amntrans AMNESTY HEARINGS 1999-11-01 JOHANNESBURG 1 PETER LUJA MBALA AM7953/97 MURDER OF CAIPHUS NDABA AND SIPHO SITHOLE AND ASSAULT ON THOKOZANI MFANISENI AND ARSON ON SPAZA SHOP OF MR ZWANE https://sabctrc.saha.org.za/hearing.php?id=53841&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99110103_jhb_991101.htm CHAIRPERSON Thank you. I'm told we are now going to commence with the application of Mr Peter Luja Mbala. Mr Richard are you appearing for Mr Mbala? MR RICHARD I am Chair, I appear. CHAIRPERSON Thank you. MS LOCKHAT Lyn Lockhat appearing on behalf of the Truth and Reconciliation Commission. Chairperson, just for the record, all the victims, we have been trying to notify all the victims. We put an advert in the local newspaper, as well as broadcast on the radio in this incident, Chairperson and no one has come forward to date. CHAIRPERSON Thank you. Mr Richard. MR RICHARD Thank you. I call the applicant and he will be sworn. PETER LUJA MBALA (sworn states) CHAIRPERSON Thank you. Mr Richard. MR RICHARD Thank you Chair. EXAMINATION BY MR RICHARD Mr Mbala, in and during April 1994, where did you live? CHAIRPERSON Mr Mbala, when you speak you must push the button so that the light comes on. MR MBALA Okay MR RICHARD Alright, I'll repeat the question. Mr Mbala, in April 1994, where did you live? MR MBALA Well, I resided in Nswalede, this is a squatter camp and at the time it was referred to as Power Park. MR RICHARD Thank you. Now ...(intervention) CHAIRPERSON Sorry, Mr Richard, before you proceed. Mr Mbala, whereabouts is that? Which town is it ...(end of tape) MR MBALA It just was Orlando Garage. MR RICHARD Now in Power Park, who lived there? Did they belong to the ANC or the IFP? MR MBALA It was predominantly ANC area. MR RICHARD Now was everyone ANC or was 10 or 20% IFP? MR MBALA Well, the first time we knew about the IFP people was on the 28th of March, who were residing there because they were coming from a rally in town at the time. That was when some of them were shot at the Shell House incident, that's when we realised about their presence there in the area, the IFP people that is. MR RICHARD Now were you a member of the ANC? MR MBALA Yes. MR RICHARD When did you join the ANC? MR MBALA It was in 1990. MR RICHARD 1990. Now what made you join the ANC? MR MBALA Well I like it. I liked ANC it was dear to me. MR RICHARD Now, did you ever belong to the Self Defence Units, the SDUs? MR MBALA Yes, I was. MR RICHARD When did you join them? MR MBALA In 1992. MR RICHARD How did you come to join them? What did you do to join them? MR MBALA It is because ...(indistinct) that our people were being destroyed and killed, now it was one way of defending the community, or our people. MR RICHARD Now we're talking about 1990, not 1994, what attacks had happened on your people that you had to defend yourselves? JUDGE DE JAGER I think it's common cause that during that period we had almost a war between the IFP and the ANC, so I think you could carry on, I think you could accept that we've got that knowledge. MR RICHARD Thank you. Now, on the evening in question, that's the 9th of April, where were you? 1994. MR MBALA I was in a patrol. MR RICHARD Now who else was on patrol with you? MR MBALA Thofolias ...(indistinct) Cala, Mgabane and Madidwa and Myega. Well the other ones I knew them with their ...(indistinct) names. MR RICHARD Now on this patrol, what were you doing? Were you going from house to house or were you stopping cars? MR MBALA May you please repeat your question? MR RICHARD On the night of the 8th to 9th April 1994, what were you doing while you were patrolling, were you going from house to house, or were you stopping pedestrians? MR MBALA It was because we had already heard and some people of IFP had already been identified, now we deemed it fit for us to - as we had already identified them on the 28th there in the area in the squatter camp, now we decided that we'll go on a patrol and look for them and we went out to look for them and we were wanting to find out as to where their whereabouts are, as to where they were. MR RICHARD And how did you do that? MR MBALA We went to the houses that we suspected that perhaps the occupants could be the IFP people. We went into such houses and wanted to establish if they will attend such meetings of IFP and so on. This is what basically we would do and as we were inquiring from other people as to if they knew or they had information of such and one person told us that we should go to a certain place, Mr Zwane's place, and that's where we could locate some of them and we went there indeed. CHAIRPERSON Sorry, Mr Mbala. Whose place was that? You just mentioned the name, what was the name? MR MBALA Mr Zwane. CHAIRPERSON Approximately how many of you were on this patrol? You've mentioned a few names but how many of you were there that made up this patrol? MR MBALA We were about 7, well maybe to 14 and we will collect others, so we will increase in number, the group was increasing. CHAIRPERSON You collected others, the further you