? MR MPONGOSI Yes, I went to Sithole’s once. MR LAX His evidence to us was that you went there twice, and in particular, and very importantly, once when there was a group of about 100 people that surrounded his house. His evidence was, it was the same group of people that left his house on the first occasion who then came straight back, because they saw this big group around his house. MR MPONGOSI I think he is mistaken the second time because I went there once. MR LAX ...(inaudible) Zwane, correct? MR MPONGOSI Yes. MR LAX There isn’t another Zwane involved in this incident. MR MPONGOSI You mean, are you referring to this group of us present here? MR LAX Your co-accused. MR MPONGOSI No, there is no any other Zwane. MR LAX Now, when you made this affidavit, I’m referring to the one at page 92 which you signed using your first name. MR MPONGOSI Using the first what? MR LAX You see that? MR MPONGOSI Yes. MR LAX Who came to take that statement from you? MR MPONGOSI At first this attorney on the other hand came together with Msizi. And the second time it was himself the attorney, that is alone without Msizi. MR LAX ...(inaudible) attorney speak to you the second time? Did he use an interpreter? MR MPONGOSI He made use of the policemen in prison. MR LAX ...(inaudible) Msizi was present and the lawyer was present? MR MPONGOSI Yes. MR LAX And you remember that incident? It was in December of 1996. MR MPONGOSI Yes I do remember. MR LAX Now, what happened? Did they ask you questions? MR MPONGOSI I was talking, I was the one talking. MR LAX ...(inaudible) Did they ask you questions and you answered and explained what was the story? MR MPONGOSI They asked questions and I thereafter talked. MR LAX In reply to your questions they wrote down the answers? In reply to the questions and in reply to what you told them the answers were then written down? MR MPONGOSI Yes. MR LAX And at some point that was converted into a typed document, from handwriting to typing. MR MPONGOSI Yes. MR LAX Now, you said that this was not read back to you. MR MPONGOSI Yes. MR LAX Were you maybe mistaken? MR MPONGOSI No, I’m not mistaken. That was not read back to me. MR LAX Well why did you sign something that wasn’t read back to you? MR MPONGOSI He instructed me to sign. He was always in a hurry. He was hurrying somewhere. We did not have ample time at our disposal, so he was hurrying. I’m referring to the attorney. MR LAX The words that are written here, you say that you don’t agree with that? MR MPONGOSI I will not say I disagree with that. Maybe part of it I would agree with what is there and disagree part of it resulting to interpretation of the interpreter maybe. MR LAX He’s fluent in Zulu isn’t he? MR MPONGOSI Yes. MR LAX So how could he make a mistake interpreting what you said? MR MPONGOSI Sometimes it does happen that you tell one person, a person in this fashion and when he interprets it he puts it in another way, different way. That’s a common mistake, it happens also to me. Sometimes I will listen to a person thinking that I understand them to be saying what I think. MR LAX Well this statement says there was war against the IFP. And the ANC were putting up posters everywhere even on IFP shacks. This led to arguments. Is that true or isn’t it true? Is that what you said or didn’t you say that at all? MR MPONGOSI I did make mention of the fact of the posters, with regards to the posters, but the problem was when now they brought those posters and pasted them on our shacks, now that created a problem, pasting those posters on our shacks, the IFP shacks that is. MR LAX Was there a war at that stage that the posters were put up? MR MPONGOSI When these posters were brought up the IFP youth followed after and removing these posters. Now that brought some arguments that led to the fight. That’s what I said, or I’d written. MR LAX What you meant to say. MR MPONGOSI Yes. MR LAX But you’re aware that the ...(indistinct) posters was resolved by discussion between Sithole and the ANC leaders. MR MPONGOSI I was far away. I saw him together with some youth or some boys, that’s Sithole. I did not know whether they were arguing, and over what if they were. But one could tell that there is some argument taking place there. I don’t know whether they resolved the problem or not, but I could see that some argument had ensued as a result of those posters. MR LAX Who announced that the IFP youth brigade and the ANC youth league were in conflict? Who announced that? MR MPONGOSI It was not announced, but it was my opinion that these two, these people were fighting or were arguing. MR LAX It wasn’t actually announced, you just understood that there was conflict? MR MPONGOSI Yes, because I could see that they did not like what was happening. MR LAX Now you don’t say anything in this statement about what you did about, what steps you took, all you say is that you apply for amnesty because you’re a victim. CHAIRPERSON That also applies to your application form. You don’t mention that you fired shots at the other group, that you personally may