amntrans AMNESTY HEARINGS 1999-05-12 VANDERBIJLPARK 8 MACHIHLILE WILSON BALOYI - WITNESS BOIPATONG MASSACRE https://sabctrc.saha.org.za/hearing.php?id=53382&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99050321_vbp_990512vb.htm ON RESUMPTION CHAIRPERSON ... which is the response by the TRC to the letter of 5 May 1999, by the applicant's attorneys. Did everyone receive a copy of this document? MR DA SILVA Mr Chairman, I have not received a copy. I understand that there are three other colleagues of mine that have not received a copy. I received a document approximately 10 minutes ago and I've tried to glance at it, but I haven't even had the opportunity of glancing through it. CHAIRPERSON Yes. Is this just a separate document? MR DA SILVA Mr Chairman, I received this document from Mrs Pretorius, which appears to be the document and I haven't had an opportunity of even glancing ...(intervention) CHAIRPERSON Does it go to page 38, do you know? MR DA SILVA Mr Chairman, mine's not paginated. MS PRETORIUS Mr Chairman, I have not received a copy yet. That copy is Mr Strydom's, I think, that Mr da Silva has. Up to now I haven't received a copy either. And may I speak for Mr David Mey, he is sitting in the hall and he hasn't received on either. CHAIRPERSON Yes. MR BOTHA Mr Chairman, it seems to me that I haven't received on either. I went through the notes that Mr du Plessis got yesterday and we don't have copies. CHAIRPERSON I beg your pardon? MR BOTHA We don't have one either, Mr Chairman. CHAIRPERSON Mr Lowies? MR LOWIES I did receive one, thank you, Chair. CHAIRPERSON Mr Strydom? MR STRYDOM I received a copy. MS TANZER I did too. CHAIRPERSON Mr Mapoma? MR MAPOMA I've got a copy, Chairperson. CHAIRPERSON Mr Malindi? MR MALINDI Chairperson, I have a copy. CHAIRPERSON When did you receive it? MR MALINDI I received it yesterday. MR BERGER Chairperson, Ms Cambanis and I both received separate copies yesterday. MS THOMAS Chairperson, I received mine this morning. I haven't had an opportunity to go through it yet, but I do have a copy. CHAIRPERSON I do not know the extent to which this document would be relied upon in opposition to and support of the present application. So it seems to me that all the legal representatives must be given enough time to go through the document, to the extent that it may be relevant to the application which we were scheduled to hear this morning. Is there any reason why these other legal representatives who didn't receive this document were not furnished with one yesterday? MR MAPOMA Thank you, Chairperson. Mr Chairman, there's actually no reason why they were not given that document I must say and I regret that quite sincerely. I'll try to apologise to the other parties who have not been given that information, I mean that document. Unfortunately Chairperson, the circumstances under which we distributed the document were not very much conducive for everyone to get them because we only made them available when we were, after the adjournment and unfortunately some of the colleagues had already left at that time because immediately when the adjournment was made people just packed and left. We are going to endeavour to make those copies available to them as soon as we can. CHAIRPERSON Do you have anyone assisting you with making photocopies? MR MAPOMA Yes, Chairperson, I'm being assisted by the secretary and Mr Jan Eck(?). CHAIRPERSON I beg your pardon? MR MAPOMA And Mr Jan Eck, the Investigator. I rely entirely on them in fact for making copies available. CHAIRPERSON Yes. Isn't there supposed to be a Logistics Officer? MR MAPOMA There's supposed to be one. CHAIRPERSON Is there one, do we have one? MR MAPOMA Yes, we do. CHAIRPERSON Why can't he assist? MR MAPOMA She also was part of the assistance in making copies. CHAIRPERSON When can you have those documents? Could we have those documents made available to the legal representatives by tea time? MR MAPOMA Yes, Sir, I will undertake to do that. CHAIRPERSON Alright, very well. What is your attitude, Mr...? MR STRYDOM I think it would only be just and fair if my colleagues have the opportunity of perusing the document, having it available. I will not rely too much in argument on the document, as I've indicated to my learned friend, but Chair I don't have a problem with that. There's one aspect though that I'd like ...(intervention) CHAIRPERSON The application as I understand it, is being brought by yourself only. MR STRYDOM On behalf of all the applicants. CHAIRPERSON Yes, indeed. So they have no part to play in this application, you're other colleagues? MR STRYDOM No. CHAIRPERSON Yes, very well. MR STRYDOM Chair, just one aspect, did you mention that the document comprises 31 pages? CHAIRPERSON 38. MR STRYDOM I have one of 37. CHAIRPERSON Oh, that's a matter for arithmetic. Alright, how much time Ma'am, do you think you will need to go through that document and be ready? MS THOMAS Chairperson, it doesn't appear to be a very long document. I would say 20 to 30 minutes. I don't even know what it contains, but I would say 30 minutes is reasonable. CHAIRPERSON Well it's not just a question of reading the document, it's a question of reading the document and then considering your position in regard to the document. So I'm not too sure that that process would take 30 minutes. MS THOMAS I'm in agreement. By saying 30 minutes, I was just trying not to cause undue delay to the proceedings. I'm in full agreement, one would indeed further have to take instructions on the basis of the contents of the document, so it might take much longer than 30 minutes, Chairperson. CHAIRPERSON Well that's what I'm trying to find out from you. ...(indistinct) we're going to do. We will excuse you from attending. We'll give you enough time to go through that document and to consider your position, and then would you let us know by 11 o'clock whether you will be in a position to proceed with the matter if the matter is argued at 11H30 today. MS THOMAS I will indeed do so, Chairperson. CHAIRPERSON ... or whether you prefer - because I think that the number of options, one is to have the matter argued at 11H30, otherwise we can have the matter argued at 2 o'clock when we come back from lunch. MS THOMAS I will indeed give an indication, Chairperson. CHAIRPERSON Otherwise we can have the matter argued at half past four, when we finish hearing the evidence. So these are the three options, okay? MS THOMAS I will keep the options in mind, Chairperson. I will indicate what my position is to you at 11 o'clock. CHAIRPERSON Okay, but if you are not going to be ready today and you would prefer to have the matter argued tomorrow, which is Thursday, you let us know. MS THOMAS I will do so. CHAIRPERSON Okay, but at least we need some indication. MS THOMAS At 11 o'clock? CHAIRPERSON Yes, at least just to give us your own assessment as to where you stand. MS THOMAS I will do so, Chairperson. CHAIRPERSON Very well. CHAIRPERSON Mr Lowies, do you have any objection to the...? MR LOWIES Not at all, Chair, not at all. CHAIRPERSON You're not being persuaded by the half past four option, are you? MR LOWIES No, Chairman. CHAIRPERSON Yes, very well. What about your colleagues? COUNSEL Mr Chairman, I'm in a very difficult position ... CHAIRPERSON Yes, indeed, yes. COUNSEL I can't make any comment. I haven't read or looked at the document properly so ... CHAIRPERSON Yes, indeed. Very well. We will then resume with the testimony of Mr Baloyi. You are excused Ma'am from attending. MS THOMAS Thank you, Chairperson. CHAIRPERSON Yes, very well. Is it possible, Mr Mapoma, to get the further copy - do we have the other copies ready in the meantime? MR MAPOMA Unfortunately no, Chairperson, the missing copies, I don't have them. They are going to be recopied. CHAIRPERSON Could we have those copies being made in the meantime, so that at least by 11 o'clock we are ready to distribute them. MR MAPOMA Yes, Chairperson. CHAIRPERSON I've got a copy here which is - well, unfortunately my copy has already been marked, so it's no longer in the public domain. Mr Berger, how many pages does your copy have? MR BERGER I have 38, Chairperson. CHAIRPERSON You've got 138? MR BERGER 38. CHAIRPERSON 38? MR BERGER Thirty eight. CHAIRPERSON Oh, okay. Mr Lowies, you've got to recount your pages. MR LOWIES Chair, I will check. I don't want to make my problem everybody else's. I'll check. CHAIRPERSON It may be an arithmetic problem. MR LOWIES With me it's possible. CHAIRPERSON Yes, very well. Would you have Adv Sigodi's copy then? DISCUSSION REGARDING COPIES CHAIRPERSON Mr Baloyi, may I remind you that you are still under oath? MACHIHLILE WILSON BALOYI (s.u.o.) CHAIRPERSON Mr Strydom? CROSS-EXAMINATION BY MR STRYDOM (cont) Thank you, Chairman. Mr Baloyi, your neighbour that lives opposite you, is that John Buwa, spelt B-U-W-A? MR BALOYI That is correct. MR STRYDOM He lives at 807, Bafokeng Street. MR BALOYI That is correct. MR STRYDOM He testified during the criminal hearing ...(intervention) MR BALOYI I don't know because they were frequenting the court. MR STRYDOM Just for record purposes, his testimony appears in volume 20, on page 2291. CHAIRPERSON What is this house number? MR STRYDOM 807, Bafokeng Street. He testified that he heard shots being fired before the people entered his house. Now I want to know, did you hear any shots? You referred to noises yesterday, but did you hear any shots just before you saw the crown outside Mr Buwa's house? MR BALOYI No, I did not hear any shots at Buwa's place. I only head shots at Nqwale's place. MR STRYDOM Chairperson, before I forget, I measured the distances. The first distance that was estimated from the witness to myself is approximately seven paces and the distance from the witness to the back wall is 12 paces. MR LAX What about the witness to the fourth row there, that's the other distance. MR STRYDOM No, that one I didn't measure, I forgot about that one, I will do that in due course. MR LAX Okay. MR STRYDOM Now you estimated yesterday that there were some people, you said there were some people in front of Mr Buwa's house and you were asked by, I think, Adv Sigodi, to indicate how many people were in that group where you said you saw Mtwana. Now Mr Buwa was asked how many people he saw in front of his house and he said 60 people, would you agree with that figure, approximately 60 people? MR BALOYI That was his testimony. The group that I saw outside could have been six to seven, there were not many. CHAIRPERSON Are you referring to people who came out of his house, that were six or seven? MR BALOYI Yes. CHAIRPERSON Now what counsel is putting to you is the approximate number of people who were in front of Buwa's house on the street. MR STRYDOM I think I'll read the relevant portion, just to make certain what the reference was. Mr Buwa said he heard noises and he heard a shot going off, then he went to his window. Then he testifies as follows: the male persons which he saw on the side of the street, he saw them in Bafokeng Street. And then a question was asked "Can you tell the court how many people did you see in Bafokeng Street?" And then the answer was: "I estimate 60" And then he went further: "Could you see if these persons were armed?" Answer: "No, I could not see it clearly because it was dark" So before his house was attacked he went to the window and he saw 60 people outside his house, did you also see 60 people in front of his house before the house was attacked? MR BALOYI I did not see 60 people. There was no time really to count the number of people who were standing there. There were several of them, but they could not have been 60. He is giving testimony about what he knows. CHAIRPERSON That evidence is what Mr Buwa saw as he looked through the window. That is before his house was attacked, do you understand that? That is what he is saying. He says, before his house was attacked, when he looked through the window he saw approximately 60 people on the street. I think what counsel wants to find out from you is whether you can comment on that. MR BALOYI No, no, I cannot. MR STRYDOM You also testified yesterday that the situation of the light was such that you could see as well as in daylight. I want to put to you that Mr Buwa stated at the trial that he couldn't see if these people were armed because it was dark. Do you want to comment on his testimony? MR BALOYI I cannot comment on what Buwa said. I am only talking about that which I saw personally. It was so bright you could see a person from a distance. Buwa is only testifying to what he knows. MR STRYDOM Yes. After the attack on your house and when you went outside, did you see Mr Buwa? MR BALOYI I don't get your question. MR STRYDOM You testified yesterday that after the attackers left, you went outside and at a certain stage your wife was also outside, did you see Mr Buwa as well? MR BALOYI Yes, yes I saw him, because people were injured there. I am the person responsible for first aid in that street, as well as Mogotso. MR STRYDOM Yes. At the time you saw ...(intervention) CHAIRPERSON Who is the other person? MR BALOYI Mogotso. MR STRYDOM When you saw Mr Buwa were there still police vehicles in the vicinity? MR BALOYI They had already left, they had already gone to kwaMadala Hostel. We could see them moving to the hostel, being followed by the Hippos from behind, and they went to KwaMadala Hostel. MR STRYDOM Did you point that out to Mr Buwa? MR BALOYI He had been attacked, so he was supposed to have seen it for himself. MR STRYDOM I want to put to you that Mr Buwa also made mention in his testimony of a koyoko, but he testified as follows - I'll just put you in the picture. He said at the stage his house was attacked, he ran away and hid him somewhere. Then he said "Whilst I was hiding I saw a Koyoko move in the vicinity of the garage in the direction of the town" And then it was asked of him: "In which street did the Koyoko move, can you remember?" He repeated: "It moved down the street which will take you to the town" "Is that Frikkie Meyer Boulevard?" "Yes" MR STRYDOM MR BALOYI I am saying I am not here to testify about what was said, I'm only getting that from you. I saw koyokos and I stand by that evidence. MR LAX Mr Strydom, could you just give us the various references of these bits of evidence that you've quoted. You gave us where is evidence started, but you've referred now to two separate portions. If you could just give us the page references for the record. MR STRYDOM The first reference is on page 2292, the accused says the first five lines, and the second reference is page 2293, from line 10 to approximately line 17. MR LAX Thanks very much. MR STRYDOM When the three attackers came into your house with the red headbands, where were you situation in the house? MR BALOYI I was inside the house, in the sitting-room. MR STRYDOM: In your testimony yesterday you said that: "I stood in front of the bedroom door and one of the attackers wanted to hack me, and then I went into the room." So can you just explain that please, what was your position? MR BALOYI I will explain because I was the one who was attacked. My sitting-room is, should I say, similar to this open space here and you have my bedroom door right in front of the sitting-room. I was standing in the sitting-room as they were getting in and I stood at the door to my bedroom and held the door and I was looking at them as this was happening. MR STRYDOM And then you testified that you slammed the door on him, on the attacker, is that correct? MR BALOYI That is correct. Yes, I am the one who did that. When he came he climbed that step with an intention to hack me and I moved backwards. I wanted him to climb that step so that I could hit him with the door. After he had climbed the step, I them pushed the door against him and he fell onto the sofa. The sofa is still torn as I speak, but then I fixed it later. MR STRYDOM What I basically want to know is, if you closed the door so he ended up in the sitting-room and you in the bedroom? MR BALOYI I did not close the door. I did not get inside the bedroom, I was just standing there holding the door like this. I did not close the door in such a way that I could not see them from inside the bedroom. MR STRYDOM So you slammed the door but you kept the door open so you can see what was going on in the sitting-room, is that what you're saying? Is that correct? MR BALOYI Yes. MR STRYDOM And then he came back at you again and you did something similar, you slammed the door again? MR BALOYI He came back and I moved a little backwards, still holding the door, and I slammed the door against him for the second time now. That is when the suitcase that they had brought along, full of clothes, glassed, flipped open and these things fell out. MR STRYDOM So it's not a situation that when they entered you went into the bedroom and locked the door and stayed behind the locked door? MR BALOYI No, I did not lock myself inside the bedroom. I could see them as they were taking that box full of records. They took a hi-fi set and those who took those things, the people who took those things went out of the house there and then and this one came to me as the suitcase was down there. MR STRYDOM You see, in the statement I referred you to yesterday, Exhibit CC - just to refresh your memory, that's the statement made to, when the interpreter Mr Matengane was used, you said the following "They broke open my front door and a black male entered the house. I punched him away and went into the bedroom and locked the door." ...(intervention) MR BERGER I'll just check the original. CHAIRPERSON Where are you reading? MR BERGER If you number the paragraphs it would be easier, and it would be the seventh paragraph. CHAIRPERSON Yes, okay. MR STRYDOM Ja, it's the original I'm just reading "I pushed him away and went into the bedroom and locked the door. I won't be able to identify the black male who entered the house" I'm reading from the original. Chairperson, I've made copies of the original, maybe I'll just hand them out. The portion I put to you, which I want to ask you a question about, is this portion. I'll break it down. Firstly, it states that: "A black male entered the house" You testified that three people entered the house in this court, in front of this Committee. MR BALOYI Yes, that is correct. MR STRYDOM Can you give me an explanation why there's only reference to "A black male entered the house" - in the statement. MR BALOYI I don't know. MR STRYDOM Then it goes further "I pushed ..." ...(intervention) MR BERGER Chairperson, in fairness to the witness, if one looks at paragraphs number 8 and 9, there's talk about "they". MR STRYDOM Yes, I see that. Let me ask you this way; the three people you say, did they come into the house at the same time, or just one and then later two more, what's the situation? MR BALOYI They came into the house at the same time because they broke the door. CHAIRPERSON They broke the front door ...