patrolled the more people joined and so the group got bigger and bigger as you went on? MR MBALA Yes. You see at the time that was when we'd already heard and we wanted to identify these people, this is why we're getting now house to house to locate such people. CHAIRPERSON Thank you Mr Richard. MR RICHARD Thank you Chair. Now once you found an IFP member, what would you do with an IFP member? MR MBALA Well when we got there, we asked them if they were, which organisation did they belong to because they were not part of our patrol group and we asked them why is it that they did not join the patrol that we're on and they said- we could not tell as to whether - they were quite evasive in their answer and that is when we started the assault. I slapped him and he left to the other room and the other colleagues shot and I pushed the other one out. There was that commotion that was intensifying. MR RICHARD And who was your other colleague? MR MBALA Mgabane. MR RICHARD And was he the Commander of the SDU unit? MR MBALA Yes, indeed he was. MR RICHARD Now, this altercation developed at the house of Mr Zwane. What did Mr Umgabane do? MR MBALA Mgabane you mean? MR RICHARD Yes. MR MBALA After he had shot at them, we left the house and went on. After quite a distance we gathered again. Some of our group members left and we went to our various rooms and later on we convened as a group of the SDUs and we asked one another and I asked if he had taken the cartridges because that could give some light to the police and may serve as something that could pin us down and we tried to go back to see if we can not take the other cartridges to destroy the evidence and we tried to do that and around that place there was this big 25L drum and it was filled with paraffin because there was a workshop around and I kicked it towards the house, to the direction of the house and the paraffin spilled all over and I set the area alight and we left immediately thereafter. MR RICHARD Now when you talk about Mr Zwane's house, was there a spaza shop at the place? MR MBALA It's a tuck shop, spaza shop in our language. MR RICHARD Yes. Now what else do you know about what went on at Mr Zwane's house? MR MBALA The one that I was aware of, or something that I was aware of? MR RICHARD What had you been told? MR MBALA Well I was told that Zwane will take a few people from the hostel and keep them in his house and the people who were hostel dwellers were known to be IFP and we always had this misunderstanding between us and them and he will harbour such people in his house, that's how much I knew about him and what led us to go to that house was that knowledge we had to our understanding. MR RICHARD Did you ever get told that meetings were planned at his house? MR MBALA Yes, something, some rumour or something to that effect was also being said, although I never witnessed one, but something towards that extent was. MR RICHARD What was the effect of the rumour? MR MBALA Well, one thing that was being said about Zwane was that he would take the people from hostel to his house and keep them there. MR RICHARD Than you. Now, I asked a question earlier. When you went on these patrols, I'm not talking about Mr Zwane's house, I'm talking about the general situation, you went from door to door and you were looking to find out who was IFP and who was ANC, now what was the plan as to what you would do when you found an IFP member? What would you do with him? MR MBALA Well, because of the situation that prevailed at the time, we also, our spirit - we were quite alert about such things and we were quite active and we wanted to locate such people and we were also quite under influence, so to speak. CHAIRPERSON But if you did locate an IFP person, what would you have done to him? When I say you, I mean your patrol? MR MBALA Well, I was not the one to give out orders or instructions to that effect, but we will first one to establish if he was in a fighting spirit or a fighting mood and then that will give us direction as to how and what to do. JUDGE DE JAGER Did you regard them as your enemies and would you kill them? MR MBALA Well quite clearly yes, because at the time we were highly upset and angry at them because they were also attacking and killing a number of us. MR RICHARD Now the Commander of your unit, Mr Mgabane, where is he now? MR MBALA Well I heard after I'd been in prison that he has since died in 1996. MR RICHARD Now, what was it that you hoped to achieve by finding IFP members and possibly killing them? MR MBALA Well, there was nothing to achieve as such, but the main idea here or the main objective was to protect the community, not that there was something that we intended to benefit or achieve. MR RICHARD And what political advantage would you hope to achieve? MR MBALA Well, there was an election that was coming soon, so we hoped to gain. Well, what is your question exactly? MR MBALA What was your political motive in this situation? MR MBALA Well, the country. MR RICHARD Let me try it this way round. How would the ANC