have killed or injured somebody. MR LAX Wasn’t the purpose of this affidavit to explain what you had done, to tell the truth, as you said. MR MPONGOSI Yes that was the purpose of the affidavit, to tell the truth or to expose all the truth, but when I was doing this affidavit I had not fully or well, been well informed about his amnesty procedure, as to who to go about filling the application forms for the amnesty. That confused us a great deal and that brought some disturbance to me as well. But then I told myself that when this goes through I will therefore be afforded an opportunity to explain word for word. MR LAX But you see your colleagues said that when Msizi came you were all together, he explained to you the process, he explained to you what was needed to be said, and then you filled out the forms. Didn’t he do that? MR MPONGOSI We were with Msizi and we did that, but now he did not explain it well. MR LAX Well if you weren’t sure why didn’t you ask him some more questions? MR MPONGOSI we did not know how to go about filling this application form we, all what we were trying to do was to be able to get this application form carried and forwarded to the Commission. As to the other things, I told myself that I’ll furnish them in front of the Commission. MR LAX One last aspect. You - Advocate Sigodi asked you about the collection of these monies, when were these monies collected? MR MPONGOSI You mean the Zevenfontein? CHAIRPERSON For the guns at Zevenfontein, yes. The time that you gave the R 20. MR MPONGOSI You would leave either that money to Ben or Magwaza and leave and it will, the responsibility will lie entirely ...(intervention) CHAIRPERSON The question was when did that happen? When, what date, what month? MR MPONGOSI I donated that money after December coming back from home. That will be January. I don’t know the date or the day but I know it was in January after I returned from home. MR LAX Thank you Chairperson. CHAIRPERSON Just very briefly Mr Mpongosi, would you, would I be correct to say that you were a very staunch IFP supporter, almost to the point of being an activist? Why I say that is because from yourself, you say that you went to the shebeen and joined issue with the owner about who he should serve, you purchased a firearm for political reasons you say, you donated money for the purchase of firearms. Were you a very staunch active supporter? MR MPONGOSI Yes, I was a staunch member. CHAIRPERSON On the ...(indistinct) you were angry, were you? MR MPONGOSI No, yes, I was very angry because of what happened, because of the condition. CHAIRPERSON Because you got your rifle, I mean your firearm, without anybody asking you to fetch it. You just did it on your own volition. Is that correct? MPONGOSI Yes I went to collect the firearm out of my own volition because of the situation. CHAIRPERSON Thank you. Mr Draht any questions arising? MR DRAHT No questions Chairperson. NO QUESTIONS BY MR DRAHT CHAIRPERSON Mr Claassen? MR CLAASSEN Thank you Mr Chair, no questions. NO QUESTIONS BY MR CLAASSEN CHAIRPERSON Mr Cachalia? MR CACHALIA Thank you sir, no questions NO QUESTIONS BY MR CACHALIA CHAIRPERSON Ms Lockhat? MS LOCKHAT No questions, Chairperson. NO QUESTIONS BY MS LOCKHAT CHAIRPERSON Thank you Mr Mpongosi, that concludes your evidence. WITNESS EXCUSED CHAIRPERSON Mr Draht? MR DRAHT Chairperson there’s no other witnesses that I, that we would like to call. CHAIRPERSON Is that the case for your applicants? MR DRAHT That’s correct. CHAIRPERSON Mr Cachalia? MR CACHALIA Thank you Chairperson, I call Mr Dastile. CHAIRPERSON I think they’ll have to get another microphone if you change. I suppose he can sit there. Yes. Please tell me your full names. MR DASTILE Sindisile Wilford Dastile. Yes. CHAIRPERSON Do you have any objection to taking the oath Mr Dastile? SINDISILE WILFORD DASTILE (sworn states) CHAIRPERSON Mr Cachalia. EXAMINATION BY MR CACHALIA Mr Dastile, in December of 1993 and before this incident in 1994, were you a member of any political organisation. MR DASTILE Yes. MR CACHALIA Which organisation is it? MR DASTILE ANC. MR CACHALIA How long have you been a member of the ANC? MR DASTILE Since 1994, I’m mistaken, since 1990. MR CACHALIA Mr Dastile I think it is common cause that your brother died in this particular incident on the 12th of February 1994. Is that right? MR DASTILE Yes. MR CACHALIA Now was, did you suffer any injuries? MR DASTILE Yes. MR CACHALIA Where did you suffer an injury? MR DASTILE On the neck. MR CACHALIA How did that injury happen? MR DASTILE I was shot at. MR CACHALIA We’ll come to how you were shot at at a later stage. Just tell me Mr Dastile very shortly, in December of 1993, before the people left on their holiday, what was, did anything take place there in the particular area where you’re living in Zevenfontein in relation to the land and allocation and shacks? MR DASTILE Yes. MR CACHALIA Tell us what happened. MR DASTILE What had happened before we left, it was to remove, or have the people who were right next to the electric wires be moved and those were right next to the river in case the river overflows there will be problems, so they had to be moved from that particular area to another spot. MR CACHALIA ...