(intervention) MR BALOYI Yes, the front door. CHAIRPERSON ... but only one male came to you with an axe? MR BALOYI Yes, only one of them came to me with an axe. CHAIRPERSON Whilst the remaining two helped themselves to those items? MR BALOYI One of them took my hi-fi set and the other one took a box full of records. CHAIRPERSON Yes, I understand. MR STRYDOM Yes, but the question I really want to ask you is, why did you state here that after this person entered the house "I pushed him away and went into the bedroom and locked the door" Because you testified here that you never locked the door, in fact you sort of reopened the door and pushed him away again. MR BALOYI I was doing that. I know what I did. I was holding the door, I knocked him with the door. This person did not know the geography of the house. CHAIRPERSON All that you're being asked is, what appears in this statement, do you understand that? MR BALOYI I knocked him with the door, not the front door, no. MR STRYDOM So you never locked the door? MR BALOYI When he held the door for the third time, that's when I held the door. CHAIRPERSON Did you lock yourself into the bedroom? MR BALOYI No, I did not. MR STRYDOM Now when you were attacked, why didn't you lock yourself into the bedroom? MR BALOYI I could not have done that because I wanted to see their movements. MR STRYDOM When they left what did you do? Immediately after they left the house, what did you do? MR BALOYI When they left I also got out of the, I got out of the bedroom and I went to the front door and I watched them as they were leaving. Windows were also broken. MR STRYDOM So you say that they were still in the close vicinity of your house and you just came out of the bedroom and started to just casually watch them, is that so? MR BALOYI Yes, I saw them as they were leaving. MR STRYDOM When you came out what did you see? MR BERGER The witness never said "casually watching them". MR STRYDOM I'm putting as a proposition to the witness, Chair, but I'll move on. CHAIRPERSON Did you see these three people leave your house? MR BALOYI The first two left as I was watching and one of them was carrying the box full of records and the other one a hi-fi set. And I also saw this one that I was fighting leaving and before he left he took some clothing, children's clothing from the sofa and he left behind the suitcase that he had brought along. And these clothes had come from Mgena. MR STRYDOM You must tell me if I'm wrong now, but I get the impression that whilst they were still in the house you came out of the bedroom and that enabled you to see now that they took the things and then left the house, is that correct? MR BALOYI As I was peeping through the door I could see them leaving. MR STRYDOM Were the lights in the house still turned on or off at that stage? MR BALOYI They are the ones who switched the lights on. MR STRYDOM So it seems to me that you had ample time to identify these people, to see them, is that correct? MR BALOYI Yes, yes. I was waiting for them because I knew. MR STRYDOM You knew what? MR BALOYI When I testified yesterday morning I indicated that I received a telephone call that we were going to be attacked, so I knew that they were coming to attack. MR STRYDOM So in this house, during the attack, you looked at these attackers so as to enable you to identify if needs be at a later stage? MR BALOYI You don't have time to look at a person closely in a fighting situation, you are just trying to protect yourself. MR STRYDOM But let me ask you this, if the three attackers are brought to you now, will you be able to identify them? - anyone of the three. MR BALOYI I will not be in the position. Maybe if I - if he was brought forward so that I know who he is, maybe I would be at peace with myself. MR STRYDOM Tell me, do you know why the clergyman, Father Patrick phoned you informing you about the attack? MR BALOYI I am a congregant in his church, he is my pastor, he trusts me. When he goes overseas I take charge of the church. When he's not around on Tuesdays I take charge of things in the church. MR STRYDOM Now can I just get clarity again, at what stage in relation to this attack, did you come out of your bedroom, finally came out after the attack now? The people came to your house, you said they left, were they still busy leaving or when did you come out of your room? MR BALOYI They had already left, but I could see them as they were leaving. MR STRYDOM You mean, did you see them outside the house leaving or did you still see them in the house leaving? MR BALOYI I went out through the front door and they had left the hi-fi which they had broken on the stoep. MR STRYDOM When you went outside what did you see? MR BALOYI I saw them as they were leaving. MR STRYDOM Where were they? MR BALOYI On the open space. I don't know how to explain it, you don't know Boipatong. You see we are at the end of the township, so there is an open space and I could see them as they were leaving. There is grass there. I could see them as they were leaving. CHAIRPERSON No, what counsel is referring to, he's not referring to the group, do you understand that, he's referring to the three people who had entered your house. Do you understand that? MR BALOYI Yes, I understand. They joined the big group that was leaving. CHAIRPERSON When you came out of the bedroom, did you see these three people who had entered your house? MR BALOYI I said I saw them when they left. CHAIRPERSON Were they still inside ...(intervention) MR BALOYI But I was not just standing, there was no time for that, they were leaving. CHAIRPERSON Were they still in your yard or were they on the street? MR BALOYI In the street ... ...(end of side A of tape) CHAIRPERSON Were there other people on the street at the time? MR BALOYI They were moving, yes. CHAIRPERSON Apart from these three people? MR BALOYI When I came out of the house these three joined a group of people that was moving along the street. CHAIRPERSON How many people approximately did you see on the street at the time? MR BALOYI I am not in the position to say. You see when you look at a throng of people like this, you just cannot say how many they are, there were many. I am saying I cannot estimate how many they were, there were many of them. All the people who had gone to attack Slovo etc., came out of the township through our street. MR STRYDOM Did you hear any noises or any sound as the people left? Just to make it clear, you said now the three attackers joined the group. At that stage, what did you hear? MR BALOYI They were walking very swiftly, they were not making a noise. MR STRYDOM From the stage - when you still in your bedroom holding the door, up to the time that you went outside to see the group leaving, did you hear anything outside? MR BALOYI I did not hear any noise. They were leaving. You see, they were not talking, they were not making a noise as they were leaving. People who were making a noise could have been the people who had been injured behind. They were not making a noise, these people. MR STRYDOM So they were quietly moving out of the township at that stage? MR BALOYI Yes. MR STRYDOM At that stage was there any vehicle in the close vicinity of this group? MR BALOYI There was no vehicle on the veld, it was only them moving on the veld and the koyokos were further up in Umzimvubu and there were lights there, they were visible. One could see where they were headed. And this Koyokos, two Koyokos were moving in front of them in Umzimvubu Street. MR STRYDOM When you testified yesterday in chief, you said the following - and I've just got a cryptic note: You were testifying about how they tried to get into your room and then you said "They left ..." And then you were asked if you heard any other languages and you said yes, you heard Afrikaans "maak gou". MR BALOYI That is correct. MR STRYDOM And then you said "Then they left and went into the forest" That's more or less at the time, at the stage when you heard these voices. Now you just told us that people left quietly. When did you hear this "maak gou" then? MR BALOYI My house was the last to be attacked and when this "maak gou" was, when I heard this "maak gou", it was after my house had been attacked. MR STRYDOM At the stage when the people were moving out? MR BALOYI Yes, when they left. Because they were the ones who were still remaining behind at my house and they were being called out by the other people in the group. And when they called, this last person took the items of clothing from the sofa and he left the suitcase that he had brought in. MR STRYDOM So do you say that they shouted "maak gou", or somebody shouted "maak gou", when you were still in the bedroom? MR BALOYI No, I did not remain in the bedroom, I just held onto the door and I slammed the door on this person and thereafter left. CHAIRPERSON When you were holding onto the door, was this the bedroom door? MR BALOYI Yes, it is the bedroom door. CHAIRPERSON Were you inside the bedroom or outside the bedroom? MR BALOYI I was inside in the bedroom. MR STRYDOM Yes, but then the three attackers left your house and you said you moved outside. Now I just want to know, at what stage did you hear "maak gou", were you still inside the bedroom holding the door, or already outside the bedroom, in the sitting-room? MR BALOYI I was standing by the door and all the windows had been broken and because of that you could hear somebody calling from outside. That is when I heard this. MR STRYDOM Yes, and that's also the stage when I asked you "Did you hear anything?" "No, no noises, they left silently" Now I'm putting to you, this story about "maak gou" is just now to insinuate that there were white people also involved. MR BALOYI White people were also present. That is the truth. If I had money I would offer R4-million to say that yes, indeed they were there. MR STRYDOM Did you see the white people at the stage when you stood there looking through the broken windows? MR BALOYI There was no time to stand around, the fighting was going on. You were looking everywhere, you couldn't just stand and just watch. CHAIRPERSON He's asking you - well, did you at any stage stand next to the broken windows to look outside? MR BALOYI It was possible to see through the window after the windows had been broken, even if you were not standing next to the window. MR STRYDOM Yes, but when you saw the three attackers joining the group and you saw them with the goods you referred to, was that the stage when you heard the people shouting "maak gou"? MR BALOYI When they shouted "uSotho, kill the dogs", they were still emerging from Buwa's house and when the people who had been at Vita's house came to my house and they said: "kill the dogs". After they left my house - when they left my house, that was when somebody called "maak gou". MR STRYDOM Let me ask you this, where were you standing when somebody shouted "maak gou"? MR BALOYI It was in the sitting-room and there was a door right there and I was standing next to that door waiting, looking at what was happening. I was also looking through the bedroom window because there are two windows in my bedroom. MR STRYDOM Why do say two windows in your bedroom? Were you standing in your bedroom? MR BALOYI Yes. My bedroom is at the front portion of the house. It is not at the back, it is next to the sitting-room. CHAIRPERSON And it is along the road, is it? MR BALOYI Yes. When I'm in the bedroom I can see what happens outside as well as I can see when I'm in the sitting-room. MR STRYDOM So was this at the stage before you left your bedroom, after the people that were trying to open the door of the bedroom? MR BALOYI That is correct. MR STRYDOM That is when they left. They were being called to hurry up because the time was up. MR STRYDOM So at that stage you were looking through the window, is that correct? MR BALOYI I was standing there, just right there, I did not go to the window, but I could see through the window. CHAIRPERSON Is that the bedroom door where you were standing, were you standing at the bedroom door? MR BALOYI Yes, in the bedroom. CHAIRPERSON And that door opens into the sitting-room? MR BALOYI ...(no English interpretation) CHAIRPERSON From your bedroom do you go into the sitting-room, yes or no? MR BALOYI Yes. MR STRYDOM Could you see the person who shouted "maak gou"? MR BALOYI No, I just heard a voice calling. MR STRYDOM At that stage was there just one big group of people moving past your house? MR BALOYI As they were walking past the streets, it was not as if they were a group, they were just walking along, just a throng of people. MR STRYDOM And you didn't see any whites at that stage, is that correct? MR BALOYI The people who were dressed in black were walking along the sides, not in the middle of the street. MR LAX The question was, did you see any white people at that stage? A simple yes or no, that's all that's necessary. MR BERGER Chairperson, with respect, we've canvassed this before and the witness has explained that the people walking on the sides wore balaclavas and he associated them with whites because of what happened subsequent. That's the context in which this answer must be understood, I would submit. CHAIRPERSON That's a matter for argument. MR BERGER Yes, but the point is we've canvassed this before, by Mr Strydom ...(intervention) CHAIRPERSON What's your answer, Mr Baloyi? MR BALOYI MR STRYDOM Mr Baloyi, those people walking on the sides, when I asked you about that - we were talking at the time before your house was attacked, do you say that after the attack these people were still walking on the side of the road? MR BALOYI I do not know how to explain this. I do not know how to respond to your question. MR STRYDOM I'll try to make it easier. I don't want to repeat the evidence, but yesterday I asked you questions "What happened before the attack when you looked out and saw the Koyoco and what did you see ..." ... and all that, and you said that you saw a group of people in the road and you saw people on the side of the road, remember that? MR BALOYI That is correct. MR STRYDOM Yes. And you said the people on the side, some of them wore balaclavas, is that right? MR BALOYI That is correct. MR STRYDOM Now after that, the houses opposite you were attacked and then your house was attacked and some time must have lapsed, isn't it so? MR BALOYI My house was the last that was attacked. That is why I was able to see them clearly. MR STRYDOM And now after the attack you looked through your bedroom windows and you again saw, according to your evidence, these people in black walking on the sides, is that correct? MR BALOYI No, I did not see them again because they went in another direction. MR STRYDOM Yes. I want to put to you - and I'm not going to labour the point, but what I want to put to you, just now when you were asked what you saw when you looked out of the window, you again referred to people in black walking on the sides. Now you're changing your version. CHAIRPERSON Well you have to understand that in the context of his evidence, he was being asked in regard to the events that occurred prior to his house being attacked and now he's being asked about the events after his house was attacked. That's why ...(indistinct) had no basis, because he was now being asked, not about the balaclava people that he saw before, but whether he saw them after the attack. MR STRYDOM Yes, Chairperson, that ...(intervention) CHAIRPERSON That is different from what was canvassed. MR STRYDOM Ja, that's exactly my point. I'm not going to take it further, I'll argue that, it's a matter for argument, what remains. In your evidence you used the words: "They left and went into the forest" Can you just explain that, why did you refer to "forest"? MR BALOYI I would not know what they did there in the forest, they were just walking along. They were going back. MR STRYDOM Yes, but you must assist me, you know the place better than I do. Is there a forest in the close-by vicinity? MR BALOYI Yes. MR STRYDOM If you refer to the forest, to which place do you refer? MR BALOYI It's an open space, there are no houses and that's where they were walking. We call it a forest because when a person walks through there you are not able to see them properly. CHAIRPERSON Are there any trees there? MR BALOYI No, there may be one somewhere around there, but there are not many trees. CHAIRPERSON But there is a lot of grass? MR BALOYI Yes, there is a lot of grass, at that time. CHAIRPERSON And is that why you are referring to it as "ihlateni"? MR BALOYI Yes. MR STRYDOM So the people left and walked towards that open veld between the township and Frikkie Meyer Boulevard, is that correct? MR BALOYI Yes. MR STRYDOM And it's in that open veld where you saw the two Koyokos? MR BALOYI I saw them at Umzimvubu, which is a tarred road and they were, the Koyokos were turning around that veld. MR STRYDOM Yes, but I don't understand that because Umzimvubu Street is one of the streets that run through the township and there aren't any streets in the veld, is that correct? MR BALOYI If you know Boipatong and you know Umzimvubu, you will check just how far it goes. It ends at the robots. MR STRYDOM I want you to have a look at Exhibit J ...(intervention) MR BALOYI I don't need that, I know that place very well. I ...(indistinct) that area. MR STRYDOM Umzimvubu Street ends at the end of the township and it makes a T-junction with Mthembu Street, is that correct? MR BALOYI No, the tar road starts from the township until the robots. It was closed at that point and vehicles could not pass through there. That is where the Koyokos were travelling. MR STRYDOM Yes. Now seeing that we don't know the area as well as you do, can you show on the map, if I shoe you Exhibit j, what you mean? MR BALOYI No, I cannot. I do not want to commit myself to this map, but I do know the area. MR STRYDOM Yes, but I'm going to try to make this map familiar to you. Just have a look at the map. Can you see Bafokeng Street? MR BALOYI Where I stay? MR STRYDOM Yes. Have you identified Bafokeng Street? MR BALOYI Yes, I see it. MR STRYDOM And do you see the second house from the corner there, that will your house, 732? MR BALOYI Yes, I can see it. MR STRYDOM Three streets lower down you will find Umzimvubu Street, is that correct? MR BALOYI Yes. MR STRYDOM And that Umzimvubu Street is a tar road, is that right? MR BALOYI Yes, it is a tar road. There is a school around here and it is, this is all tar road until the robots. MR STRYDOM Do you see Mthembu Street that forms a T-junction with Umzimvubu Street? MR BALOYI Umzimvubu passes through there. That is not the end of Umzimvubu. MR STRYDOM So you say that Umzimvubu extends in the direction of KwaMadala Hostel? MR BALOYI Yes, towards the small foot bridge. MR STRYDOM And does the tar extend to the footbridge? MR BALOYI From that footbridge it turns towards the robots. MR STRYDOM Yes, so what you are saying is that Umzimvubu will take you right through the veld, that road, to the footbridge close to Frikkie Meyer and then it turns right towards the robots, is that what you're saying? MR BALOYI I do not know how to explain it. This road was used by vehicles. It was closed later on, but it remains a tar road. MR STRYDOM Just correct me where I'm going wrong. If you drive in Umzimvubu out of Boipatong township and you carry on in the direction of the footbridge, can you carry on with that road till you get to the footbridge? MR BALOYI It turns around there. There tar road will be there and the footbridge just somewhere around there. MR LAX Mr Strydom, sorry, if one looks at M1, I think what he's trying to describe, I can't say for sure, but there's something apparent there. Maybe if you show him that photograph he may be able to explain because the portion that you're referring him to on the map is blank, there's nothing beyond that and so the context is completely lost. MR STRYDOM Yes, I understand that. I'm going to show him the map now, but before I do I just want to get him to commit himself on something. You say that the tar road extends to the bridge, is that what you are saying? MR BALOYI No, I'm not talking about the bridge, I am referring to a small footbridge. That is where the road turns, it bends and then goes towards the robots. MR STRYDOM Yes, I understand that, but before you make the turn - I understand you can't drive over the bridge, but before you get to the bridge, the portion from the township to the bridge, can you describe that road? MR BALOYI You would walk straight and come across the footbridge and then the road turns in that direction towards the robots. MR STRYDOM That section or portion from the township before you turn, but up to the bridge, is that a tarred road or not? MR BALOYI It is a tar road, it has always been a tar road. It is the main road at Boipatong. MR STRYDOM I want you to look at the photograph M1. I'll show you my copy, it's the only copy I have. Just have a look at that Exhibit M1 and see if you can orientate yourself. It's an aerial photo. MR BALOYI I can't do that, on that one. ...(indistinct) know that place. (sic) MR STRYDOM Just tell me, do you understand the photograph or not? MR BALOYI I see the photograph but there are some red areas where I cannot make out what those places are. I cannot see properly. MR STRYDOM Do you see the township, Boipatong? MR BALOYI I just see red areas. If you say that is Boipatong, alright. MR STRYDOM I put to you that is Boipatong you see, the very small houses that you call red areas. I want to point number H ...(intervention) MR BERGER Chairperson, just for the record, the witness said to Ms Cambanis: "I can't do this". I don't know if that got onto the record. He said it in English. CHAIRPERSON Would you show him what, where H is and tell him what that point stands for. MR STRYDOM I want to put to you that point H depicts, although you can't see it clearly, that is the bridge, that's the footbridge you've been referring to. MR BALOYI Yes. So there's a bend here, an S-bend here. MR STRYDOM Ja. MR BALOYI To the right. INTERPRETER There is a bend to the right. MR STRYDOM Yes, and one can make out on that photograph some road or footpath that runs from the township to that point, is that correct? MR BALOYI From that open space you can see this area. You can even see the cars travelling along Frikkie Meyer. CHAIRPERSON That is from your house? MR BALOYI Yes. CHAIRPERSON Ja, alright. MR BALOYI You can even see the cars. If maybe there is an accident at the robots you can witness all that from my home. MR STRYDOM Yes, but all I want you to have a look at on that photograph, you can see there's some footpath or road taking you from the township through to that point H, that's the bridge. Do you see that? MR BALOYI Yes, I see it. MR STRYDOM And you say that road is a tarred road? MR BALOYI The tar road starts from the township. It is a very old road that was even there when the township was opened. MR STRYDOM Now if you use that road as a starting point, where did you see the Koyokos when you came out and reached the position where you could see ...