benefit by what you were doing? MR MBALA You mean by what we are doing? MR RICHARD By what you were doing on your patrols? MR MBALA Well our acts were mainly to protect the community, not that there was something to benefit, but to protect and defend the people. MR RICHARD No further questions. NO FURTHER QUESTIONS BY MR RICHARD CHAIRPERSON Ms Lockhat? MS LOCKHAT Yes, thank you Chairperson. CROSS-EXAMINATION BY MS LOCKHAT Mr Mbala, did you patrol the area every night? MR MBALA Yes, we were patrolling the are quite often but some times we will exchange, a group of us will go this night and the following night or the next time it will be a different group of people, so we'll exchange shifts, so to speak. The others will take on the 12 o'clock midnight shift and go and come back, the others will relieve them. During the course of the day, the same thing will go on. MS LOCKHAT Is it correct that Mr Zwane, certain members in his house at the spaza shop like Mr Ndaba that was killed and Mr Sithole, also had to conduct these patrols with you people, is that correct? MR MBALA Well, please repeat your question. MS LOCKHAT Mr Zwane had a spaza shop and people like Mr Ndaba, the person who was killed, was also tasked with patrolling the area, is that correct? MR MBALA You mean Ndaba? I never saw Ndaba in any of the patrols we conducted, even Zwane himself, I never saw him. JUDGE DE JAGER Sorry, could I just find out, you had the ANC people in the SDU units who were patrolling the area, is that correct? MR MBALA Yes. JUDGE DE JAGER And if there were IFP people living in that area, would they refuse to patrol? MR MBALA There wasn't that understanding between us and them, there was no way they could join us in the patrol, because they did not form part of us and we did not share same sentiments with them. JUDGE DE JAGER Yes and so if people refused to patrol with you, you could realise they are not sympathetic to the ANC? MR MBALA Yes, we will sit down and discuss about such people, as to what could be done to them, or should be done to them and quite a great number of the community also would have an input in such meetings and that's where decisions would be taken, from that general meeting. CHAIRPERSON Ms Lockhat. MS LOCKHAT When you got to Mr Zwane's house, there were people that were not part and said they didn't want to form part of the patrol, is that right? MR MBALA Well, there in the house, at Zwane's house. CHAIRPERSON What Ms Lockhat is asking you, when you got to Zwane's house, were there people there who indicated that they did not want to participate in the patrol? MR MBALA Well, I hear the question, but I don't quite follow it. I don't quite understand. Please repeat it again. CHAIRPERSON When you got to Zwane's place, did you find people there who gave you, that is the members of the patrol, the impression that they did not want to join the patrol? MR MBALA Yes, quite clearly. MS LOCKHAT And then did you, the two deceased, that is Mr Ndaba and Sithole, did you and you other comrade Monde, then start slapping them and ask them you know, "Why didn't you want to participate in the patrol?", or did you think they were IFP supporters? Am I right? MR MBALA Well, we'd already heard that they were IFP people and we went there with this kind of information and we asked them a few questions and they wanted to leave us alone as we were talking to them. They wanted to run away. MS LOCKHAT So who informed you that they were IFP sympathisers? MR MBALA Well I heard that from the patrol, after I'd already seen them one day as the hostel dwellers were leaving, going there to that house, I identified them as part of the group and before all these things, they used to reside also in the area not in the hostel, so I quite knew them, so after I heard during the patrol about them, that confirmed to me that this is what I once saw earlier on, so it just fell in line. MS LOCKHAT And who gave you the instructions to start slapping the two deceased persons? MR MBALA You mean, who gave me instructions to slap them or to kill them? What exactly is your question? CHAIRPERSON The question was to slap them. MR MBALA Well that came from me, no one furnished that kind of order to me, that's how I thought I will stop him from running away as they were attempting to. MS LOCKHAT And who was our Commander? Who was in charge of that patrol session of yours, of that unit? MR MBALA It was Mgabane. MS LOCKHAT And did Mr Mgabane shoot the two deceased persons? MR MBALA Yes. CHAIRPERSON Sorry Mr Mbala, if you could just describe that. Did he shoot them execution style, or were they running away? If you could just describe the actual shooting of the two deceased persons. MR MBALA The first one attempted to run away and he shot them as he was attempting to go out through the window and the second one was standing and when I heard the gun shot, I did not know who was shooting and I pushed the other and I wanted him to be the one who will sustain the shots first and when I discovered that it was Mgabane shooting