(inaudible) to higher ground? MR DASTILE Yes. MR CACHALIA On your return in 1994, or on Thursday the 10th of February, did anything take place on that particular day in relation to this? MR DASTILE Yes. MR CACHALIA Tell us what happened please. MR DASTILE We were allocating land to some people there in the upper ground, ...(intervention) CHAIRPERSON Before you proceed, who’s we? We were allocating, who, who’s we? MR DASTILE We were the leaders of ANC I’m referring to. After allocating land to people, one lady came, and this particular lady was an ANC member. After some time we discovered that she became IFP member. After she came to us requiring some land, my brother, who was chairperson of ANC at the time, requested her to go to Sithole and to Zwane and it will be up to them and she will give them the go-ahead for her to join us, or the people in the new allocated area, and after that she will be allocated some land. This lady as to what she said to Mr Sithole and Zwane, went and said Dastile said it’s only ANC in that area, no IFP. That’s what she relate now to the two gentlemen, in turn. Now that made Mr Sithole together with Zwane and Magwaza, as well as Mr Sikubu, came to Dastile to find out and canvass that further with him, the chairperson of ANC. He did and attempted very hard to explain this position that it is not how he had said it to the lady, and that’s not how ...(intervention) MR CACHALIA You said, came to your brother Dastile to discuss this particular issue. Was your brother alone or was there other people with him? MR DASTILE We were present as well. Myself I was there. We’re building, we were building my brother’s shack. MR CACHALIA Who was the other people that were present? Please tell me. It was your brother, yourself, who else was there? MR DASTILE It was my brother, myself, Maxine April and, Maxine April with ...(indistinct) and Maxine’s brother. Continued allocating the land to people as these other gentlemen arrived. They joined now into this meeting because Mr Dastile was calling them to stop what they were doing, measuring and taping, measuring the land. They had to stop and respond to the call of my brother. And it was that group. MR CACHALIA Mr Dastile, I just want the general summary of what happened, it is not very relevant just to get the background of the matter. You and your brothers and the other persons mentioned met Mr Sithole and the other person, Zwane and Mpongosi to discuss the issue of the allocation of land. That was on the 10th of February, is that right? MR DASTILE Yes. CHAIRPERSON Sorry, he didn’t mention Mpongosi. It was Magwaza, Sithole and others, ...(indistinct) his name. MR CACHALIA As a result of that particular meeting did you arrange anything with the IFP members? MR DASTILE Mr Sithole said this is a quest for concern and we have to sit and discuss this further. There’s going to be an ANC committee and the committee that was the civic committee, committee that acted as civic committee had to be prepared to attend this meeting in light of solving this problem. MR CACHALIA ...(inaudible) was to meet the ANC committee meet. With whom must they meet, with the IFP or with the community in general? What was the position please? MR DASTILE All the committees, in other words only the committees, civic, ANC and IFP. We went to meet right next to the container next to, which as located towards Binkie Moloi’s house or next to Binkie Moloi’s house. MR CACHALIA Then, after that on Friday, the next day ...(intervention) MR LAX Sorry Mr Cachalia, where was this, when was this meeting to be? MR DASTILE This meeting took place Thursday afternoon. CHAIRPERSON That meeting, at that meeting you say it was then decided that the civic committee, the ANC committee and the IFP committee had to get together to discuss it. When was it arranged for that next meeting of the three committees? When was that meeting planned for? MR DASTILE It was going to be on that very day Thursday when we were discussing it or planning for the next meeting, the committee meeting that is. We met that very Thursday afternoon. CHAIRPERSON Wasn’t the meeting arranged for Saturday evening? Or late Saturday afternoon, five o’clock saturday? MR DASTILE Yes, that meeting was planned on the Thursday. CHAIRPERSON ...(inaudible) the meeting that was to take place at five, was that the meeting you’re talking about, between these Committees? MR DASTILE Let me try and explain something here, maybe you misunderstood me. When Mr Sithole came to us and talked to my brother and whilst we were busy building the shack, he asked about this, that lady that went to them and relayed some information to them. MR CACHALIA May I just try and assist? We don’t want to waste too much time Mr Dastile. On Thursday afternoon Thursday evening, whenever it was, that Thursday you met with members of the IFP, is that correct? MR DASTILE Yes. MR CACHALIA You arranged to meet again on Saturday. MR DASTILE Yes. MR CACHALIA What time were you supposed to meet? MR DASTILE At five o’clock. MR CACHALIA What was the purpose of meeting at five o’clock on Saturday? MR DASTILE It was to solve this shack problems and the posters of ANC that were torn apart by and destroyed by the IFP. MR CACHALIA ...