(intervention) MR BALOYI I saw them on the tar road, on the same tar road. I'm not referring to any other place, I'm speaking about that tar road that turns as you proceed towards the robots. MR STRYDOM Now did you see them close to a bridge or close to the township? CHAIRPERSON The footbridge? MR STRYDOM Ja, the footbridge. The Koyokos, did you see them close to the footbridge or close to the township, or in the middle? MR BALOYI They were following - the one was parked behind the other. We were watching them. And people were walking along that open space. We were watching them as they drove along. CHAIRPERSON With reference to the footbridge, can you say where these Koyokos were? MR BALOYI They were close to the footbridge, but one was already up in front. MR STRYDOM Had the one already made the turn - sorry. MR BERGER Mr Baloyi needs his glasses, and that might make it a bit easier. MR STRYDOM I take it he hasn't got them here. CHAIRPERSON You don't have to look at the map, just tell us, with reference to the footbridge how far these Koyokos were. MR BALOYI As you have already mentioned, when the tar road, when the road approaches the footbridge, it turns around there. There was Koyoco parked next to the footbridge and there was another one in front of that one, further up. CHAIRPERSON It wasn't parked, was it? MR BALOYI They were driving by slowly. They did not park. They were on duty, so they were not parked. MR STRYDOM So the first time when you came out of your house now to look in that direction, that's the first time you saw the Koyokos and they were at that position close to the footbridge, moving slowly? MR BALOYI Yes. MR STRYDOM And the attackers, where were they? MR BALOYI They were moving along in the veld and they were proceeding towards KwaMadala Hostel. MR STRYDOM Yes, but were they in the vicinity of the two Koyokos or were they behind them or in front of them or what? MR BALOYI I do not know how to explain that. Whether they were in front or next to them, I cannot comment on that. MR STRYDOM And there are no Apollo lights in that veld area, it's a dark area, isn't it so? MR BALOYI The map indicates that there are no lights there, doesn't it? There are no lights. There are lights only at Frikkie Meyer, but they light up the area very well, I can see what's happening around there from my house. MR STRYDOM What kind of lights will you find at Frikkie Meyer? MR BALOYI There are different lights, some are yellow, some are some other type. MR STRYDOM Street lights, is that what you are referring to? MR BALOYI I'm not referring to the lights you find in the township, they are the sort of lights you find in town. MR STRYDOM Now do you maintain that from your position in the township, you could see what was going on close to the bridge, in the dark? MR BALOYI We were watching, we could see people walking along. The area was lit up there. Even though there were no lights in that open space, but you could see, still see people. MR STRYDOM Ja. MR BERGER Chairperson, the witness had also said the one Koyoco was near the footbridge, the other one had already turned. If one looks at my learned friend's map, that road does turn at the footbridge and the witness said the other one was further up. MR STRYDOM Can I just have my map back, I just want to see. I want to put to you that from the township to Frikkie Meyer Boulevard is approximately 350 metres. Now I don't know if you know about metres, but I would say about three-and-a-half soccer fields, a distance of three-and-a-half soccer fields. You can fit them in the length. Would that be a correct estimate? MR BALOYI You are the person who measured the place, how am I supposed to know about it? MR STRYDOM From your house to Frikkie Meyer Boulevard is not close, it's a long distance. MR BALOYI It is not a long distance. CHAIRPERSON Just give me that distance again. MR STRYDOM 345 metres. CHAIRPERSON Okay, and this is from where? MR STRYDOM From the side of the township to Frikkie Meyer Boulevard. CHAIRPERSON Which side of the township? MR STRYDOM From Mthembu Street - from the western side of the township to Frikkie Meyer. CHAIRPERSON What point on the western side, from what point on the western side? MR STRYDOM No, it's just a general - seeing that the township ends with a straight line, it can be from any point at the edge of the township to Frikkie Meyer. CHAIRPERSON Okay, to what point? MR STRYDOM If you take a straight line from the edge of the township, from Mthembu Street to Frikkie Meyer, then it's 345 metres. - approximately. CHAIRPERSON Yes. MR STRYDOM When you saw the two Koyokos more-or-less in the area of the bridge, where were you standing? MR BALOYI I have to repeat myself 10 times. We were standing outside and we were watching. There were shapes moving. After you have been attacked you will not just look anywhere else, but at where your attacker was going. MR STRYDOM I just want to know, did you stand in front of your house or did you move from your house in the direction of Mthembu Street? MR BALOYI We were outside. Mthembu Street would be in front and there was an open space around there and this is where people were walking. MR STRYDOM I want to put it to you that there were not two Koyokos at that point, as you described it. MR BALOYI I hope you know better. What I know is that I saw two Koyokos and some were outside the Metal Box and as I stated yesterday, there was a light that was fired upwards and then the area was lit up and after the people had proceeded towards KwaMadala, the Koyokos regrouped and they also proceed in that direction. If you want to say those were not Koyokos, it is up to you. MR STRYDOM I want to put to you that the attackers did leave Boipatong from Bafokeng Street and they did move across that field towards that small bridge, but they were never close to any Koyokos. MR BALOYI So what do you want me to say? As I told you, they left Bafokeng, proceeded towards the open space and the Koyokos were right up in front. They had travelled along Umzimvubu and as they were proceeding, the attackers were proceeding, they were going towards them and they went from there towards Frikkie Meyer and then further on towards the hostel. MR STRYDOM Can you say the attackers made use of that footbridge to get onto Frikkie Meyer Boulevard? MR BALOYI Some of them did use the bridge, but a few did not, they went another way towards the robots. MR STRYDOM So if you say a few, you say the majority of the people crossed the bridge and only a few went up towards the robots, is that what you are saying? MR BALOYI Yes, that is what I'm saying. CHAIRPERSON Did the majority of people use - did you say the majority of the people used ... MR STRYDOM The bridge. CHAIRPERSON ... the bridge. MR BALOYI Yes, that is the way that they used. Yes, a few went up towards the robots. MR STRYDOM When did you see the other police vehicles close to the trees? - that's now in Nobel Boulevard or close to Nobel Boulevard. MR BALOYI One of them had been, the one that had been parked at Amatola and another one had been parked under a tree and they regrouped together with a smaller vehicle. MR STRYDOM I just want to know, in relation to the time span or the time when you saw the other Koyokos close to the footbridge, now did you see the other vehicles after that, before that or simultaneously? MR BALOYI I first saw the vehicles that were outside Metal Box and when that, something was fired, I was able to see the other two. MR STRYDOM The other two, where, which ...(intervention) MR BALOYI I've already mentioned that they were travelling along Umzimvubu. MR STRYDOM Could you only see the other two vehicles travelling in Umzimvubu when the flare, or a flare or something was fired? MR BALOYI I don't know what to say now. Please listen carefully, please listen carefully. I don't want to repeat this. Two Koyokos were parked outside Metal Box, together with a smaller vehicle, I think it is an Nyala. There were three vehicles there. Two were travelling along Umzimvubu Road. In total there were five vehicles. MR STRYDOM Where was this flare fired? MR BALOYI They alighted from the Koyoco. They were standing on the ground, that is white people, and they fired this flare. We were watching as they did this. MR STRYDOM So white people fired something into the air that lit up the area, is that right? MR BALOYI That is correct. MR STRYDOM All I want to know is where these white people were when this was done. MR BALOYI What do you mean? I don't understand you. MR STRYDOM Where were they standing? Did you see them standing at a certain place and they fired a flare? - we call it a flare MR BALOYI They were standing next to the Koyokos. MR STRYDOM Are you referring, I just want to tell - you're referring to the Koyokos that were at that stage close to the footbridge or the other Koyokos outside Metal Box? I just want to know that. MR BALOYI I said three Koyokos were parked under a tree near the Metal Box gate. That is where the flare was fired. The other two were just travelling along the streets, this other street, Umzimvubu. MR STRYDOM So the flare was fired close to Metal Box? MR BALOYI I said the three vehicles were parked under a tree nearby Metal Box. That is where the flare was fired and the area was lit up. The other two were just travelling along Umzimvubu. MR STRYDOM How do you know white people fired the flare? MR BALOYI I can see that you are white, I could also see that they were white. What do you want me to say? If you see a white person, wouldn't you say you saw a white person? MR STRYDOM So from your position close-by your house, you could identify if a person is white or black if that person was standing close to Metal Box? MR BALOYI The people who were driving Koyokos were white. I've never seen a black person driving a Koyoco. MR STRYDOM Is that why you say a white person fired a flare, because you assume the driver did that? MR BALOYI They alighted from the vehicles. I could clearly see that they were white. MR STRYDOM Chairperson, would this be a convenient stage to take the adjournment? CHAIRPERSON ...(indistinct) MR STRYDOM I'll try to limit myself to half an hour. CHAIRPERSON ...(indistinct) MR STRYDOM Well I'll try to make it a half an hour. CHAIRPERSON: ...(indistinct) MR STRYDOM I estimate half an hour. CHAIRPERSON No, I'm not ...(indistinct) MR STRYDOM No, I understand you're not limiting me, Chairperson. I think I'll be another half an hour. CHAIRPERSON That will ...(indistinct) MS CAMBANIS Chairperson, before the adjournment, may I just correct a wrong instruction I gave to Mr Berger. Mr Baloyi did not say anything about glasses, all he said is that "I cannot do this" Thank you. CHAIRPERSON We'll take an adjournment now and we'll come back at half past eleven. COMMITTEE ADJOURNS ON RESUMPTION MACHIHLILE WILSON BALOYI (s.u.o.) CHAIRPERSON Yes, Ma'am? MS THOMAS Thank you, Chairperson. I have had an opportunity to consider the documents, peruse them and take instructions on the basis of the documentation and we have come to a conclusion that we may proceed at eleven thirty, if that is suitable to all the members. CHAIRPERSON What about the - have you had time to consider those who are assisting you? MR LOWIES Thank you, Chair, I haven't had any objections to us proceeding at this stage. I don't know what the position of Mr da Silva is, I didn't speak to him. MR DA SILVA Mr Chairman, in the time available to me, I've had a look at the document. I haven't had a proper look at the document, but in the light of my instructions being that we are not a party to the application and that my clients abide by the Committee's decision, I cannot, in regard to the application proceeding, I cannot see any objection in that line. CHAIRPERSON Yes, very well. Mr Botha? MR BOTHA No objection, Mr Chair. CHAIRPERSON Do you abide by the decision of the Committee? MR BOTHA Indeed, Sir. CHAIRPERSON Yes. And Mr Lowies is taking the matter on behalf of the, Advocate Pretorius and Mr Strydom, is that right? MR STRYDOM Ja, that's correct from my side. CHAIRPERSON The two of you have no objection to the matter proceeding? MS PRETORIUS No objection. MR STRYDOM I haven't got an objection. CHAIRPERSON Ms Tanzer? MS TANZER I too have no objection and also abide by the decision of the Committee. CHAIRPERSON Yes. Where is Mr Mey? MR BOTHA He's sitting here at the back, Mr Chairman. CHAIRPERSON Ordinarily I would have preferred to finish with this witness first you know, before we hear argument, but unfortunately one doesn't know how long it will take and I would hate to inconvenience Adv Thomas, who has to come all the way from Pretoria for this argument. Mr Lowies has yet to cross-examine and Adv Pretorius and Adv da Silva and Adv Botha and Ms Tanzer. Mr Mey, where do you stand? Would you just come up to the microphone please. Did you receive the document that was submitted by the TRC yesterday or today? MR MEY I've received it late yesterday afternoon, Mr Chairperson. CHAIRPERSON Yes. What is your position in regard to the application? MR MEY I've got no objection if they proceed now and I abide with the ruling of the Committee. CHAIRPERSON Very well. MR MEY Thank you. CHAIRPERSON Mr Baloyi, unfortunately we have to interrupt your evidence at this stage and deal with a matter which we were supposed to deal with yesterday morning, but because of other difficulties we could not. So we will deal with that matter now and thereafter we will proceed with your evidence. Do you understand that? MR BALOYI Yes. CHAIRPERSON Yes, very well. WITNESS STANDS DOWN MS PRETORIUS Mr Chair, before we start, may I just place on record that the van coming from the prison in Pretoria was involved in an accident this morning, nobody was injured, but according to the prison authorities, Victor has to go back and be seen by a district surgeon, so he won't attend the rest of today's hearing. CHAIRPERSON Okay. Very well, we'll note that. Yes, very well. MR LOWIES IN ARGUMENT Thank you, Chairman. Chairman, as is clear from the Notice of Application, there are basically three applications in this matter; paragraph 1, paragraph 3 and paragraph 4, each with its own subsection. Chairman, at this stage I have to inform you that as a result of the documentation that we received yesterday from the TRC, the ones that were handed to us by Mr Zuko Mapoma, the ones that were the subject of discussion, it appears that at this stage, Chairman, prayers 1 and 4 actually fall away. There is a ...(intervention) MR LAX One ...? MR LOWIES Paragraph 1. That's the amnesty application by Andries Nosenga. The heading is at the application by Andries Nosenga. CHAIRPERSON Yes, this is the one that deals with, that requires an investigation, is it? MR LOWIES That's correct. CHAIRPERSON Alright. MR LOWIES And 4. CHAIRPERSON And 4. MR LOWIES Ja. Chair, I have to - sorry. CHAIRPERSON Yes, that leaves ...(intervention) MR LOWIES The declarator. CHAIRPERSON What about 2? MR LOWIES 2 is a preamble. It's a preamble to 3. CHAIRPERSON Oh, okay so - oh, 2 and 3 are together? MR LOWIES Yes, 2, 3 and 4 are together. 2 you could also regard as a preamble to 4. But as I said ...(intervention) CHAIRPERSON Wait a minute, 4 falls away, doesn't it? MR LOWIES It does. CHAIRPERSON Alright, so we're left with 2 and 3. MR LOWIES That's correct, Chairman. CHAIRPERSON And all that you require - it has to do with the declarator? MR LOWIES That's correct. However, before I proceed with that, I would just like to mention two aspects pertaining to prayers 1 and 3, if it's convenient to you. Prayers 1 and 4, my mistake. CHAIRPERSON Okay, let me just make a note of this. Shall we mark this document DD? I think that's the next exhibit. Yes, very well. Okay, very well, so Exhibit DD will the response of the TRC, dated 11 May 1999, together with documents annexed thereto, which is in response to a letter dated 5 May 1999, addressed to the TRC by the attorneys who are acting for the applicants? MR LOWIES That's correct, Chairman. CHAIRPERSON Very well. MACHINE SWITCHED OFF CHAIRPERSON Was this off? MR LOWIES Thank you, Chairman. Chairman, pertaining to the documentation handed over to us and pertaining to prayers 1 and 4, I must first of all place on record the following and express my gratitude towards the TRC, specifically towards Mr Kjellberg and Mr Mapoma for the information supplied to us, and in his absence also, Mr Prior. It seems, Chairman, pertaining to those two prayers, that the channels of communication is open. We're not happy with everything that we've received and we will no doubt in the process have communications between the parties, but the channels are so open that I don't think at this stage it warrants an intervention by the Committee and therefore I would say, Chairman, that prayers 1 and 4 should actually fall away because we are in a process and the channels are open regarding that. That is the purpose of what I'm saying to you now with respect, and that is I don't think that it merits any, it's of academic value, it merits any further aspect. Regarding the declarator which is the 3rd prayer, Chairman, I have to ...(intervention) CHAIRPERSON Mr Lowies, those channels have always been open. MR LOWIES I was unaware of it, but it seems like it has been, Sir. CHAIRPERSON You can only blame Mr Strydom and Adv Pretorius for not telling you that the channels are open. MR LOWIES I don't think they will accept liability, but I will do so, Chair. Chair, then regarding the 3rd, may I just as an introduction, say the following - and it had been mentioned in the past before, if one has ...(intervention) CHAIRPERSON ...(indistinct) MR LOWIES Prayer 3. If one has a look at the annexure to the Notice of Application and the findings by the TRC, there are basically three paragraphs in the annexure which is a concern to the applicants. And those are ...(intervention) CHAIRPERSON Would you direct my attention please? MR LOWIES Thank you, Chairman. CHAIRPERSON Where does that occur? MR LOWIES It's the fourth - my mistake, after page 7, there is an annexure to the Notice of Application. CHAIRPERSON I hope I don't have to repeat, that people will cellphones, would they please switch them off. Is that the ...? MR LOWIES The annexure to the Notice of Motion. CHAIRPERSON Findings by the TRC? MR LOWIES That's correct, Chairman. CHAIRPERSON Yes, very well. MR LOWIES The second paragraph, Chairman, is of relevance here "The Commission finds that KwaMadala Hostel residents, together with the police, planned and carried out an attack on the community of Boipatong and the surrounding informal settlement, Slovo Park, on 17 June 1972 ..." It should read 1992, of course, because the TRC was not in existence in '72. Secondly, in other words the 3rd paragraph: "The Commission finds that the police colluded with the attackers and dropped them off at Slovo Park." And then the 5th paragraph, Chairman: "The Commission finds that the police were responsible for destroying crucial evidence, in that they erased the tapes of the transactions in the control room of the ISU." And then the 7th paragraph, Chairman: "The Commission finds that the SAP colluded with the KwaMadala residents in planning the attacks. The Commission finds further that they obstructed the ends of justice by tampering with the evidence relating to the matter. The Commission finds further that two of the suspects died whilst in custody of the police." Now Chairman, as a result of these findings which were published, and as a result of the documentation attached to the affidavit of Fredrech and Malan, my clients were concerned - and this is the purpose of this application, that the matter may have been, or may be prejudged. And please, Chairman, there is no accusation that it is. There is a concern that it may be as a result of the fact that this Committee sits as an extension of the TRC, the Commission. The argument is, in a lay person's mind, the following, but it's one and the same. Now to canvass this further I would submit the following is relevant, and that is why I would submit there is a need for this, yes, I must concede immediately, Chairman, that there is no way that the TRC can review a decision regarding amnesty by this Committee. And that is trite law because it is inaccurate as such, in the Act. However, Chairman, when one deals with - and you will remember I handed up summaries of three cases, for instance the BTR matter and the MONING matter and so forth, when one deals with a likelihood of bias or a perception, very important I submit, only a perception, then one has - sorry? CHAIRPERSON Yes, okay. MR LOWIES ... when one deals with an aspect such as that, Chairman, the point that I would like to make is, the test is whether a lay person, a lay litigant in the position of an applicant for instance, if we bring it closer to this matter, would have a perception that there may be bias. It goes no further than that. Now Chairman, my submission in regard to the declarator, or the alternative prayer, which I will discuss, elaborate on just a little bit later, is the following on behalf of the applicants, ...(intervention) CHAIRPERSON Well just before you go on, let me just make sure that I understand the basis of the applications. Put simply it amounts to the following: The Truth and Reconciliation Commission has issued a report in which it has inter alia made the findings which appear in the annexure to the Notice of Motion. MR LOWIES That is correct. CHAIRPERSON The essence of these findings is that the police colluded with KwaMadala residents to attack Boipatong. MR LOWIES That is correct, Chairman. CHAIRPERSON That is an issue which is hotly disputed. The Amnesty Committee is an arm of the Truth and Reconciliation Commission. MR LOWIES That is correct, Chairman. CHAIRPERSON Therefore, it appears as if the issue of whether the police were involved, has already been decided by the Commission and by implication the Committee. MR LOWIES That is correct, Chairman. CHAIRPERSON Okay. Therefore, the Committee - well, therefore there is a fear amongst the applicants that they may not be judged impartially, consistent with the Constitution. MR LOWIES Correct, Chairman. CHAIRPERSON But if the - that's what it is okay. Well if one accepts the proposition, isn't it, is the result not therefore that the applicant would not under any circumstance apply for amnesty, because whatever Committee, albeit a different one, would still remain part of the Commission and by implication would have made those findings and therefore there is no Committee which would be perceived as being impartial and therefore the applicants are not able to approach the Commission for amnesty? MR LOWIES The quantum leap from the last portion where I have agreed with you, Chairman, to this submission I would submit is too big. I would like to see, and this is what the applicants are requesting from you, an intermediate situation whereby this Committee gives its viewpoint in public where they can hear it, that this Commission does not, or do, consider itself as being bound by that. Because Chairman, I would submit that the essence of the application is actually the following; the essence of the application is not one whereby the Commission, this Committee should withdraw or recuse itself as a result of the finding by the Commission. But what I would suggest is very important, and this is in the interest of transparency, that I would suggest inter alia, that once there is a decision like that, which has been widely publicised, the next aspect is, you are with respect seen as an extension, but if this Committee gives a final ruling on an issue which may be in the mind of a lay person, and this is the nature of the declarator, that it does not regard itself as being bound, that is not of course a problem. On the other hand, with respect, Chairman, I can see - and I would definitely have to take further instructions regarding that, if your finding is; I find myself bound by these decisions of the TRC, then of course the whole matter has to be reinvestigated and I will have to get instructions from my clients. But what I'm stating at this stage is the following; I postulate two scenario, either the Committee, if in agreement with what I'm suggesting, makes a declarator stating that it does not consider itself as being bound, in the interest of the applicants, setting their minds at ease, then that is the end of story. The second scenario which I do envisage and which is also possible, is of course that you do find, I would submit highly unlikely that you would find, but still if you do find that you are bound by that decision and you are just sitting here as a rubber-stamp, of course then I'll have to take further instructions, but I don't think that we need to go to that stage at this stage. So what I'm saying ...