and he shot even the one I had as well. CHAIRPERSON Ms Lockhat. MS LOCKHAT Did you have a firearm on your person? MR MBALA Yes, I had a firearm and a spear in my possession. MS LOCKHAT And you did not use that firearm, is that correct? MR MBALA No, I did not use it. MS LOCKHAT What happened to your firearm after your arrest? MR MBALA There was one Nkodile Fumendlini, that we were arrested together and our cases were combined as to relating to the incident of the 28th and he was turned into State witness, that's where we kept the firearms and that's where we were taken by the police and the firearms as well were taken by the police from the same place on that particular day. MS LOCKHAT Thank you Chairperson, I have no further questions. NO FURTHER QUESTIONS BY MS LOCKHAT CHAIRPERSON Mr Richard, do you have any re-examination? MR RICHARD ...(indistinct - mike not on) NO RE-EXAMINATION BY MR RICHARD CHAIRPERSON Thank you. Judge de Jager, do you have any questions? JUDGE DE JAGER But you used your spear, didn't you? MR MBALA Well I did use it. When I was pushing him after I heard the gunshot, I pushed him with the spear and he was torn and sustained injuries on the chest. JUDGE DE JAGER Didn't you stab him in the throat with this assegai? MR MBALA Yes, I did, although I don't know where exactly, which part in his body did I get, but I know for a fact that I did push him with this spear. JUDGE DE JAGER You see in your statement that you made to the TRC in answering the questions on page 11. CHAIRPERSON It's the second last paragraph on page 11. JUDGE DE JAGER You stated "The gun shots made me emotional, so I stabbed another one in the throat with my assegai." CHAIRPERSON What do you say to that? MR MBALA Yes, it is like that, or it is so. CHAIRPERSON Do you know what's happened to that person you stabbed? MR MBALA I don't know what happened to him. CHAIRPERSON At your trial, were you charged in respect of that stabbing? MR MBALA You mean at the trial? CHAIRPERSON Yes, that was the question. At the trial were you charged in respect of that? Was that one of the charges as your trial, the stabbing of this person in the throat? MS LOCKHAT Chairperson, if I can be of assistance. CHAIRPERSON Thank you. He was just charged with ...(intervention) MR MBALA I don't quite remember. MS LOCKHAT Two kinds of murder, the two deceased and then one of the robbery, but he was acquitted on the robbery charge and then found guilty of two charges of murder. CHAIRPERSON Thank you Ms Lockhat, So I take it then that the person that was injured in the throat or the chest, did not die because I see from the bundle before us the two post mortems of the deceased, both had gun shot wounds to the head. Sorry Judge de Jager. JUDGE DE JAGER The man you stabbed, was it that same man you pushed forward and who was shot by Mr Mgabane? MR MBALA Yes, he's the very one. CHAIRPERSON So he is a deceased as well. Adv Sigodi, do you have any questions you would like to ask? ADV SIGODI No. CHAIRPERSON Mr Richard do you have any questions arising? MR RICHARD No further examination. NO QUESTIONS BY MR RICHARD MS LOCKHAT No questions, thank you Chairperson. NO QUESTIONS BY MS LOCKHAT CHAIRPERSON Thank you Mr Mbala, that concludes your testimony. WITNESS EXCUSED CHAIRPERSON Mr Richard. MR RICHARD Thank you Chair. CHAIRPERSON Any further ...? MR RICHARD Nothing further. CHAIRPERSON And I take it ...(indistinct) so that's the end of the evidence. Are you ready to make submissions? MR RICHARD Yes. CHAIRPERSON Thank you. MR RICHARD IN ARGUMENT Chairperson, the matter is straightforward and the facts are clear. The applicant was an ordinary member of a Self Defence Unit at a time where, as Judge de Jager pointed out, there was a mini war going on in that area of the township. I don't believe I need to say much more than to record that the IFP and the ANC did see each other as enemies. The context of this particular matter is that it took place shortly after the Shell House Massacre at a time when ...(intervention) CHAIRPERSON And also shortly before the elections, when things were hot. MR RICHARD Rather so. And, as has often been argued, the perception, whether it was true or not we do not really need to pursue, is that this Mr Zwane harboured, took care of or supported IFP members from the hostel and indeed when the visit happened on that evening of the 8th, there were two persons who did not participate in the neighbourhood patrol and they were dealt with as enemies and killed. CHAIRPERSON I think, at that time you know, just from our experience, Mr Richard, in hearing a number of these matters, I think it can be safely said with regard to both, there was very little tolerance. People were intolerant. Often the behaviour indulged in could not be objectively described as being reasonable. It was often in the heat of the moment, very intolerant because of the prevailing circumstances. MR RICHARD My submission is that, taking into account as has been pointed out, a few weeks before the election and a few weeks after Shell House, it