(inaudible) MR DASTILE on Friday. MR CACHALIA So it couldn’t have, Thursday you couldn’t have discussed the question about that. Posters on Saturday. But please let’s just deal with the issues in sequence. On Thursday you met because there was a problem with the allocation of shacks on the designated land. Is that correct? MR DASTILE Yes. MR CACHALIA And you agreed to meet on Friday, or sorry on Saturday at five o’clock to discuss that particular position. Is that right? MR DASTILE Yes. When the ANC youth league put up these posters on Friday, members of the IFP youth brigade followed them from behind, removing and tearing these posters into pieces. And when we received this information from our members of the youth league we therefore saw it necessary to meet with Mr Sithole. MR CACHALIA ...(inaudible) not disputed Mr ...(inaudible) the matter and it was resolved in that he said that if necessary he will call the police to put the IFP youth brigade, if they were removing the matter, he’d talk to them and he resolved the matter, he said he would resolve it. That I think is common cause. MR DASTILE We had already informed him and I cannot comment any further about what happened thereafter. MR CACHALIA You, you’re not going to dispute that he spoke to his IFP youth brigade? You don’t dispute that do you? MR DASTILE No, I cannot dispute that, but I did not see that happening. MR CACHALIA Yes, now on Saturday? MR DASTILE On Saturday in the morning around ten o’clock the IFP met at the sports ground where they had an office. They started chanting their Zulu songs and they walked towards the sports field. When they arrived at the sports field they got into their shack which was not roofed. My house was further up that shack. It could be 200 metres, even less than that. They were a distance, but not far away. MR CACHALIA Sorry, Mr Dastile, if where the IFP shack is where our Chairperson is sitting, how far away was your shack, can you indicate insofar as the distance is concerned? MR DASTILE From the Chairperson right up to the exit point of this building. CHAIRPERSON At the end of the car park? MR DASTILE The entrance, the first entrance, the one entrance that’s facing the car park. CHAIRPERSON That’s ...(inaudible) metres. That same 130 ...(intervention) MR DASTILE Possibly yes. Because it looks like the same distance. CHAIRPERSON ...(inaudible) 20 metres less than that 130. I think the 130's to the main road and you’ve got that other little entrance. There’s just, almost the width of a road, so it’s about 110. In any event Mr Dastile, you know what a metre is? MR DASTILE I deal with metres, I’m a builder. CHAIRPERSON ...(inaudible) estimates round about 110. I think we can accept that. He doesn’t have to go and point it out to us. MR CACHALIA Sorry Mr Dastile I have serious doubts about your ability to measure, I’ll just put this one question again to you. If your shack is where the Chairperson is sitting, sorry if the shack of the IFP is where the Chairperson is sitting, did you say your shack is where the street is or at the entrance, the door entrance to the building, I just want to be quite sure about what you said, sir? MR DASTILE If you can look this direction Mr Cachalia there is this last door into this building, and there is another door which comes from outside, and if you are at that door you have that foreyard there and you have a parking park here, and you have a paving there. That’s where my shack could have been from the Chairperson. CHAIRPERSON About 40 or 50 metres I’d say. MR CACHALIA Thank you, that is in accordance with my instructions, I’m just trying to get that correct, alright. Were you able to hear what was happening there? MR DASTILE When they arrived they started talking and shouting at the top of their voices, especially the person who was addressing them, saying that Amakhoza, Amapondo and Amabata should leave, should get out of Zevenfontein on that very same Saturday, on the 12th. MR CACHALIA What did you do as a result of what you had heard had happened there? You report this to anybody? MR DASTILE On hearing this I went to my brother Dastile and informed him that these people are saying they’re going to beat us up today if we don’t leave because this is their place, this is their area. From my brother I then went to Mazililele. I relayed the same story to him. My brother at the time came as I was talking to Mazililele and he said, "...Don’t worry, that’s what they always say. Nothing will happen. They will not just start and attack us if nothing is wrong. They were just frightening. There’s no problem. Don’t worry." And after that I did not go back to my shack and I hanged around the place where my brother was and resulting