(intervention) CHAIRPERSON Why are you submitting that it is highly unlikely that we will find that we are bound by the decision of the Commission? MR LOWIES That is a personal opinion and, I see it inter alia as I've mentioned before, I don't want to argue the matter on behalf of the Committee, but I see it inter alia in the fact that you have the specific power in terms of the Act, or nobody has the power to review the Committee's decision, but on the ...(intervention) CHAIRPERSON But isn't that a complete answer then to your submission? MR LOWIES But Chairman, I would submit that it is necessary that an order in that regard be made in public, where the applicants have a fear ...(intervention) CHAIRPERSON But Mr Lowies, you can't blow hot and cold. MR LOWIES I beg your pardon? CHAIRPERSON You can't blow hot and cold. If your submission is that having regard to the institutory scheme which governs the Amnesty Committee, the legal position is that the Amnesty Committee cannot be bound by the decision of the Commission, isn't that the complete answer to your submission? MR LOWIES I would submit no, Chair, and the reason why, and I have initially referred you to that, the test on whether there is a likelihood of bias is whether a lay person in the position of the applicants would see it as such. Now what I've said is, and I ...(intervention) CHAIRPERSON No, but the position of the lay person, if the lay person does not understand how the Committee works and what is it that can satisfy the lay person, because the legal position is there, you have considered, albeit in a feint tone, that that must be so. Now if that's your position, now what is it that this Committee can do to allay the fears of the lay person that you have in mind? MR LOWIES Chair, I would like to phrase it as follows; I would like to say that there are two scenarios as I've indicated to you, the one is you find that you are bound, the other one is you find that you're not bound, but the situation does not answer the prayer which the applicants have. Their argument simply amounts to the following; you are belonging to the same body, being an extension of the TRC, therefore ...(intervention) CHAIRPERSON I think the issue is not so much whether we belong to the same, we are part of the same body, the issue what are the powers of this Committee, because I think it is in the, the answer to your application primarily lies in the powers of this Committee. I think that's where the, and that is where the answer ought to be sought. I mean if the Act is clear on what the powers of the Committee are, and notwithstanding that the lay person that you have in mind is still not happy, what I want to find out from you, what is it that this Committee can do to allay the fears of the average lay person that you have in mind? MR LOWIES Chairman, what I would suggest is the following; I have said that I think - and I did not make a concession, I have said that I think it is unlikely that scenario two as I've described it, may be a finding by this Committee, ides that you are bound by it, in other words you are a rubber-stamp of that. The Act does not say that you are a rubber-stamp or you are not a rubber-stamp, it is silent on that. One thing that the Act does say is that the TRC cannot review what you are doing when it comes to amnesty. It's got powers of review regarding various other aspects, but regarding the amnesty itself, it's got no power of review, as I see the Act. CHAIRPERSON Well you see, it seems to me that for the lay person's viewpoint to prevail, the lay person would have to go further and say; my fears are that notwithstanding the evidence that would be before you, which suggests otherwise, you are going to ignore that evidence and you are going to find against us. If the lay person can't go that far, if he can't suggest we're going to ignore the evidence, then I can't see how the fears come into the picture. Because once it is accepted that we've got to decide the matter based on the evidence before us, I can't see how, what the Commission has found based on the material that was before it, it can come and influence us. Because if we do that, it would seem to me that it would be gross dereliction of duty, because we have to decide the matter based on the evidence before us. So unless your lay person goes further and says; I fear that in light of this report, these findings, this Committee is going to ignore the evidence before it and will find against us on this issue. MR LOWIES Chair, I would submit the leap from what they want in prayer number 3 to the fear, is too big in this argument or the proposal that you've put to me. What I would suggest is the following, Mr Chairman; there is not clarity, even where we are sitting today, as to whether or not you find yourself as being bound by that decision ...(intervention) CHAIRPERSON It may not be clear in your mind, but I'm sure in the mind of many others it is quite clear what the Act requires of us. MR LOWIES Chair, be that as it may, what my opinion specifically is as a lawyer is immaterial at this stage and in any other person's opinion, as to how you may go about. But the fact is there is no law firstly, stating that you are not bound by it. The only law that there is, is a section in the Act which says you cannot be reviewed. Now with respect, the argument is, those two scenarios which I've postulated in the beginning, they still stand, it's either this way or that way and there is no decision as to it yet. Yes, we may say at a stage, or a lawyer may say; I read the conduct of the Commission as being X or going in favour of this point of view or that point of view, but still Chairman, there is no decision on that. There is no law on that and that is what you are requested to do. I would submit that the reason why this application is brought, or the motivation for it must be clear, but I don't want to make that quantum leap from the making of that judgment to a bias by this Committee, and therefore I would suggest that there is an intermediate position, and that position is; are you bound or not and then that must be decided by yourself, with respect. There is a possibility that you may find on the probabilities in the one side or the other, but still ...(intervention) CHAIRPERSON How do we decide that? MR LOWIES Chairman, you interpret the Act and you make a decision as to that, so that's it's binding on the applicants and the families. CHAIRPERSON That's what I have been trying to put across to you, that the answer to your submission lies primarily in the scheme of the Act. MR LOWIES But it's not clear, with respect Chair, that is the point that I've been driving at, and we want you to make it clear so that the applicants can also see where they're going. There may be a strong feeling that you're going in direction X, but it is not clear. CHAIRPERSON If that's their feeling then they must tell us that. MR LOWIES Chairman, I cannot take it further than to state that I think that you should make a decision as requested in the Notice of Motion. CHAIRPERSON So what prayer are you asking? MR LOWIES A declarator which incorporates prayers 3.1 and 3.2 ...(intervention) INTERPRETER The current speaker's mike is off. MR LOWIES Now 3 ...(intervention) MR LAX Sorry, just repeat that for the purposes of the translation. MR LOWIES Thank you, Chairman. A declarator which incorporates prayers 3.1 and 3.2, both of them. CHAIRPERSON What precisely is the order you are asking us to make? MR LOWIES Whether the Committee regards itself as being ...(intervention) CHAIRPERSON What the Notice of Motion does, it simply says: "Application is hereby made that the Committee issues a ...(indistinct) declaring the status and the nature of the TRC findings." What do want us to make in that regard? MR LOWIES Whether it regards itself as bound by the said TRC findings, the ones which I have highlighted in my argument. CHAIRPERSON I want you to tell me what order, if we are with you, should we make? That is what I'm asking you. MR LOWIES Chairman, the order that you can make is one of two, either you find yourself in agreement with the findings of the TRC, that is the one which you have to decide on, or the alternative is you do not find yourself being bound by that. CHAIRPERSON In simple terms, I am asking you to tell me what is the draft order that you are prepared to accept. MR LOWIES Oh, I see. Chairman, you must first of all make a decision, but once you've made a decision, I would like an order along the following lines; that the Committee does not regard itself bound by the said TRC findings. - more-or-less as stated in 3.4. Of course you have a choice, to say that you do find yourself, but my ...(intervention) CHAIRPERSON Is that the order that you want? MR LOWIES That's the one that I would prefer, the first one. I just ask the first one. CHAIRPERSON Is that all that you're asking for? MR LOWIES Thank you, Chairman. CHAIRPERSON Do you have any further submissions to make? MR LOWIES I have none. CHAIRPERSON Yes, very well. Yes, Mr Mapoma? MR MAPOMA IN ARGUMENT Thank you, Chairperson. Chairperson, to start with, from the submissions made by the applicant it is quite clear that the applicants' representatives acknowledge that the provisions of the Act make the Amnesty Committee a Committee capable of making its independent decisions with regard to the amnesty applications. And it is acknowledged by them as well that the Committee cannot be influenced by the decision of the, the findings of the TRC, because it has got its own powers. Such powers, Chairperson, are derived from Section 4(c) read with Section 5(e), and the provisions of Chapter 4 of the Promotion of National Unity and Reconciliation Act 34 of 1995. In particular, Chairperson, Section 5(e) provides that no decision of the Amnesty Committee may be interfered with by the Commission. Those provisions, Chairperson, depict the independence of the Amnesty Committee. Those provisions were properly interpreted, Chairperson, by the decision in AZANIAN PEOPLE'S ORGANISATION AND OTHERS v THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS 1996(4) SA671. In particular Judge Mohamed, on page 685, paragraph E the Judge says - if I can quote, Chairperson: CHAIRPERSON No, you don't do that. MR MAPOMA Oh, thank you, Chair. That is intended, Chairperson, to illustrate the independence of the Amnesty Committee. I do not think, Chairperson, I have to belabour the point, especially in the circumstances now that the applicants themselves acknowledge these provisions. What seems to be the crux of the matter therefore, Chairperson, is the perceived bias from the applicants, and it is my submission, Chairperson, that I agree with my learned friend that the test is the perceived bias. It is my submission, Chair, that perceived bias must be reasonable in the circumstances. And it is my submission that with respect Sir, the bias which is being contended now is not reasonable. I'm saying this, Chairperson, because the Act is ...(intervention) CHAIRPERSON Well isn't it your submission that having regard to the provisions of the Act, in particular those that you have directed our attention to, if the applicants continue to have this suspicion, it cannot be reasonable? MR MAPOMA Precisely, Chairperson, that is my submission. I'm saying this, Chairperson, more so when the applicants are legally represented and the provisions of Section 34 of the Promotion of National Unity and Reconciliation Act intended that legal representation for the purpose of enabling the applicants to be provided with the proper interpretation of this Act, and that proper interpretation of this Act has been provided to the applicants through their legal representatives. It is on that basis, Chairperson, that I submit that that alleged perception perceived bias cannot be reasonable in the circumstances. I proceed, Chair, to go further to the powers of this Committee ...(intervention) CHAIRPERSON If the applicants persist in entertaining the suspicion which we are told, and I should observe that none of the applicants have said so under oath, but we are told that they have that suspicion, notwithstanding the provisions of the Act, what is it that this Committee or any other Committee of the TRC can do to allay those fears? Is there anything? MR MAPOMA Chairperson, there's none that can be made in the circumstances. CHAIRPERSON Yes, yes. MR MAPOMA I want to go further, Chairperson, to look into the powers of the Amnesty Committee, whether it can issue a declarator on the status of the findings of the Human Rights Violations Committee. I submit Chairperson, that the Amnesty Committee has no power to make such a declarator because, Chair, the provisions once again ...(intervention) CHAIRPERSON The Amnesty Committee is a creature of stature, it has no other powers other than those that are set out in the Act. MR MAPOMA Yes, Chairperson. CHAIRPERSON Is there anything in the Act which gives this Committee the power to issue a declarator? MR MAPOMA There's none, Chairperson. CHAIRPERSON Yes, very well. Yes, what's your next submission? MR MAPOMA Chair, I'm not taking the matter any further now, I think I've covered all the aspects. CHAIRPERSON Yes, yes. MR MAPOMA Thank you, Sir. I pray that the application be dismissed. CHAIRPERSON Yes, very well. Mr Berger? MR BERGER IN ARGUMENT Thank you, Chairperson. Chairperson, my learned friend, Mr Lowies ...(intervention) MR LAX Just hold on, I'm just making notes. CHAIRPERSON Yes, Mr Berger? MR BERGER Thank you, Chairperson. My learned friend, Mr Lowies, says simply that prayers 1 and 4 fall away, but Chairperson with respect, the papers that were produced last Monday contain the most scandalous allegations against a number of people, including my colleague, Ms Cambanis, her partner Ms Nichols, their firm, Mr Kopedi, Mr Tshongwene, myself, and it's not good enough to simply say that those prayers fall away, without a public withdrawal of the allegations against us. CHAIRPERSON Mr Berger, the issue that is before this Committee is the application. We are now told that he is not persisting with the prayers that he's indicated ...(intervention) MR BERGER Indeed, indeed. CHAIRPERSON I'm not going to call upon him to make any public withdrawal ...(intervention) MR BERGER But, Chairperson ...(intervention) CHAIRPERSON We're concerned with the application that is before us. If you want to pursue that matter, you can peruse that matter in a different forum, not here. What are we supposed to do? Are you going to ask us to deal with those prayers when they are longer in issue? MR BERGER Chairperson, this application is a public document now, the allegations have been made public in this forum, and I submit that it's not good enough simply to withdraw the prayers, the allegations must be withdrawn. CHAIRPERSON Yes, yes. MR BERGER Chairperson, I don't know why the seriousness of the allegations are brushed aside. They have been made public and they stand until they are withdrawn. And if this application had been proceeded with and if this application had been dismissed, that would have been one thing, but the allegations still stand despite the fact that the prayers have been withdrawn. And they are most serious allegations which have been made. I don't suppose it will help if I go through the application to point out which allegations I'm referring to, so I won't. My learned friend submitted to you that those allegations are simply of academic value now, that's not so, they're not of academic value. They were allegations made on the basis of opinions of a journalist and the applicants called for an investigation, and our submissions would have been that the proper place for that investigation should be here before this Committee, not some other investigation which was being called for by the applicants. In the same way as the circumstances surrounding the making of Mr Nosenga's application, were investigated here in this forum, so the other allegations of fraud and laundering through the TRC, all those allegations must now be investigated here in front of this Committee. The applicants refer to Section 5(l) and (m) of the TRC Act, which says that this Committee has the same powers as the TRC, and we would have argued that that must be read in the context of amnesty hearings. And yes, it's correct, this Committee has the power to investigate matters, but it must be done within the context of this very hearing, and that's what we would have submitted, and then those allegations against us could have been canvassed and dealt with here. Those allegations are part of, at the moment part of the record of this amnesty hearing. The allegations of laundering, of fraud, of forgery, which have been made against us, are part of the record of this very amnesty hearing, and how are they going to be dealt with if not by an investigation here before this Committee into those allegations? That is why I submit that it's not of academic interest only and it's not - I'll move on. My learned friend talks about bias and he says that his opinion as a lawyer is immaterial. His opinion as a lawyer, with respect, is most relevant and his duty is to inform his clients what his opinion as a lawyer is. And if he informed his clients that this Committee, as the correct legal position clearly is, is not bound by the findings of the TRC Report, then his clients who have employed him to give his legal opinion would then have their feelings allayed. I agree with completely with the submission made by my learned friend, Mr Mapoma, as to the status of the TRC Report and as to the powers of this Committee, this Committee has no power to issue a declarator. If the findings of the TRC report were binding on this Committee, then the evidence of, for example, Mr Baloyi, would be irrelevant. The very fact that his evidence is being entertained as being relevant to an issue to be decided by this Committee, should indicate to Mr Lowies, and through him to his clients, that this Committee is not bound and does not consider itself bound by the findings of the TRC Report, because if it were so, then Mr Baloyi's evidence would not be heard. I submit that there is nothing this Committee can do other than what it has been doing all along, to hear the evidence, and that it is for my learned friend to allay the feelings, the fears, if they exist, of his clients. I have no further submissions. CHAIRPERSON Yes, very well. Yes, Ma'am. MS THOMAS IN ARGUMENT My learned friend, Lowies, has decided to withdraw what I will call prayers 1 and prayer 4 of his application. Chairperson, a lot of allegations had been made in the affidavit with a view to support those prayers, which really put my client, being the ANC, in a very bad light. My instructions are merely Chairperson, to deny each and every allegation levelled against the ANC, insofar as it seeks to show that the ANC formed part of a scheme that was all out deliberately engineered towards indicating that there was police involvement in the Boipatong massacre, as and when it took place in June 1992. Chairperson, insofar as the rest of the prayers are concerned, I am in full agreement with what my learned friend, Mr Mapoma has submitted and it is not my intention to delay the proceedings unduly. I can therefore make no further submissions insofar as this application is concerned. MR MALINDI Chairperson, Ms Cambanis and myself associate ourselves with the submissions by Mr Berger. CHAIRPERSON Two issues. One is the basis of your application is that the applicants have a reasonable suspicion that this Committee might be biased in view of the Commission's finding in regard to the presence of the police and the role played by the police. Mr Mapoma's answer to that is that having regard to the provisions of the Act, if there is such a suspicion, such a suspicion is unreasonable. What do you say to that? MR LOWIES IN REPLY Chairman, I would submit that at this stage for the purposes of prayer number 3, it's not strictly relevant. It may be a motivation to bring, and I want to stress this, it may be a motivation to bring the declarator in terms of prayer number 3, but the applicants' point is the following; the law is not clear and if you decided you are bound, a certain aspect will have to be canvassed then, if you decide that you are not, then we proceed as the matter ... That is simply put, the attitude of the applicants. I don't think that it is necessary for you at this stage to make a finding as to whether or not there is bias, and we're not asking for you, for sure we're not asking you. We say it may be a motivation in bringing this application, but it is not an issue that you have to make a decision on. CHAIRPERSON The second argument amounts to this; you are asking this Committee to make a declaration, to issue a declaratory order as to first of all, the status of the report, is that right? MR LOWIES That is correct, in the main. CHAIRPERSON And secondly, and that is to say whether or not it is bound by that Report. That's the essence of the declarator? MR LOWIES Correct, Chairman, I couldn't have phrased it better. CHAIRPERSON Okay. The answer is the following from Mr Mapoma; he says the Amnesty Committee is a creature of statute which has no other powers other than those that are set out in the Act. Nowhere in the Act is this Committee given the power to make the order of the kind you are requesting it to make. MR LOWIES I would submit two aspects there, Chairman. The common law is applicable to you inasfar as it is applicable to administrative tribunals, and (b); one must also bear in mind that some aspects may be implicit in your duties and prerogatives that you have. May I give a good example to illustrate this in my submission? CHAIRPERSON Would you deal with the common reposition first? MR LOWIES The common law position, Chairman I would suggest is the following; a tribunal has the right to regulate its own proceedings and I think the Act goes further here as well and it tells you to regulate the proceeding. For instance, if you are requested to recuse yourself, there's nothing in the Act that says you may or may not recuse yourself, but yes, it is common law and it is accepted practice that an administrative tribunal has that authority. Now all I'm saying is, the very nature - maybe the word "declarator" is not a good word, but the very nature of this application is that you regulate your proceedings and telling the applicant, to put it in other words in other words, telling the applicants in other words; "The procedure that I'm going to follow is, I'm not going to regard myself as being by that." That I would submit is implicit in what you have, although there is no specific provision in the Act. CHAIRPERSON Why should we do that, because there is no-one here who has sought to introduce the Report to us and those findings and has called on us to accept those findings. We can only do that if someone comes up and does that. MR LOWIES But Chair, for instance, the applicants may want to do that, the applicants may want to. Nobody has done it because of ...