from that I did not hear what they continued to say. MR CACHALIA Mr Dastile, the next incident that I want you to talk about is the one at Maloesi’s shebeen. What do you know about that? Please tell the Committee. MR DASTILE I think it was after three o’clock, a certain lady who stayed at Maloesi’s came and she was in the company of Boniswa. And this lady was crying, saying Mpongosi and Sithole were attacking people at the shebeen. I’m talking about another Sithole, not this one. ADV SIGODI Is this lady’s name Sister. MR DASTILE Yes, Sister is the name. I then asked as to what, why these people were being attacked and Sister said, "...I don’t know, and they were threatening to shoot us when we left." And I said, "...okay, I’m coming." I was cooking at the time when they arrived. I was staying with my brother, we didn’t have a lady in the house so I was doing the cooking. And when I switched off the stove and locked my shack, and I went to other of our leaders to inform them, I saw others going down the street headed for Maloesi’s place. Here I saw Max April as well as Caswell Tchala, and William Mazililele. I joined these people and we went to Maloesi’s place at which time I asked as to what transpired or what was happening. MR CACHALIA Mr Dastile, this person that you mentioned, Max April, Caswell Tchala and William Mazililele, to which political party, if any, do they belong? MR DASTILE The ANC. MR CACHALIA Please carry on. You go there and you, you were going there you found them either there or on the way and then what happened? Please tell us. MR DASTILE When we arrived there Mpongosi and other had already left, but people were standing milling around, and I enquired as to what was happening. Maloesi whom we found there tried to explain what had happened. He explained that Mpongosi arrived and started asking Maloesi why he didn’t want to sell liquor to IFP members, and why he was saying he was going to serve only ANC patrons. And when Maloesi tried to explain Mpongosi did not want to listen and he forcefully took people’s liquor and drank it, and he started slapping him, and started pouring this liquor over somebody’s head. That is when it became clear that people had already heard about this and they started coming down, and from Maloesi’s place we headed for Magwaza’s place, and along the way I came across my brother and there were now three, Maxwell Caswell and Qolile, one other ANC member. And Max and April, I think there were seven of us, we went down to Sithole’s place, and MR CACHALIA ...(inaudible) you said that the people started coming and you went to Magwaza, you went towards Magwaza’s house when you met your brother and you mentioned a number of people and then you say you went to Sithole’s house. Did you got to Magwaza’s house or Sithole’s house? MR DASTILE We started with Magwaza, and we did not find him at his shop. Thank you, I had made a mistake there. And from the shop we took a direction towards Sithole’s place. Before we arrived at Sithole’s house, we, Sithole actually came in the company of Zwane and Mpongosi and Sithole’s boy, as well as another boy called Mbuso. He was a leader of the Inkatha youth brigade. And when we met them these other people stood behind Sithole and Sithole came to the fore and asked, or should I say my brother asked Sithole as to whether he had heard that Mpongosi had attacked people at Maloesi’s shebeen. Sithole denied knowledge of that. At that time Mpongosi was present. Zwane and Mbuso, as well as Sithole’s son, had firearms. Sithole did not have a firearm. Mpongosi did not have a firearm. All of these had these handguns. When Sithole arrived denying knowledge of that my brother said, "...Yes, that is exactly the reason why we are here, we wanted us to inform you about the fact that they had threatened people, saying they are coming back and they will shoot them when they get back. And they threatened to shoot any ANC member within the area." Sithole then said to Dastile, "...Go and talk to the ANC people, I, Sithole, will go and talk to IFP members." He was saying that because my brother said, "...Sithole let us please stop this. Let it not continue, because many places are faced with violence and should this start it will never stop." That is why it was agreed that he should talk to the ANC and the other one to the IFP. And when we went to the ANC, and at that time I must point out that people had gathered at the ANC office, worrying about the threats. We came to address the people about that. My brother actually was the one who was to address them on that matter. And as he was addressing them people said, "...This is not an empty threat. It looks like Inkatha are intent on doing something today." My brother said Sithole will not allow that to happen. And after Dastile had addressed the people, the people seemed to understand and he had to go back to Sithole to report back, because he was, Sithole that is, was going to talk to the IFP and they had to report back to each other. And Dastile was again delegated, together with his deputy