(intervention) CHAIRPERSON They have not done so. MR LOWIES No I agree, with respect, Chairman, but that is the point. CHAIRPERSON So why should ...(intervention) MR LOWIES The matter is not settled. What if the applicants may want to? For argument's sake, just to take the point, what if the applicants may want to say; "There's a finding by the TRC (where there is) that Mr Peens has killed Victor Kheswa", and from that make certain submissions to yourself. What is the status of that? It's not been done, it's not been argued. CHAIRPERSON We will deal with that position as and when it is raised, but we simply cannot issue - that goes to the question of procedure. I agree with you, we can regulate our own procedure. But what you're asking us is to pronounce on the status of the Report, whether, are we bound by that. And that's what Mr Mapoma submits is beyond our powers. MR LOWIES My only counter argument is it relates mostly to procedure and therefore it is something which by necessary implication, is within your powers. I can take it no further. CHAIRPERSON No, further than what? MR LOWIES And of course to interpret the Act, sorry. CHAIRPERSON No further than what? You say you can't take the matter any further, I'm asking further than what? MR LOWIES No, I don't want make further submissions. That is my argument. CHAIRPERSON What is the argument? MR LOWIES The argument is, Chairman, that ...(intervention) CHAIRPERSON You are asking us to pronounce on the status of the finding and whether we are as a Committee bound by that. It's not a matter of procedure, is it? MR LOWIES I would submit the ...(intervention) CHAIRPERSON By no stretch of imagination can it be a matter of procedure, can it? MR LOWIES No, the argument goes as follows, Chairman; you have certain implicit powers, inter alia regarding procedure. CHAIRPERSON Yes. MR LOWIES Now I would say, this is akin to the powers that you have to regulate your procedure. In other words, you can say: "I have the power to state that I am not bound by that decision", and then you must give it, with respect. And this is what you are requested to do. Or you have the power to say: "I have no choice but to accept it and within that framework, this is the way that the procedure is going to be, or the application is going to be entertained." I would submit it's implicit. CHAIRPERSON Yes. MR LOWIES That's my argument, Chair. CHAIRPERSON So is it your submission in essence, that this is just a matter of procedure, whether in the course of this hearing we will be having regard to the TRC findings? MR LOWIES No, the something similar to that. I want to draw the line or I want to draw the ...(intervention) CHAIRPERSON Just before you draw any line, is it your submission that it is not a procedure, but it is something akin to a procedure? MR LOWIES Precisely, Chairman. CHAIRPERSON Okay, yes. Do you accept that if it is not a measure of procedure, we would have no power to pronounce, to issue the kind of order that you are requesting? MR LOWIES Yes, but I'd like to qualify it, provided that it's not something that one can say is within the common law and principles relating to administrative tribunals ...(intervention) CHAIRPERSON What is this common law that you're referring to? MR LOWIES This power that you have to make ancillary findings. For instance to regulate procedure; for instance to decide whether or not you should recuse yourself, which is of course not of issue, but never mentioned in the Act, something similar in that vein, in that genus. CHAIRPERSON Yes, very well. MR LOWIES Sorry, may I add a third point which I have mentioned before, but not in summary now. And of course, Chairman, you have the right to interpret the Act. CHAIRPERSON Yes, I understand that. What you're asking us in essence, is to pronounce on a matter which may or may not come before us. MR LOWIES No, not necessarily. I say the following; it may come before you, but my request is not that you pronounce on something which is uncertain. You with respect ...(intervention) CHAIRPERSON It is not before us, do you accept that it is not? No-one has sought to introduce the Report, is that right? MR LOWIES No, but it is in existence. CHAIRPERSON Oh yes, just like a whole host of other evidence that is not before us. MR LOWIES Correct, Chairman. CHAIRPERSON So it is not before us and no-one has sought to introduce it here, is that right? MR LOWIES That is correct. CHAIRPERSON Okay. So what you want us to do is that in the event of someone raising the Report, we must now pronounce on whether or not we are bound by that Report? MR LOWIES Yes, but I must qualify, I can't agree unqualifiedly with it. I must qualify that there is a specific nexus between this Committee and the Commission, and the TRC, and that by its very nature makes it relevant. CHAIRPERSON What is the new point? What is the new point that you hadn't made? MR LOWIES I have raised it just now, the fact that you must also interpret the Act. CHAIRPERSON ...(indistinct). What about that? MR LOWIES Well Chairman, with respect, I indicated to you that there are three aspects which are relevant. The first one is, you can, even if the Act does not tell you specifically that you have a right to issue a declarator, you have certain inherent rights, like for instance I've mentioned the fact of the procedure, I've mentioned the recusal aspect and the other aspect which I think is also relevant is the fact that you must also by necessary implication have the right to interpret the law. CHAIRPERSON I cannot - I don't understand this submission. I don't understand the last submission. MR LOWIES The submission is simply, Chairman, as a matter of law you must decided whether or not you're bound by a decision or not. CHAIRPERSON Yes, very well. Do you have any further submissions to make? MR LOWIES I have no further submissions. CHAIRPERSON Mr Mapoma, is there anything that you want to say further? MR MAPOMA None, Chairperson. CHAIRPERSON Yes, very well. Mr Malindi, is there anything you want to say further? MR MALINDI Nothing, Chairperson. CHAIRPERSON Mr Berger? MR BERGER Nothing, Chairperson. MS THOMAS Nothing further to add. CHAIRPERSON Yes, very well, okay. MACHINE SWITCHED OFF CHAIRPERSON The time now is about ten to one. I will give the decision at ten to two. We'll take the lunch adjournment at this stage. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Ms Tanzer, Nosenga is not part of this application, is he? MS TANZER No, as I mentioned earlier. CHAIRPERSON Yes, okay, very well. I do not propose to give any detailed reasons for the ruling which now follows, suffice to say the following R U L I N G This is an application brought by the applicants, save for Mr Nosenga, for an order inter alia that the circumstances under which Mr Nosenga's application was made be investigated. Secondly, for a declarator as to the status of the findings of the TRC, which are contained in the TRC Report of October last year. Thirdly, requesting the records of the meetings which led to the findings in issue. The applicants no longer persist in the order that the circumstances relating to Mr Nosenga's application be investigated and also in regard, with the order requesting the records relating to the findings of the TRC, however, they do persist with the declaratory order. The background to the application is briefly as follows: The TRC in its Report has made a finding to the effect that the police colluded with the hostel dwellers and took part in the attack on Boipatong. The presence of the police during the attack is a hotly contested issue before us. The applicants, all the applicants I should say, except for Mr Nosenga, have denied that the police were present during the massacre. We were told that because of these findings by the TRC, the applicants entertain a fear that the Committee may well have prejudged the issue, as the Committee is part of the TRC. Unless the Committee indicates whether it is bound or not bound by the TRC findings, we are told the applicants may well entertain a reasonable suspicion that the Committee would be biased against them. In order to allay their fears, it is therefore necessary that this Committee issue a declaratory order as to the status of the findings of the TRC, in particular whether the findings of the TRC are binding on this Committee. None of the applicants have deposed to an affidavit setting out what fear they have, or the basis of that fear. None of the applicants have deposed to an affidavit in which they indicate that they fear, or I should say they are likely to entertain a reasonable suspicion that this Committee is biased or would be biased against them unless this Committee issues the order sought by them. Mr Lowies, who argued the matter on behalf of the applicants, conceded that the issue of the findings is not before us and indeed none of the parties to these proceedings has asked us to have regard to those findings. Nevertheless, Mr Lowies has argued that the matter may or may not be raised. It seems to me that the threshold question is whether this Committee has the power to make the order sought by the applicants. This Committee is a creature of statute, it has no other powers other than those which are set out in the Act which constitutes this Committee. Mr Lowies could not point out to any provision of the Act, which either expressly or by necessary implication gives this Committee the power to make the order contended for by the applicants. He made a broad submission, which if I understood it correctly, was to the effect that under the Act this Committee has the power to regulate its procedure. That is the provision which he relied upon for the submission that we have the power to make the order sought by the applicants. However, he conceded that the nature of the order that he is seeking is not a matter of procedure. In a somewhat feint tone he suggested that it is something akin to a procedure. This submission is manifestly devoid of any substance when it only states that proposition in order to dismiss it as devoid of substance. There is nothing in the Act which manifestly gives this Committee the power to make the order sought by the applicants. For that reason alone, the application ought to be dismissed. In any event, having regard to the provisions of the Act, it is difficult to fathom how the applicants or any reasonable person for that matter, could entertain a reasonable suspicion that this Committee will act as a rubber-stamp for the findings of the Commission. There is no foundation for the fear that we are told the applicants have. Again somewhat in a feint tone, Mr Lowies conceded that it is highly unlikely that this Committee can find that it is bound by the findings of the Commission. I agree with Mr Mapoma when he submits that any such, if the applicants indeed entertain any such suspicion, such a suspicion has no foundation and it is therefore unreasonable. For these reasons the application is DISMISSED. CHAIRPERSON Ms Thomas, thank you, you may be excused. MS THOMAS Thank you, Chairperson. MR LOWIES As it pleases you, Chairman. CHAIRPERSON Mr Baloyi, may I remind you that you are still under oath. MACHIHLILE WILSON BALOYI (s.u.o.) CHAIRPERSON Yes, Mr Strydom? CROSS-EXAMINATION BY MR STRYDOM (Cont) Thank you, Chairperson. Mr Baloyi, I'm going to ask you about the positions of the various police vehicles you saw. If you listen to the question and answer me directly, we can go quickly through this. After the attack on your house you went outside and at that stage did you see vehicles? MR BALOYI The ones that I saw was the Koyoco that had left my place, it was parked under a tree in Amatola Street and then it left to join the other two vehicles near the Metal Box and there were now three of them. MR STRYDOM Yes. And at that stage did you already see the other two Koyokos down close to the footbridge? MR BALOYI After shooting there was this huge flare that made it possible for us to see the vehicles. MR STRYDOM So then you saw two vehicles. So if I say that you saw three vehicles then close to Metal Box and two down at the bridge, so we're talking about five vehicles in total, is that correct? MR BALOYI Four Koyokos and one small vehicle. MR STRYDOM Ja. And all this you could see from your position where you were standing on the road, is that right, close to your house? MR BALOYI Yes, it was quite conspicuous. MR STRYDOM And the vehicle that fired the flare that created the light was in the vicinity of Metal Box? MR BALOYI I am saying there were three vehicles. I am saying this for the twelve time now. There were three of these vehicles. They got off this Koyoco and fired in the air and there was this flare in the sky and I saw these two vehicles that were moving in Umzimvubu Street. MR STRYDOM So what you're saying is that this flare created light also in the area over the bridge, because you saw the vehicles in the area of the footbridge? MR BALOYI It was - there was light all over the place. CHAIRPERSON What Mr Strydom is asking you is whether the shot that was fired into the air, which flared up, is that the shot which provided you with the light to be able to see the two motor vehicles which were travelling along Umzimvubu? MR BALOYI Besides that there was light all the time, but the light became even more bright after this thing was fired in the air. CHAIRPERSON If it had not been for this light which came from this shot that was fired into the air, would you have been able to see those two motor vehicles which were travelling along Umzimvubu? MR BALOYI Yes. MR STRYDOM Now can you describe the colour of the two vehicles that travelled in Umzimvubu? MR BALOYI You see yesterday I said that these Koyokos, the ones that you are talking about, are such that you cannot tell their type. They have different colours very day, depending on what was preferred on that day. MR STRYDOM Now you already testified that you saw a group of people in the vicinity of the Koyokos close to, in Umzimvubu Street. Now I want to know, did you see a crowd of people apart from the passengers of those vehicles, in the vicinity of the other three vehicles that were now standing in front of Metal Box? MR BALOYI These people were walking on the open space. There were many of them. They were moving in the light that was provided by the Koyokos, so that they could see ditches and they could avoid them as they were moving along. The vehicles that were parked near Metal Box were just stationary there and after the group had walked past, the first two started moving on and the three followed from behind and they took the direction towards the hostel. MR STRYDOM So are you saying there were actually two groups, the one group of people that walked in the vicinity of Metal Box with, in front of those vehicles and the other group that were down in Umzimvubu Street and eventually crossed the footbridge? MR BALOYI I said there is no - I am saying only a few people took the direction towards the robots, the majority of the group took the direction towards the footpath. MR STRYDOM Let me ask you this way, the group that was walking in front of the vehicles that were stationary at Metal Box and which followed them later on, which why did they follow towards the hostel? MR BALOYI It was only a few people who went along that road. They were headed towards the factories and the Koyokos had always been stationary there. After the had all passed, the Koyokos proceeded towards the robots. CHAIRPERSON Mr Baloyi, do you know a police motor vehicle which is commonly referred to as a suitcase? MR BALOYI Those are ...(indistinct) vehicles. CHAIRPERSON Do you know them? MR BALOYI Yes, I do. MR STRYDOM Do you know about the military vehicle, a smallish motor vehicle ...(intervention) MR BALOYI I cannot specify all types of military vehicles, I'm not a soldier. MR STRYDOM That night did you see a vehicle, a small vehicle that's covered in glass so the people sitting inside can look outside? They call the vehicle a microwave. MR BALOYI I did not see that vehicle. CHAIRPERSON Did you say they call this car a microwave? MR STRYDOM Yes, that's correct, because it gets so hot inside. Am I right in saying that the majority of the attackers you saw moving out of the township moved towards the footbridge, only a few people or attackers followed the vehicles that were travelling from Metal Box towards the robots? MR BALOYI They did not follow them. I said they did not follow them, they preceded the vehicles and the vehicles followed. MR STRYDOM But only a few people took that route. MR BALOYI Yes, a few. Maybe they had missed their way or something. CHAIRPERSON Were these people walking along Umzimvubu Road? MR BALOYI They went along Bafokeng Street, most of them, but then they used different streets whilst they were in the township. So it is possible that these were the people who had been lost. We were watching them all the time. MR STRYDOM When did you get - or did you in fact get onto the garage of your house to get a better look or view? MR BALOYI That is correct. MR STRYDOM When was that? MR BALOYI When the Koyokos had left I went onto the rooftop of the garage to check if there were no other vehicles that had been around. MR STRYDOM Did you see any other vehicles? MR BALOYI I saw military vehicles travelling along Frikkie Meyer. They were stationary at Frikkie Meyer. MR STRYDOM What kind of military vehicles, is that the Hippos or what? MR BALOYI You've just spoken about them, suitcases. MR LAX Mr Strydom, could I just ask something here, just for a moment if you will? You said you got onto your garage when the Koyokos had left. Left where, at what stage are you talking about? MR BALOYI They were headed towards the hostel. MR LAX Yes, but where had they left from at that point? That's what I'm trying to understand. MR BALOYI They have been leaving, or they left from Metal Box and the other two had left from Umzimvubu. MR LAX You see you've lost me now. You told us that there were two at a tree near Metal Box, one joined them. You then said the two at the footbridge then proceeded towards Metal Box, towards the robots and then there five. Now what I'm trying to understand is, at which stage did you get onto the roof, was it - I'm just not sure and I'm not sure which vehicles left where at what point. Do you understand my problem? MR BALOYI I said the two vehicles that had been travelling along Umzimvubu headed towards the robots and then the three that had been at Metal Box also left and then regrouped and proceeded towards the hostel. That is when I went to the rooftop. MR LAX Thank you, that's very much clearer for me, thank you. MR STRYDOM Why did you say in your evidence-in-chief, and I've got a note here "As I was standing on top of the garage, I saw a Koyoco parked under the tree in Amatola Street. It drove off that street and went to the street near Metal Box factory and joined two other parked vehicles." So what you said in chief is that you got onto the garage at a much earlier stage, when that one vehicle was still there at the tree at Amatola Street. MR BALOYI You are just questioning me on one thing, but that is not how it happened. I told you clearly before, from yesterday, you are still questioning me on one issue. It doesn't help that I should repeat ...(intervention) CHAIRPERSON And what would also be helpful is for you to answer the question. If the answer is yes, you will say yes, if the answer is no, you say no. It will not help us to get into an argument with counsel. He is doing his job when he asks you the questions. MR BALOYI No, I am not trying to get into an argument with him, but I do not know how to respond to his question now. What I am going to say is, the Koyoco that left the streets near my house proceeded to Amatola and thereafter the other two vehicles that were parked at Metal Box. Then were another two vehicles that had been travelling along Umzimvubu. They assembled and proceeded towards the hostel. Thereafter I came back just to make sure that everything was okay. I then climbed onto the rooftop of the garage. I was on my stomach in fact and I was watching out for what was happening. It was at that point that I saw these two vehicles parked at Frikkie Meyer. MR STRYDOM I understand your evidence now, but what I'm saying is that yesterday you testified that at the time the light or the flare was fired into the air, you were on the garage. Now it seems to me that you were not on the garage but standing somewhere in the street when you saw all this. MR BALOYI I did not mention the garage yesterday. You did not question me on the garage yesterday. MR STRYDOM Sorry, I didn't question you, but sorry in your evidence-in-chief ...(intervention) MR LAX I just wanted to confirm for your sake, Mr Baloyi, that this matter was raised in your evidence-in-chief with you, by Mr Berger, and you did in fact say that you were on top of the garage, you saw a Koyoco parked under a tree in Amatola Street, and then you went on to describe how it moved and then the flare and a whole lot of other things, giving the impression that you were on the roof when you saw all these things. So he's not tricking. In fact you did give that testimony yesterday. MR BALOYI I cannot comment on it because we discussed many things yesterday. MR STRYDOM Apart from that one occasion when you saw this light being created in the air, did you see that again a bit later during the course of that same night? MR BALOYI What I also saw were two buses coming from the direction of KwaMadala Hostel and they were travelling along Frikkie Meyer. MR STRYDOM Mr Baloyi, I'm not asking about - I just want to know, did you see another flare being fired during the course of that night? MR BALOYI No. MR STRYDOM Because I want to put to you that evidence was led at the criminal trial that after the attack a flare was fired on the KwaMadala side of Frikkie Meyer, to look for possible people that were hiding in the swamp there. So you cannot give any comment? MR BALOYI No, I did not see that. MR STRYDOM I want to refer you to Exhibit CC, that's the statement ...(intervention) MR LAX Sorry, Mr Strydom, before you do, I'm just trying to assimilate what you've just put to him, but I'm not sure that I understand you correctly, so just for my own benefit. Are you saying that another flare was fired at a different time? In other words that two flares were fired, or are you saying only one flare was fired? I'm not sure what you're putting to him exactly. MR STRYDOM Sorry, I shouldn't have used the words "other flare". According to the evidence at the criminal trial, a flare was fired after the attack on the KwaMadala side of Frikkie Meyer Boulevard, close to the swamp. I want to return to your statement, Exhibit CC, and just to put you into perspective I'm going to read from the fourth last paragraph: "When they left the house, they left a suitcase in the living-room that did not belong to me, containing glasses and ladies shoes." Do you agree with that? CHAIRPERSON What paragraph is it? MR STRYDOM The fourth last paragraph from the bottom. CHAIRPERSON Oh, okay. MR STRYDOM Do you agree with that? MR BALOYI Did this happen in my house? MR STRYDOM You found a suitcase and there were ladies shoes in that. That is correct, you already testified that. Do you agree with that? MR BALOYI Yes, that is so. The suitcase burst open. That suitcase belonged Mxena, whose wife was killed in the street. MR STRYDOM And then you told the person who took the statement "I then went outside and climbed onto my roof. I was watching the group of people leaving the location" - locations. So according to this statement, and that's what I want to put to you, it seems to me that after you left your house you went onto the roof. MR BALOYI We did not stand watching for a long time, we just looked and returned back. We did not spend two or three minutes there, we would just watch for a moment and return maybe to the house and look at the other things. There was no time just to stand around. MR STRYDOM But then you went along to state "I also saw two police vehicles, one Nyala and one casspir, escorting the group of people. The police in the Nyala shot a white flare into the air." Do you agree with what is stated here or not? - that I just read to you. MR BALOYI This refers to what I've just told you about what happened at Metal Box, or is this a different issue altogether? CHAIRPERSON I think what he is trying to point out is to reconcile what you have told us and what appears in your statement. In the statement you are recorded as having said the following: - and listen carefully. "I saw two police vehicles, one Nyala and one Casspir escorting the group of people." Is that statement correct? MR BALOYI No, that is not how I put it, no. Escorting people, I did not know anything about that. CHAIRPERSON And then the statement goes on to say "The police in the Nyala shot a white flare into the air." MR BALOYI That is so. They were not in the Nyala, it was the police who alighted from the Koyoco. There were three vehicles there. MR STRYDOM So this statement should have read "Three vehicles escorted a group of people" ... not two? Isn't it so? Because you told us there were three vehicles driving behind people, with reference to the group of people that fired the flare. So the reference here to two vehicles cannot be correct, do you agree? MR BALOYI It is a mistake. I just mention what I said. MR STRYDOM And then the statement goes further, and I'm going to read to you "In the open field there were two cream-white trucks that were also leaving the location and were following the group of people to KwaMadala Hostel." Is that statement a correct statement? MR BALOYI Cream? How could I see the paint? Where does it come from that they were cream? I do not know about it. There were Koyokos there but they were not that colour. MR STRYDOM You see I want to ask you where it comes from because, do you suggest that the person that took the statement just wrote there: "two cream-white trucks"? MR BALOYI White? MR STRYDOM Cream-white. MR BALOYI No, I do not know where he got that from. Where does that person come from, where did he get that? I was pointing out the people that I was with when they wrote the statement, I pointed out what happened and how it happened. I only mentioned what I knew, what I saw from my house. CHAIRPERSON You didn't at any stage tell the person who was taking your statement what the colour of the Koyoco was, did you? MR BALOYI No, with regards to white, it's the first time I hear of it. CHAIRPERSON Now he's not saying that it's white, he's saying it was cream-white. But you didn't tell the police ...(intervention) MR BALOYI I never mentioned anything about cream-white, I just mentioned that they were Koyokos. The colour of the paint was of no concern to me. MR STRYDOM And you also didn't say "trucks" because what's written down here is trucks, not Koyoco or Casspir or Nyala, as has been previously recorded in your statement. MR BALOYI I do not know about that, I hear it for the first time, it's news to me. MR STRYDOM You stated that you saw a taxi or some kind of vehicle coming from KwaMadala back towards the robots, is that correct? MR BALOYI Vehicles? MR STRYDOM Buses or - you said buses came from KwaMadala towards ...(intervention) MR BALOYI Yes, that's what I said. MR STRYDOM What kind of buses were these? MR BALOYI It was the Vaal bus, Vaal buses. MR STRYDOM But at what stage was this? Was that after the police vehicles moved towards KwaMadala, or when was this? MR BALOYI Yes, they had left a long while ago. That is when I saw these buses coming from the direction of the hostel. CHAIRPERSON Were these buses coming from the hostel? MR BALOYI They were coming from the hostel. I am not certain where they'd been parked there, but ...(intervention) CHAIRPERSON Okay. Did you see them coming out of the hostel? That's what I want to find out. MR BALOYI Yes, you can see the street clearly. MR STRYDOM Were you still standing on your roof? MR BALOYI No. I did not spend a long time on the rooftop. MR STRYDOM So were you standing close to your house somewhere? MR BALOYI I was standing by my lawn. Even if I stand at the back of the house I can still see the road clearly. MR STRYDOM Yes, but you can never see the entrance to KwaMadala Hostel from your house, isn't it so? MR BALOYI I am not talking about the gate. They were coming from the direction of the hostel, they were on the street. MR STRYDOM So you can't say that these buses came from KwaMadala, they might as well have come from Iscor, because if you follow that route you get to the main entrance of Iscor. MR BALOYI Yes, that is possible, but they were coming from that direction. MR STRYDOM But in your statement, maybe in this regard, you said "Two white Vaal Triangle taxis were also leaving out of KwaMadala Hostel with people in." Did you say that to the person who took the statement? MR BALOYI That is not my statement, I did not say that, never. That's not what I said. MR STRYDOM What's the relevance of these buses, do you try to insinuate that they took people that were part of the attack to some place, why do you mention the buses? MR BALOYI I saw these buses. I'm mentioning them because I saw them. MR STRYDOM One last aspect. At the criminal trial many people from Boipatong testified, people living in the same street as you testified, also people from Bafokeng Street. Now I want to put to you, they didn't see police or white people participating in the attack and what you are saying you say on your own. Can you give an explanation why the other people didn't see but you saw it? CHAIRPERSON I'm sorry, I must have missed something, saw what? MR STRYDOM The other people didn't see police participation. CHAIRPERSON Oh, I see. MR STRYDOM So I want to put it to him that you stand very alone in your testimony, is there anything you want to comment on about that? ADV SIGODI Sorry, Mr Strydom, can I get it clear, are you saying that the people said they didn't see or they don't mention police participation? MR STRYDOM It's a bit of a difficult statement because so many people testified, some people looked outside and they didn't see, some people never looked outside, they can't say if there was any participation. I don't want to bind myself by individuals because they are literally, I think a hundred of them. ADV SIGODI I think in fairness to the witness, I mean it insinuates that what you're saying is that there were no police - the other people are saying that there were no police and I think you should put it clearly that they are saying that some said that they didn't see and some do not mention that there were police. MR STRYDOM Yes, thank you. I want to put to you that the witnesses that testified at the criminal trial, that looked outside and made certain observations, those people didn't see the police or the police vehicles in the township, during the attack. So what I put to you is you stand alone in your testimony. CHAIRPERSON ...(indistinct) MR STRYDOM ...(indistinct) so far. Well I'm referring to the criminal trial. CHAIRPERSON So far, yes. MR BALOYI The people who were unwilling to testify to the effect that there were police are just similar to those who don't mention them at all, but the situation then was very bad, people were unwilling to testify because the police will pick you up and take you wherever and assault you. That was the order of the old government. It was only after the new government dispensation that things improved. MR STRYDOM Do you say that there are still witnesses that are too scared to come forward to say what they have seen, but they've told you that they've seen police accompanying the attackers? MR BALOYI Because they did not make statements even then they are still intimidated to do so, even now. MR STRYDOM Do you know who they are scared for, or what they are scared of? MR BALOYI The situation remains the same, the police are still in force, they have not been removed. They are still the same police. MR STRYDOM Thank you, Chairperson. NO FURTHER QUESTIONS BY MR STRYDOM CHAIRPERSON Mr Baloyi, in your statement, the one that Mr Strydom has been going through with you, which you were supposed to have made to the police, the following is said "I saw some of the white people shooting at the houses opposite mine. I can't say that it was policemen." Do you know anything about this statement? MR BALOYI No, I do not remember. I don't recall whether I did mention that. CHAIRPERSON You don't remember whether you said this? MR BALOYI ...(no English interpretation) CHAIRPERSON What is it that you don't remember? MR BALOYI What I remembered is that they shot at Singwane's house. CHAIRPERSON What is said here is the following "I saw some of the white people shooting at the houses opposite mine. I can't say that it was policemen." Now do you know anything ...(intervention) MR BALOYI No, I do not recall, I don't recall that. CHAIRPERSON Yes, thank you. Mr Lowies? MR LOWIES Thank you, Chairman, can I proceed? CHAIRPERSON Yes, bearing in mind that some of your time has been consumed by the application. CROSS-EXAMINATION BY MR LOWIES I'll bear that in mind, Chairperson. Mr Baloyi, I have to put to you that your house was probably attacked, but my instructions are that the manner in which you describe and the people involved in this attack, were not involved and regarding that your evidence is suspect and that my clients do not believe you. The first aspect that I would like to find out from you is ...(intervention) MR BERGER Chairperson, with all due respect, to put that kind of a statement to the witness, how is he supposed to respond to it? There's no indication in what regard he's not being believed. CHAIRPERSON He is about to do that. Aren't you? MR LOWIES That's correct. MR BERGER I beg your pardon. MR LOWIES The first aspect is, is it correct that at the time of the attack you were 72 years of age? You're now 79. MR BALOYI I am saying the people who were taking this statement wrote as they pleased. I told them that I was born in 1920, on the 7th of February and if they chose to write something else, really that's not my problem. MR LAX Mr Baloyi, please, just listen to the question and answer the question. If you were born in 1920, then you would be 79 now and you would have been 72 at the time of the attack. It's plain arithmetic. MR BALOYI I don't know, I did not study mathematics. MR LOWIES On your own version further there were adults in the house, residing there at the time of the attack, not so? MR BALOYI I don't know these people. Maybe they were staying there without me knowing. MR LOWIES I don't want to argue with you, Sir, just please listen to the question. Is it not so that there was a chap that was 37 years of age residing with you? Please. MR BALOYI I don't know now. I don't know what you are saying now. Are you saying other people, one of them is 37 years? I don't know these people. CHAIRPERSON Mr Baloyi, I think what he's referring to, he's referring to members of your family. He says that at the time of the attack there were members of your family who were adults. He says one of your members of your family was approximately 37 years at the time. MR BALOYI My children? CHAIRPERSON Yes, I think ...(intervention) MR BALOYI Yes, he should say that. Maybe he's not in the position to say that. Look I cannot just answer when he's talking about people, I have children you know. CHAIRPERSON Whereby people ...(intervention) MR BALOYI Yes, I do have a child of the house. CHAIRPERSON Yes, by people in your house he's referring to your family, the children. MR BALOYI Yes, they are my children. MR LOWIES Now who is Mando? MR BALOYI Mando. Mando is my daughter. MR LOWIES Were there any grown-up men in the house, residing there at the time of the attack? MR BALOYI Yes, that is correct. MR LOWIES Who were they? MR BALOYI I said Pitso is a police, he is one of the police that are using these Koyokos, another one is Silo. These are males, and his nickname is Dodudu. CHAIRPERSON Dodulo? MR BALOYI Dodudu. MR LOWIES What is the age of Pitso? MR BALOYI I would not say, I would have to ask my wife. I cannot state. CHAIRPERSON Were these ages not given to us yesterday? MR LOWIES I haven't got that age. CHAIRPERSON Were we not given those ages? MR LOWIES Sorry, Chair, he didn't mention ages as far as my note reads, of these two. He did mention ages of other people. CHAIRPERSON Of Howard, Ugabe, Cleopatra and Mando. Yes, very well. MR BALOYI Pitso is an adult. He has his own family now. He stays in Zone 10. CHAIRPERSON Ja, I think he says he's going to ask his wife to get the correct ages. MR LOWIES But he was a grown-up person? MR BALOYI Yes. MR LOWIES So was Silo. You can't tell us his age can you? MR BALOYI Silo is still young and he's a grown-up now. CHAIRPERSON Who is older between Silo and Mando? MR BALOYI Mando. CHAIRPERSON Alright. MR LAX Can I just ask this, is Silo older than Howard? MR BALOYI Very much so, far much older. Howard is still young, he's about 17. MR LAX That's all I was trying to ascertain. MR LOWIES Were they there the night of the attack? MR BALOYI The one who is a police was at work. Silo was in the house. MR LOWIES When you were watching TV, did you do so in the dark or was the light on? MR BALOYI Yes, the lights were off. MR LOWIES Was everybody watching television or just yourself? MR BALOYI Not everyone. People were watching television with me but everyone, each one of us left for our bedrooms as we pleased. MR LOWIES To go and sleep? MR BALOYI Yes. MR LOWIES Who went to sleep, who left for their bedrooms? MR BALOYI I would not say. You see my house is big, sometimes they would just stay there in their bedrooms and sometimes they would sleep. I do not follow them around you know. MR LOWIES The reason why I'm asking you is because in your evidence-in-chief you said you instructed everybody to stay up because you thought the attack was imminent. MR BALOYI I was the one who was watching all the time. I am the man you see, in the family. MR LOWIES Now but Sir, you must listen to the question. The question is, on your version now it seems that some of them went to the bedroom to go and sleep, yet in-chief you said the situation was as follows; you expected an attack and you told everybody to stay up. What is the truth? MR BALOYI It is true, I had told them so, not to go to sleep. But I would not say whether they were asleep when they went to their bedrooms or not. CHAIRPERSON You see I was left with the impression - it may be wrong, but I was left with the impression that what was conveyed to other family members is that you've got to be on the alert because there is an attack which is imminent. And I think as I recall his evidence he was left watching TV with Silo, if I'm not mistaken. MR LOWIES That is correct. CHAIRPERSON Yes, yes. MR LOWIES Chair, I hear what you say. I also had it that there were actually two incidents, but I'll canvass it. CHAIRPERSON Yes, very well, but do canvass that. MR LOWIES Thank you. CHAIRPERSON If it is relevant. MR LOWIES Thank you, Chair. Now you see, Mr Baloyi, when Father Patrick phoned you he was not sure whether an attack was going to be launched at Boipatong, not so? MR BALOYI I am saying that when somebody tells you something I would not say whether ...