Caswell Tchala, they were delegated to go and talk to Sithole and establish as to how this can be resolved. I volunteered to accompany them so that I could be the third person. I wanted to hear this myself. And on our way, or just before we left, many people said, "...You cannot go there alone, we will rather accompany you to hear everything ourselves." And my brother said, "...That is not a good idea, it will look like we are fighting." And people were running, carrying their weapons, and it was indicated that if that is the case let us leave our weapons behind. Indeed people agreed, and we started walking. We were, there was a distance of about 20 metres between ourselves and the group that was following us. And as we were approaching Brown’s place, we suggested that my brother should go ahead and be in the front that he could be seen by Sithole. And as he was going down, my brother suggested to me that I should stop the people before they could reach Brown’s place. MR CACHALIA Sorry, will you tell us, you reached at that stage, you and your brother had reached Brown’s, next to Brown’s shack, that is just before the sports field. Is that right? MR DASTILE That is correct. MR CACHALIA Now you say that you said to your brother he must go ahead, and he had asked you to ask the people to wait at that particular place, is that correct? Is that what you’re saying, sorry sir. MR LAX That’s what he said. MR CACHALIA What I want to know is, what, did you see Sithole, was he around at that time when you told your brother to go ahead? MR DASTILE No, Sithole had not yet appeared. There was a dustbin from the shacks towards the sports field and on the other side of two lines of the shacks there was Magwaza’s place. There were people who were standing there, singing political songs, and they were standing next to this very big rubbish bin, and he created an opportunity to be seen. And we saw this very huge throng of IFP people approaching, and they went up towards the position where we were standing next to Brown’s place. And our people started shouting, or calling at Dastile, telling him to come back because these people are fighting. That is when our people were attacked, and that is when women started going up towards the TPA offices. MR CACHALIA Sorry, sorry, you’re going too fast. You and your brother and other people walked in front and there was a group behind you and you came up to the Brown’s place and Mr Sithole and the throng of people as you call them from IFP was somewhere near Magwaza’s house, and they came towards you people. Is that what you said? MR DASTILE Yes. MR CACHALIA Where did they stop, or did they continue, or where was your brother in relation? I just want to know you know precise details about that. MR DASTILE When they came at the point where they stood my brother was not a distance away. The IFP stood what could have been about 30 metres from my brother. MR CACHALIA Were they on the sports field or were they not on the sports field? MR DASTILE He was standing right on the sports field and this group was at the end of the grounds, just at the point where the shacks started towards Magwaza’s place. MR CACHALIA Who was on the sports field your brother Dastile? Who was on the sports field, please tell me I’m sorry I don’t want to make suggestions to you. MR DASTILE My brother was standing in the middle of the sports field, he left us and went to stand in the middle of the sports field waiting for Sithole to come and meet him. MR CACHALIA And where was Sithole and was at Magwaza’s place did they come up on the sports field or just to the edge of the sports field or what was the position? MR DASTILE Sithole came with this other group of people which came to join the Inkatha youth at the big rubbish bin. They joined together and they came as one big group. That is when my brother was called, saying he should come back because these people are not coming in peace. MR CACHALIA They came from the big dustbin and all that is that near the sports field sir? That’s all that I want to know or is it not near the sports field? That IFP people that came there. CHAIRPERSON You said they were at the big dustbin and that the brother was 30 metres from them, so you know, if we know, it sounds close enough to me. Can’t be, and the brother was standing in the middle of the sports field, so. MR LAX And the dustbin is just near Magwaza’s place, so I mean. CHAIRPERSON I think Mr Cachalia just let Mr Dastile relate his version and then afterwards you can fill in the details what you want, because otherwise we’re getting stop, start, we’re losing a lot of time. MR CACHALIA I will do that but I was just to indicate at this stage, alright, perhaps it’s a better idea that you go and I will then indicate the positions of these various places later. Please go ahead. MR DASTILE And when this throng of people approached, they were walking swiftly, and when they were closer we started hearing a gunshot. And we all left the street where we were standing and we went towards Brown’s shack behind which we