(intervention) CHAIRPERSON Just listen to the question, we'll move faster. If you'll just answer the question. What he is saying is that when the Father conveyed the message to you he was not sure whether the attack was going to be on Boipatong. MR BALOYI That is correct, because he spoke about two places. CHAIRPERSON Yes, Mr Lowies? MR LOWIES Did you do anything as a result of this phone call? MR BALOYI I then informed my family that we might be attacked and I kept watch over my son and told them that they must lock the doors and keep them locked. MR LOWIES Now did you also phone the police? MR BALOYI Yes, I did and I spoke to one police person at the police station. MR LOWIES What did you tell him? MR BALOYI I told the police that rumour has it that we are going to be attacked and he said there's nothing he could do, I should phone Sebokeng. I said I cannot waste my money and phone Sebokeng. "If you don't want to phone Sebokeng, that's not my problem". MR LOWIES Now which police station did you phone? MR BALOYI Vanderbijlpark. MR LOWIES Did you also get in contact with the comrades? MR BALOYI Very much so. We were working together. MR LOWIES That night? MR BALOYI I don't roam the streets, not even people like Madala - I mean the older ones. The older ones do not roam the streets. MR LAX Sorry, I just can't get this clearly in my headset. I'm not sure what - what exactly is your answer? Maybe you can just repeat it again. MR BALOYI I am saying I did not spend my time with them in the streets. They were younger. They are the ones who had the responsibility of guarding the streets and we older ones remained behind at home. MR LOWIES But my question is, did you seek protection from them on that night? MR LAX Sorry, your question was; did he contact them. That was your question. MR LOWIES Thank you. Now did you contact them? MR BALOYI We were in constant communication. Each street had this constant communication with them. MR LOWIES Did you tell them that night that there's a possibility of an attack, after the phone call by Father Patrick? MR BALOYI Yes, I told some of them. MR LOWIES And were they around the house after you spoke to them, or not? MR BALOYI We were always waiting outside. MR LOWIES Did you see them there that night after you spoke to them? MR BALOYI They were chased away by the police who were shooting at them and firing teargas canisters at them, and they fled into people's houses. I never saw them again, because we were also afraid of being teargassed. MR LOWIES Now on your version the police came there with a tractor to fix the holes in the road on the day of the attack, but it was during the day. MR BERGER Chairperson, we've canvassed this and as I understand the ruling, it's not to be canvassed again. MR LOWIES I just want to bring him in the picture, Sir, I don't want to question him on things that have already been canvassed, but otherwise I won't be able to put an introductory to him. CHAIRPERSON You're laying a foundation? Ja, go ahead. MR LOWIES Do you recall? MR BALOYI Yesterday I said the tractor was moving in front, closing up the trenches that we had dug up and the Koyoco was following behind, occupied by police. MR LOWIES Who did the tractor belong to, was it a police tractor or did it belong the municipality or town council or the township or some other authority? MR BALOYI If I knew the police I would ask them to whom this tractor belonged. MR LOWIES You don't know? MR BALOYI I don't know these police you see. MR LOWIES You can't say that it was a police tractor? MR BALOYI I think maybe yes, it belonged to the police or soldiers, I don't know. MR LOWIES Isn't it possible that the police were just protecting the people on the tractor from an attack? MR BALOYI We did not want the police in the township. We did not want them altogether. That is why we dug up these trenches. CHAIRPERSON I think what he is putting to you is, is it not possible that the police were protecting the people on the tractor who were either removing the barricades or fixing the holes in the road? Do you know that or don't you know that? MR BALOYI Exactly, yes. MR LOWIES Yes, what? MR BALOYI I am saying they were protecting the people who were closing up the trenches using the tractor. MR LOWIES When the people wanting to close the trenches with the tractor, were they attacked or was there a threat that they may be attacked? MR BALOYI Very much so. He could not have travelled, moved about freely on his own. MR LOWIES Now that day, was there a physical threat that he would be attacked, not a general threat? Did somebody do something to say here's going to be an attack? - that you could see. MR BALOYI Would you please repeat? I do not understand. MR LOWIES Did you see - that day of the tractor, when it was busy closing the trenches, did you see whether somebody attempted or indeed did attack the tractor or the police with them? MR BALOYI No. All white people were scared of going into Boipatong. MR LOWIES Now what made them fire teargas at the comrades? MR BALOYI I cannot say, because they came across the comrades who were sitting around burning tyres and they fired without asking. ADV SIGODI Do you know when these trenches were dug up in Boipatong? MR BALOYI We dug the trenches. We did not want movements of any police vehicles. ADV SIGODI When did you dig them up, had they been there for a long time or were these trenches dug on that day, the 17th, or were they dug before the 17th? MR BALOYI We dug up the trenches before the 17th. We did not dig the trenches on the 17th. ADV SIGODI Approximately how many days before the attack were they dug? MR BALOYI Each and every street has comrades and each and every street made their decisions as what to do because you see the township is big. People dug up holes or trenches in their streets and we did the same in our street. ADV SIGODI So these trenches had been there for some time before the attack on the 17th? MR BALOYI Yes. ADV SIGODI And they were only filled up by the tractor on the 17th? MR BALOYI They closed it up on the 17th. It was round about 4 o'clock. ADV SIGODI Thanks. MR LOWIES Did they ever before that try to close the trenches? MR BALOYI I don't know, I did not see them do that. MR LOWIES But if there are trenches it would not prevent pedestrians from entering into the township, only vehicles, not so? MR BALOYI That is correct. MR LOWIES Now on the night of the attack you also say that - that's in-chief, you said that as you were watching television, it was approximately twenty past ten, you heard a noise in the street. MR BALOYI That is correct, as I stated yesterday. MR LOWIES There's some problem with regard to precisely what the noise was. What did you think what was going on outside, what was this noise about? MR BALOYI Yesterday I said I thought the noise was coming from the comrades. MR LOWIES Now what was the nature of this noise? Because you also said that at a stage you heard that windows were breaking. MR BALOYI Yes, they were breaking windows. MR LOWIES Now the noise that you heard, the first noise, what was that, what was the nature of that noise? MR BALOYI You see I heard this noise, the screaming of people and you had things like the shattering of windows etc. MR LOWIES But now why would you think that the comrades would do something like this, why did you think that they would make a noise like that? MR BALOYI When I heard the noise I thought maybe the comrades were singing. That is why I had to go outside and look. MR LOWIES But I asked you what the nature of the noise was and you said "screaming and breaking of items" Now the question is, if that is the situation - please wait - if that is the situation, why did you think it was the comrades? CHAIRPERSON Isn't his evidence that his initial reaction was to think that this noise was coming from the comrades? MR LOWIES I heard what you say, Chairman, but with respect, if the nature of the noise is of such a nature, I would submit that it's not true, and that's what I'm trying to explore. I don't think he heard anything, but that's what I'd like to explore. MR BERGER Chairperson, this can't possibly be laying a foundation because what this witness heard or didn't hear has been canvassed in detail for the last two days. CHAIRPERSON What he is putting to you, Sir, is that you didn't hear any noise. Is that what you're putting to him? MR BALOYI I heard noise coming from a further up direction. I didn't know what noise was this. I then went out to investigate. MR LOWIES Out where? Out of what? ...(intervention) CHAIRPERSON You're putting to this witness that he didn't hear the noise. He says he did hear the noise. We dealt with this yesterday. MR LOWIES No, he said he went out. I want to know where to. Where to? MR BALOYI I went to the gate and I stood there and looked. MR LOWIES Because you never testified yesterday that you went to the gate and looked at the gate at this stage. MR BALOYI You see they did not ask me, you are the one who is asking me where I went to. MR LOWIES Because we had, Sir, on your own version, that you only went to the window at that stage and now you say you went outside. MR BALOYI This noise was coming from afar and it continued and I would look through the window as the noise was continuing. I was not sitting down you see. MR LOWIES Now did you or did you not go outside when you heard the noise for the first time? - to the gate. MR BALOYI I've just told you now that I went outside, went to the gate and looked around. MR LOWIES And when you were at the gate, did you see anything? - at that stage. MR BALOYI I did not see anything and I went back into the house. MR LOWIES Did you proceed to watch TV or did you now do anything else? MR BALOYI The television set was on and I was watching at the same time. MR LOWIES Yes? What made you get up again? MR BALOYI The noise was approaching, getting closer. MR LOWIES And then? MR BALOYI And I looked through the window. They had not come within my view at that time. MR LOWIES Did you see anything at that stage? MR BALOYI I did not see anything at that time, it was just noise. MR LOWIES And did you remain standing or did you go back to sit and watch TV again? MR BALOYI I am saying, when I heard this noise I thought that this could be the people coming to attack us or the comrades, so I was not sitting down really. MR LOWIES That's not the question. We heard that you went to the gate, you went to sit and watch TV, then ...(intervention) MR BALOYI That was at the beginning. That's what I said. MR LOWIES Then you heard a noise and you went to the window again. Now at that stage, did you go back to sit again or did you stand there in front of the window all the time? MR BALOYI I am saying to you I never sat down again, I continued watching through the window and watching television at the same time, trying to make out as to what this was. MR LOWIES What was the very first thing that you saw to make you realise that now there is trouble? See, that you saw. The operative word is that you saw, not heard at that stage. MR BALOYI I had received a message. MR LOWIES No but Sir, I specifically said to you "that you saw". CHAIRPERSON He'd been warned before that there is going to be an attack, then he hears the noise and then he saw the Koyoco. He warned his family. MR LOWIES He didn't say that now, Chair. CHAIRPERSON But he said that yesterday. That has been said many times. MR LOWIES I'll leave it at that. Now when you saw the Koyoco, what did it do, did it just go there, park there and nothing happened regarding that Koyoco? MR BALOYI This Koyoco came to a standstill there and the noise of the engine was running almost quietly and the lights were dim. MR LOWIES No, my question is, did anything specifically happen or did it just go there and park there and nothing else happened regarding that Koyoco? CHAIRPERSON We were told yesterday it came in there and parked and then moved on. That is what we were told. MR LOWIES Chair, I hear that. I just want to clarify because this was never canvassed, whether anything happened regarding that Koyoco, except for the fact that it went there and parked and moved. CHAIRPERSON Okay. MR BALOYI Nothing happened after the Koyoco had arrived, it just came and parked there. MR LOWIES Nobody alighted, nobody got into it, nobody loaded anything into that Koyoco? MR BALOYI Nobody alighted because had somebody alighted I would have said so. MR LOWIES And the Koyoco, whilst it was there, could you see people inside the vehicle? MR BERGER Chairperson, with respect, ... CHAIRPERSON Inside what? MR LOWIES The vehicle. CHAIRPERSON What vehicle? MR LOWIES The Koyoco. CHAIRPERSON But he told us yesterday that he could see the people that were, two white people that were in front. He told us that yesterday. MR LOWIES I specifically made a note of that. I wasn't sure whether he said in front, inside or standing in front of the vehicle. CHAIRPERSON Just put that to him. MR LOWIES Were the people inside the vehicle or were they in front of the vehicle? - outside. MR BALOYI Yesterday I said - I think you were here, but if you were not here yesterday I'm going to tell you now. You did not hear this. I am saying it came to a standstill, no single white person got out of this Koyoco. The people who were inside this vehicle were visible, but not as clear as one would have expected. MR LOWIES Why do you say they were white people? MR BALOYI I know a white person, what are you? I can see you are a white person, finished. Look I can see. You mean I don't know a white person now? MR LOWIES But it was dark wasn't it? MR BALOYI I know a white person, even if it's at night I'll know a white person. MR BERGER Chairperson, I'm sorry to interrupt, I know that it doesn't help, but I wouldn't be doing my duty to my client if I didn't object at this point. I have advised my client, as has Ms Cambanis and my learned friend, Mr Malindi, that your ruling means that they will not be subjected to cross-examination of this sort. Perhaps we don't understand your ruling but we've always thought that not being able to revisit issues means that these kinds of questions can't be asked. CHAIRPERSON I will allow the question. Counsel is free to canvass the issue. If I believe that the question is a repetition I will do so, I will stop him. MR LOWIES The question was; it was dark, not so? MR BALOYI There was light, a bright light and there was the moon as well. MR LOWIES I would like to put the following to you, and that is; it was so dark, Sir, you would not have been able to see inside that Koyoco. MR BALOYI You see the Koyoco had no curtains so I could see the people inside. I could see them through the windows and the ones who were in front were even more visible. MR LOWIES They did not wear balaclavas, did they? MR BALOYI No, they did not have these balaclavas on. MR LOWIES Now what provided the illumination at that stage? Where did the light come from? And you must please mention all the light sources. MR BALOYI Moonlight, the floodlights. MR LOWIES Yes? MR BALOYI Nothing else, except for these things. MR LOWIES You see I've handed out to everybody a document which is an assessment of certain evidence before the Goldstone Commission of Inquiry into the Boipatong Massacre on 17 June 1992. I would request that this be admitted as Exhibit EE, Chairman. Now in this document, Sir, an independent firm, Inloptro(?) described the elimination conditions, and I want to put it to you that it was not brightly lit outside, the illumination was actually very bad. This is the crux of their finding. MR BALOYI The person who is saying that is saying what he knows and I am saying what I know. It was very bright that evening. MR LOWIES Because I'd like to just mention the following to you - Chair, for the assistance of everybody - at page 6 thereof if I'm not mistaken, paragraph 4.1, you'll find the following description "At the time of the incident, at about 22H00 on 17 June 1992, ..." CHAIRPERSON Where is this? MR LOWIES Chair, two document were handed to you, the one on top is document I think: "Recollection and Impressions of Inspection at Boipatong". Now I think four or five pages further there's a report which is titled: "An Assessment on Certain Evidence Given". Then on top of this document it says page 6 of 10. MR LAX Mr Lowies, the page numbers of this document are at the bottom right-hand corner. MR LOWIES That's 17, thank you, Mr Lax. I would submit that that is the correct page. MR LAX Sorry, we don't have the fax thing on the top on our copy, unfortunately. MR LOWIES Page 17 is actually a much better reference. Now it is stated there, Sir, that at the time of the incident on that day: "It was two days after full moon and the moon was approximately 30 degrees above the horizon. The illumination at the time ..." ...(intervention) CHAIRPERSON Mr Lowies, he has told us that there was moonlight on the day in question. Now reading to him what the report says - and he insists that there was moonlight, can you really take the matter any further? MR LOWIES I would like to suggest the following to you, Sir - I hear what you say, Chair - on page 18, under paragraph 4.1.2 he comes to the conclusion, the compiler of this report "That the moon therefore did not contribute very significantly to the overall illumination within the township." This is the gist of what he says in a lot of pages. So I want to put it to you that the impression that you want to create that the moon supplied a lot of illumination is not correct, it could be negated for the purposes of identification. MR BERGER Chairperson, that's not what the report says, it says "The moon did not contribute very significantly. There were Apollo lights ..." And on top of it, if one looks at the report very briefly, it seems that there was random sampling done. CHAIRPERSON Well if I understand what's being put to him only with regard to the moon, it doesn't deal with the Apollo light because this witness, as I recall his evidence, he relied on the moonlight and the Apollo lights. There's nothing the witness can say ...(indistinct) concerning the contents of this document. MR BERGER Unless there was a specific test done in front of his house, perhaps that might help. CHAIRPERSON Yes, continue, Mr Lowies. MR LOWIES Do you still say that the moon provided sufficient illumination ...(intervention) CHAIRPERSON He has said yes, he did. MR LOWIES I want to put to you, Sir, that you are not telling the truth, as a matter of fact it was quite dark there and you are creating the impression that you were able to see things which you could not. MR BALOYI That is not true, the people who wrote here wrote as they thought appropriate because they don't want a black person and that's it. MR LOWIES You can't say that. I want to put to you the following as well. The light of the Apollo light is quite far away from you, isn't it so? And as you were standing - sorry, you want to answer? MR BALOYI I am saying I can bet today I can take you in the evening, take you to my home, nobody will kill you, you will see the lights. MR LOWIES Yes, it's not disputed that there's an Apollo light, but listen to the question. Is it not correct that ...(intervention) MR BALOYI I am saying the light goes through my window. MR LOWIES Is it not correct that as you're standing in your house, the Apollo lights are approximately to your left? As a matter of fact you indicated to us the angle yesterday - just listen please, you indicated the angle more-or-less the same as you are sitting to Mr Strydom, in another regard where Mtwana Zulu was, not so? MR BALOYI I said that yesterday. The light flashes through towards this direction. It is very bright, very bright and at round about 10, when there is no coal smog or smoke, it's very bright. MR LOWIES We'll get to that, let's just get to the angle. Do you agree that as you are standing it's approximately to your left, as you were standing there at the door, the same angle as you are sitting towards Mr Strydom, which is about 30 degrees? MR BALOYI You see it's very, very tall, it comes from Botswana and flashes through towards this direction. MR LOWIES Would you agree it's approximately to your left-hand side, 30 degrees as you were standing at the window yes, or no? The 30 degrees is the angle that ...(intervention) CHAIRPERSON Mr Lowies, these degrees are not going to take us anywhere. If you want to put it to this witness that on the day in question there was insufficient light to enable him to identify or see anything, just put that to the witness. This witness knows nothing about the degrees, how many degrees the Apollo light was. MR LOWIES I hear what you say, Chairman, however I must state that it is quite important to know at what angle he was looking because of various factors. So can I just ask you this; as you were standing you were actually looking more-or-less in the direction of the light? MR BALOYI As I am looking at you now. MR LOWIES Right. Now Sir, if that is the situation, you were actually looking into the light of the Apollo. MR BALOYI The light comes from that direction but the light is cast all over. MR LOWIES And you know that if you are looking into the light you have a problem with specifying things in front of the light, like for instance the Koyoco, not so? MR BALOYI You cannot stare at the pole directly, that is impossible. MR LOWIES And the Koyoco was higher than the level at which you were standing, correct? What do you say? MR BALOYI Please repeat. CHAIRPERSON It was higher than the level at which he was. MR LOWIES The people inside the Koyoco, not so? MR BALOYI The Koyoco has windows on the sides. MR LOWIES And you had to look up towards those windows from where you were standing, not so? MR BALOYI It is not very high, no. I did not check just how tall it was, I do not know. MR LOWIES I put it to you that you had to look up and as a result you would have been blinded by the light from the Apollo, making it impossible for you to see people inside so that you can identify them as being black or white. MR BALOYI I know white people. I saw them. MR LOWIES Did you only see their faces to make sure that they're white or could you see anything else from there? MR BALOYI Just as I see your face. MR LOWIES Only the faces? MR BALOYI I did not see the body, I just saw the faces. MR LOWIES Could you make out whether they had beards or moustaches, or were they clean-shaven? Could you make out? MR BALOYI I had no time to check whether they were clean-shaven or they had beards, I just saw a white face. MR LOWIES Could you see whether they had long hair or short hair? CHAIRPERSON He didn't have time to look whether they were clean-shaven or whether they had beards, all he saw were the white faces. I mean, can you take the matter further than that? MR LOWIES Chair, I heard what you say. I have a bit of a problem in that unfortunately it's my instructions to test his powers of observation and that would be relevant. CHAIRPERSON But if he was not able to tell us whether he was clean-shaven or whether they had beards, do you expect him to tell us? MR LOWIES I get the point, I'll withdraw the question. Now Sir, when you looked at Mr Zulu, my client, who you say was there and which is denied, is it not so that he was actually standing in front of the Apollo light, far away but between you and the Apollo light? MR BALOYI I will repeat what I said yesterday. When they left Buwa's house he stood on the lawn and called out to Dodudu Morena and Lucky. MR LOWIES It doesn't answer the question. Was he between you and the Apollo light? - in the same line. MR BALOYI That Apollo light cast a light all over the area because it is high up. MR LAX Mr Baloyi, please just listen to the question. Was he - this is Mtwana, was he between where you were and where the Apollo light is? Just a simple yes or no is all we need. We're not testing the light, we just want to know where he was positioned. That's all you're being asked. MR BALOYI The Apollo light is a distance away. What I'm saying is that there was sufficient light on our street, Bafokeng Street and he was standing about there. MR LOWIES ...