hid. They also came and they hid behind the other side of the very same shack, and one person would peep and try to aim at the target with an intention of shooting, and we started throwing stones. I think 10 minutes could have elapsed, the same thing was happening, trying to aim, shooting, hiding. Zwane came, I don’t know his name, I just know his surname, that’s how we used to relate to each other. When Zwane came he positioned himself such that we the ANC could see him, and he shot towards the ANC group. The one first person who fell was Qolile Present, I’m not sure whether the pronunciation is correct here. He, Qolile fell just in front of me, I was standing behind her. And I also fell after I was struck by a bullet around the neck, and when I tried to rise I could not, because as I was trying to rise I could see a ball of fire crossing through my eyes, or in front of me. At that very same moment I heard my brother calling out to me saying, "...These people have hurt me." I went to my brother and held his hand, at that moment I realised that he was losing his strength. There is one other person who came and assisted me. There were two of these ANC members and we, they carried him on the shoulders, suggesting that I should leave him because I was injured as well. And they carried Qolile too. We went up towards the TPA office and some of us at the time were throwing stones at these people, trying to distract them, and as our group was retreating backwards, that is when Mr Sithole climbed onto the rooftop of Mr Brown’s shack and he knelt and started aiming at us. He started shooting. That is when I identified him as Mr Sithole because I knew him very well, he was always with us. And once we were at the TPA they turned back half-way from Brown’s place. They too were also pelting us with stones. They returned and they went down a street that is now named Dastile Street. They took that street and went further down. I don’t know where they ended up. And at that time we were injured and we were at the TPA offices waiting for an ambulance. MR CACHALIA Thanks. Mr Dastile what was the size of the group of IFP and the size of the group of ANC at that time, in your estimation? MR DASTILE They could have been 100 IFP members. Hundred or more, they were certainly not less than hundred. And of the ANC group we could have been about 200, or even slightly more than that because people had fled their shacks and they were heading towards the ANC office. MR CACHALIA People had fled their shacks and heading towards the ANC office. Where is the ANC office, sir, in relation to Brown’s shack, or in relation to the sports field? MR DASTILE It was a distance from Brown’s shack to the office of the ANC. It could be about 400 metres from where we were, that is Brown’s place, to the ANC office. MR CACHALIA Am I correct when I say that it is two streets further up from where Brown’s shack is? MR DASTILE Yes, that is correct. The office is on the third street. MR CACHALIA And you have to go a certain distance inside? MR DASTILE That is correct. MR CACHALIA You talked about Qolile Present having been injured in front of you. Is Qolile Present a male or a female? MR DASTILE A male. MR CACHALIA I just put it to you because in the translation the person was referred to as she, anyhow. Is that all that you want to say? MR DASTILE No, Qolile is a male. MR CACHALIA I’ve said yes already. Is that all that you wish to say in relation to this particular event? MR DASTILE Yes, that’s it. MR CACHALIA Thank you Chairperson. CHAIRPERSON Thank you Mr Cachalia. I see now it’s twenty five past four. Would this be a convenient time to adjourn, and then we can commence with the cross-examination tomorrow? Would nine o’clock be acceptable tomorrow? Would you be able to be here by, Mr Dastile? MR DASTILE We sometimes experience traffic jams along the way here, but we will try to be here at nine o’clock. CHAIRPERSON Yes, I would appreciate that if you could be here at nine. MR CACHALIA Convey the necessity and the urgency for them to here at that time. CHAIRPERSON Thank you Mr Cachalia. Yes, so then tomorrow morning we’ll start with the cross-examination of Mr Dastile by Mr Claassen and then Mr Draht. And then, are you calling any other witnesses Mr Cachalia. MR CACHALIA I had the intention of calling one other witness, sir. CHAIRPERSON Yes, then if that witness is called then after that, I’d ask the legal representatives if they could be ready for arguments. Thank you. We’ll then adjourn until tomorrow morning at this hall at nine o’clock in the morning. I’d once again request the Correctional Services people if they could please ensure that the applicants are here in good time before nine o’clock, and also ask Mr Dastile to make a special effort to try to beat the traffic tomorrow to be here at nine o’clock so we can have an early start like we did this morning. I’d just like to thank everybody for being here promptly this morning at nine o’clock, we had a nice early start. Thank you, so we’ll adjourn until nine. Thank you. COMMITTEE ADJOURNS