(indistinct) INTERPRETER The speaker's mike is not on. MR LOWIES Sorry. Is it not so that the light was actually shining from the top, behind him towards you, as I have demonstrated to you? CHAIRPERSON On the evidence of this witness or on your instructions? MR LOWIES On his evidence. MR BALOYI This puzzles me. What I am saying is, just as those lights above there are not shining directly on you, they are just casting light. All I'm saying is that there was light and that is where I saw him. CHAIRPERSON Assuming that pole next to this camera is the Apollo light, do you understand that? Let's assume that this is the Apollo light, do you understand that? MR BALOYI Yes. CHAIRPERSON Where would Mtwana have been standing in regard to the light? We know that it may have been a distance from your house, and where were you standing? MR BALOYI ...(no English translation) CHAIRPERSON Well he would have been between the pole and yourself, is that what you're saying? MR BALOYI The pole light is as far off as Botswana, it was the light that was cast in our direction. MR LOWIES What made you sure that it was Zulu and nobody else? What were the distinguishing features that you saw? Because you are making a mistake on his version and I'd like you to tell us what those features were. MR BALOYI I will put it this way. What I said yesterday - I'm not sure whether you're going to understand it or not, but I said yesterday when he emerged from there he called out to my son, he called out: "Morena" and he called out "Lucky". What I know very well is that I am not seeing him for the first time today, nor did I first meet him two days ago. I knew him from a long while ago, he was a resident at Serela and he used to perform with our children. Maybe you understand that. MR LOWIES I understand that. The question is; what distinguishing features made you so sure that you saw him on the day and not somebody else? CHAIRPERSON You see I'm not too sure what it is that you are, or whether you want him to tell us what features he has, because what he is saying is that he knows him very well, he's seen him on a number of occasions. MR LOWIES I get the point, Chairman. CHAIRPERSON He comes to visit his in-laws, which I gather from him is about four houses from where - is that right, is it four houses down the road, the in-laws? MR BALOYI ...(no English interpretation) MR BALOYI My house is opposite Buwa's. CHAIRPERSON The in-laws which Mr Zulu used to visit, are they four houses from your house? MR BALOYI It is the fourth house from mine. CHAIRPERSON His son, Mr Baloyi's son, took part in a traditional dancing club. That's what he's saying, so that's why he says he knows him very well. MR LOWIES I would like to ask you this, did you see whether he had a beard or not on that day? MR BALOYI Please repeat. MR LOWIES Did he have a beard that day when you identified him there outside? As he denies that he was not there, he challenges you. - that he was there, sorry. He denies that he was there. MR BALOYI He is the one who is denying that. If he denies it, what am I supposed to say. If he denies that he was present he must explain where he was, he is the one who must do the explaining. MR LOWIES He can explain, he says he was in KwaZulu Natal and he visited a doctor that day, or over that period. But the point is, Sir, you must - no listen please, the point is ...(intervention) MR BALOYI I maintain that I saw him. That is what I say. MR LOWIES You must please just tell us ...(intervention) CHAIRPERSON Mr Baloyi, I don't have to repeat this, Mr Lowies represents amongst others, Mr Zulu, according to his instructions Mr Zulu was not there, do you understand that? MR BALOYI Yes, I do. CHAIRPERSON Okay, so these questions that are being put to you are intended to test whether indeed the person that you claim to have seen and heard was Mr Zulu. Do you understand that? MR BALOYI ...(no English interpretation) CHAIRPERSON Don't answer first. Do you understand what I'm saying? Do you understand that? MR BALOYI ...(no English interpretation) CHAIRPERSON Do you understand what I've just explained to you? MR BALOYI No, I did not. CHAIRPERSON Okay, I will explain it to you again. Mr Lowies is representing amongst other, Mr Zulu, Mr Zulu says he was not there, so what Mr Lowies is doing is to test whether the person that you say in your evidence you heard and saw was indeed Mr Zulu, do you understand that? Do you understand what I've just explained to you? MR BALOYI I maintain what I said, it was him. CHAIRPERSON So at this stage it is not for Mr Zulu to come and explain. If necessary and if he's advised to do so he will come and tell us his own version, but for the time being you are there to answer the questions, do you understand that? MR BALOYI Yes, that's alright. I saw him calling out "Dodudu, Morena" and "Lucky". If it wasn't him then I don't know who it was. Nobody else would have called out to them on that night. He is the one who used to perform with them. MR BERGER Chairperson, could I ask for an indulgence, Mr Baloyi looks very tired. Could we take the adjournment at this stage? It's 4 o'clock. CHAIRPERSON We don't have time. At the pace at which we are going we are not going to finish. If we still have to listen to 24 witnesses, we're not going to finish. MR BERGER It's not going to be 24. CHAIRPERSON We can take a short adjournment and come back, but we'll have to continue with this cross-examination. MR BERGER He is exhausted, can we take a short adjournment? CHAIRPERSON Mr Baloyi, can you still give evidence or are you tired? MR BALOYI I can continue, but I don't know how many questions still remain. CHAIRPERSON I think we want to have an indication as to how long you are going to continue. MR LOWIES I think half an hour, it could be less. CHAIRPERSON I beg your pardon? MR LOWIES Half an hour, or it could be less. CHAIRPERSON Okay, who is going to be the next person? MS PRETORIUS I will be the next person, but I won't canvass this again. There is only one ... MR BOTHA I think I should be about half an hour. CHAIRPERSON Right. MR LOWIES I don't believe that I will be more than half an hour, Mr Chairman. CHAIRPERSON Yes. MS TANZER I should be about 10 minutes. CHAIRPERSON Okay. Mr Baloyi, if you are no longer in a position to continue giving evidence, let me know because what they are telling me is that they are still going to be here with, they still have to ask you questions for some time. So if you are tired at this stage we will adjourn and you will come back tomorrow morning and we will continue. MR BALOYI That is alright, we can continue even tomorrow. CHAIRPERSON Now when you say ...(indistinct), what do you mean? Do you mean you can continue now until half past four or do you want to take the adjournment now? MR BALOYI Yes, we can continue until half past four. MR LOWIES Thank you, Chairman. Now please, Sir, just to make sure I want to know, could you see whether he had a beard or not? MR BALOYI I am maintaining what I said, he called out to my son. I was watching. MR LOWIES Must I then take it you can't say whether he had a beard that night or not? MR BALOYI I cannot comment. If you know a person well you would not concentrate on whether they have a beard or not that day. MR LOWIES Is it correct you can't even recall what clothes he had on, whether it was dark or light, not even that? MR BALOYI No, I do not recall his clothing. MR LOWIES Was there ever trouble between you and him in the past? MR BALOYI We were on very good terms. We had participated in the burial of two persons from his in-laws. I contributed R4 400. Those people, I contributed to their burials. I did not hate them. Those in-laws still reside there on my same street. I do not hate anyone. MR LOWIES But don't you dislike him because he is a member of the IFP, according to you? - of Inkatha. MR BALOYI I would not hate a person on those ground, I do not care about all that, I just like people who are honest. MR LOWIES Are you saying that he is dishonest? ADV SIGODI I don't think that was interpreted correctly. He said ...(no English interpretation). MR BALOYI Yes, that's what I said, people who live well. ADV SIGODI Human beings maybe more appropriate. MR LOWIES I'll retract the question, I understand there was a problem. Now Sir, is it not so that Dodudu was doing these dances with lots of other people, who could have called his name, not just Mtwana? MR BALOYI It is true, but Mtwana was their teacher. He is the one person who gave them instructions and everything that pertains to that dancing. MR LOWIES How far was he approximately away from you when you saw him? I think it was the distance pointed out yesterday, Chair. - 15 metres, okay. After he called out the names of Dodudu and Morena, what happened to him, what did he do? MR BALOYI These people were on their way to the hostel and when they broke my gate they said: "Kill the dogs". MR LOWIES No, I'm talking about Mtwana, only him. MR BALOYI He did not come to my house, he did not enter my premises and I did not see him attacking. MR LOWIES Now just describe the scene. I mean at one moment he is calling these names, what happened to him, did he just vanish or didn't you look further or what was the situation? Did he get into a Casspir? That is what I want to know. MR BALOYI There was no Casspir, they were walking on foot. MR LOWIES Okay, what happened to him, or didn't you notice anymore, did you go somewhere else? That's what I want to know. MR BALOYI I am not the only person who heard these names being called. CHAIRPERSON What he is asking you is, after he had called the names Morena and Dodudu, what did he do, could you see what he did thereafter or didn't you notice? MR BALOYI After that they were on their way to the hostel and as they broke my gate, it was at that time that they shouted: "Kill the dogs" and then the people entered my premises, broke my door and did whatever they had to do. They didn't much time in my house. CHAIRPERSON And did Mr Zulu walk away? MR BALOYI I do not know. MR LOWIES Now how long did you look at him, was it just briefly or did you stand there and stare at him for a while? MR BALOYI There was no time really, it was fighting. MR LOWIES Now inside the house, the door where you were, that you used to push the person who assaulted you, how does it open, does it open from the bedroom to the lounge or does it open from the lounge to the bedroom, as I have indicated to you? MR BALOYI Which door, my door? MR LOWIES The door that you, on your version, used to push the attacker away who was trying to hack you how does it open? MR BALOYI It opens into the bedroom. MR LOWIES So do I understand correctly, the attacker was standing there in the doorway and you pushed him with the door that was opening, that was actually closing from the bedroom towards the lounge, the sitting-room? MR BALOYI Yesterday I said I had held the door with my right hand and when I closed it from inside I pushed it this way and opened it this way. I knocked him down with the door and he fell onto the sofa. MR LOWIES How could you knock him down if he didn't go actually into the room, because the door does not open the other way? MR BALOYI I would like us to go to my home now. CHAIRPERSON But doesn't the witness say that the door was half open? It was not closed, it was half open. He was behind the door which opens inside to the bedroom, so when this man tried to enter the bedroom he closed the door pushing him outside. MR LOWIES I hear what you say, Chairman. May I just ask a question regarding that? But did he actually enter into the bedroom or was he just standing here right by the door, which is how I understood your evidence. MR BALOYI He was trying to get into the bedroom because he wanted to hack me you see. He had this axe and he wanted to axe me, to hack me with the axe and on a third attempt he knocked or hacked the door. I can take you to my home now so that you can see the door. MR LOWIES Now how did it happen that the suitcase actually flew open? MR BALOYI You see he fell onto the suitcase. MR LOWIES But the suitcase was on top of the table. MR BALOYI The suitcase was on the floor and when he fell you see, he fell onto the sofa during which time the suitcase flicked open and glasses got broken and the items that had come from Victor were there, Shoes belonging to Victor's, or Mxena's wife were there as well. MR LOWIES But I understood your evidence to be that he left the suitcase on the table. MR BALOYI On the table? No, there is nothing as such. He put it on the floor and it was open. MR LOWIES And what made him just go away after that? I mean he tried to open the door and then he just left without trying to open the door further - sorry, he hacked at the door and then he just left without trying to open the door further, is that your evidence? MR BALOYI He left, because you see I said he attempted three times and on the third occasion he hacked the door and somebody was calling out outside to say time has run out. He took the clothing items belonging to the children. Items which were lying on the sofa he took along. MR LOWIES And the other attackers didn't assist him at all, the other two chaps that came into the house with him? MR BALOYI They took things and they left, they did not help him. He too wanted to take whatever he thought appropriate and he failed, because he even left the ones that he had brought along. MR LOWIES I want to put to you, Sir, that this scenario whereby he was trying into the room and you knocking him over with the door, is not true, it did not happen. MR BALOYI I am saying if you have the truth or if you want the truth I can take you to the place so that you can witness this for yourself. MR LOWIES And you did not see as much as you are pretending to have seen, you are trying to put a greater role onto yourself than that you played on the specific day of the incident. MR LAX Sorry Mr Lowies, I'm a bit puzzled. He is not attributing any role to himself, he's talking about what he observed. There's a very big difference between the two. MR LOWIES I put it to you that this did not happen and therefore you are attributing more to yourself than what happened. MR BALOYI You are the one asking me. If you ask me, do you want me to keep quiet? Because I have to tell you about the things I saw happening and tell you about what I did. MR LOWIES But why did you get on to - how did you get onto the roof of the garage? MR BALOYI Are you through with this one now? CHAIRPERSON The witness has told us that he got onto the roof, and I think somewhere along the line he mentioned a ...(indistinct). Now do you want to suggest to this witness that he didn't go on top of the garage? MR LOWIES Yes. CHAIRPERSON Okay. Well because these issues have been canvassed, why don't you just put to him what your instructions are? MR LOWIES ...(indistinct) got instruction, I have to test him on the probabilities, Chairman. CHAIRPERSON Whilst you have all the right to test him, but you cannot do that by means of efficient expedition. MR LOWIES I hear what you say, I'll rephrase the question. CHAIRPERSON There's got to be limits on some cross-examination. MR LOWIES I will rephrase it. I want to put it to you that it was not possible for you to get onto the roof of the garage, how did you manage to do so? MR BALOYI The place where my house stands belongs to me, I know the place. I often times get on top of the roof. It's a flat roof you see. MR LOWIES I was there, that's why I'm asking you. ...(intervention) MR BALOYI You were there, but you did not see the area where I managed to get onto the roof through ...(intervention) MR LOWIES How did you get on top of the ...(intervention) INTERPRETER Chairperson, may the answer please be repeated? MR BALOYI I am saying at the place where I have built my second kitchen, not the garage in front, that is a new garage, I just built it recently. The first garage had a chicken pen and I climbed onto the roof through the chicken pen behind, or at the back. MR LOWIES But as I understand you, you were responsible for the first-aid in the street, why didn't you rather apply first-aid to the people who were injured? MR BALOYI I am the one who assisted people with first-aid at Afrox as well as Iscor. I was assisting people with first-aid. I don't know what you want me to say now. MR LOWIES I want to put it to you that as a result of the fact that you were in charge of first-aid, your first priority would rather have been to assist people attacked, than getting onto the roof, which you didn't do. MR BALOYI You see you are saying that if you get injured now, be it in a car accident, black or white, I will help you now. I help all people, even whites. CHAIRPERSON But surely Mr Lowies, I would have thought that as a matter of ...(indistinct) - I see you're putting what you believe ought to be logic, but I would have thought that he would first have to satisfy himself that it was safe to go out first. MR LOWIES But at that stage according to him, it was so, the people had already left, he saw it. CHAIRPERSON But anyway he has answered your question. Anyway go ahead. MR LOWIES Now did you at any stage apply first-aid to anybody, render first-aid to anybody? MR BALOYI I started with my child who was cut by glass. I did not want to take the child to hospital. I did not want to take the child to hospital, and thereafter I went to help the Buwa's and I had run out of bandages or bondages at the time, but they did try to stop the flow of blood and we tried to look for an ambulance but we could not. They wanted me to transport the child to hospital in my kombi and my wife said: "You cannot go under these conditions". As were there outside an ambulance came. That is when we loaded them into the ambulance, but then came the Koyoco that fetched the corpses from the ...(indistinct), a black person as well as a white person. CHAIRPERSON Yes, Mr Lowies? MR LOWIES Why did you get onto the roof of the garage? CHAIRPERSON Mr Lowies, where are you going to take this, what's the relevance of that question? MR LOWIES Chair, it's disputed that ...(intervention) CHAIRPERSON You've just been asking him whether he rendered any first-aid, he answered that question, do you're wanting to know now why he got into the roof. Do you have any further questions to ask? If you don't have further questions, say so. What's the relevance of asking him whether he got onto the roof? MR LOWIES Chair, I have to explore this because I want to put to the witness that he did not get onto the roof and he did so because of a specific reason. What is the reason, why did you get onto the roof? MR BALOYI I was trying to look for the police that you are talking about and trying to look where these people who were killing us have gone to. MR LOWIES But you could see that from the street, not so? You could see that from outside your house, or not? MR BALOYI I am the one who was doing all that, me. I was not supposed to be told by whoever, where to stand or to stand in the street. MR LOWIES Sir, that is the point. There was no reason for you to get onto the roof, you could see, on your version that you gave to my colleague, Mr Strydom, perfectly from where you were standing. Is that true or not? MR BALOYI I was able to see yes, but I decided to get on top of the roof to see. I made that decision, not somebody else made that decision for me. MR LOWIES But that is exactly the point. If you could see from the streets, why go through all the trouble to go onto the roof? CHAIRPERSON He has answered you. He decided on his own that he must go on top of the roof. MR LOWIES I have no further questions, Chair, I can't take it further. NO FURTHER QUESTIONS BY MR LOWIES CHAIRPERSON Mr Baloyi, in view of the lateness of the hour, you will have to come back tomorrow morning so that you may be cross-examined further. Do you understand that? MR BALOYI Yes, I understand. Are they not through with questions? CHAIRPERSON There are still a number of people who have to ask you questions. MR BALOYI It's okay. CHAIRPERSON Would you please made sure that you are here by 9 o'clock? MR BALOYI That's okay. CHAIRPERSON We will rise until tomorrow morning at 9 o'clock. COMMITTEE ADJOURNS