wasn't the most rational period or the period where people were coming to the most balanced of decisions. The real questions is whether the act in itself is proportional to the objectives pursued. In this particular matter it is true that there was a danger of imminent attack, whether it be by the IFP on the ANC or the ANC on the IFP, it makes no matter and taking the perception that the Self Defence Unit might have had at the time, to kill an enemy was probably not disproportionate. There was a political struggle. A struggle between the ANC and the former State, the ANC and the IFP and others and in this situation prevailing, I would say that the various tests listed in Section 20(iii) are met. The motive was not personal gain. The context I've already addressed. The legal and factual nature, well murder is a very serious offence, no matter which way round we go, but in the political context it can be rationalised. CHAIRPERSON I think we also have the situation here and it's just come in here and I'm just speaking off the top of the head now, they went there and when they went there, this is what I gather from the applicant's evidence was he didn't know what was going to happen to those people, he wasn't a leader sort of thing and that when they came across an IFP person or a person who was reluctant to patrol, it would depend on the circumstances what would happen to that person, whether he was aggressive etc. etc. So I don't think we must lose sight of the fact also that it was not him who actually pulled the trigger, that when they went there, got there, that it wasn't with the predetermined idea that they are going to massacre those people, that would depend on ...(intervention) MR RICHARD I did ask the question, what was your plan as to what you would do? CHAIRPERSON Yes, but that would depend on the circumstances. What I'm saying is, when they were actually on the way to Zwane's house, there wasn't the intention to, necessarily to kill. MR RICHARD It's not as if the patrol was a horde out to kill, it hadn't yet formed that intention. The intention in fact was formed by the leader when he pulled the trigger. CHAIRPERSON I think this is a sort of factor that also comes into account in the determination of the question of proportionality, the actual role played by the applicant as opposed to Mgabane, who was the leader and took it upon himself to shoot these people. MR RICHARD Thank you Chair. Now the role - I don't think I really need labour the point further, but the role of the particular applicant, he was one of a number and that is how I've noted it over here in the group that went out on the patrol. Mgabane, the leader, was with them, obviously giving directions. It was not as if it was the applicant's initiative to either go to that particular place or to kill those particular two persons. His particular act was to use his assegai after the incident had developed. In the heat of the moment, I believe that his act, on the subjective level, was appropriately proportionate. CHAIRPERSON If one takes a look at the post mortem report, Mr Richard, I can't recall, I might be wrong, seeing too much about this. MR RICHARD The neck ...(intervention) CHAIRPERSON Small abrasion on right chest wall. It didn't look like that would be a fatal type wound from the post mortem reports. MR RICHARD The post mortem reports are clear. CHAIRPERSON Here it is, this one, I'm on the second one, page 59. "A .7 x .2 cm," so that's like that, "irregular slit-like penetrating wound with a .6cm tail of abrasion, laterally over the left posterior neck." So it, and then another one on the right neck. MR RICHARD If one goes to page 58, the pathologist was quite plain. CHAIRPERSON Yes, the gun shot wounds. MR RICHARD And ...(intervention) CHAIRPERSON Yes, I'm just saying, it's not, the neck wound doesn't look like ...(intervention) MR RICHARD It doesn't seem to have really contributed to the demise of the deceased and it wasn't a savage or a ...(intervention) CHAIRPERSON No, it looks like quite a small wound, yes. MR RICHARD And then as has already been said, the proportionality is the particular role that this applicant played on that evening in the incident. It might be that in order to cover their tracks, he was the one that torched the spaza shop, but in the act of murder, which is the act for which he principally applies for amnesty, his participation was no greater or lesser than any part of the patrol, except for the use of his assegai. It so happens that he was identified and caught, but in his evidence before us, it brings me to the next point, he's been perfectly open and candid. He said, to use his words, "That is so." CHAIRPERSON Yes. MR RICHARD It's not as if he's ... CHAIRPERSON Yes what does he apply - he only mentions on the form two murders, but in his statement he talks about arson, so ... MR RICHARD I have my own particular view of the interpretation of the Act. The arson and the murders were part of, so to speak, the res gestae, they all happened within a very short period. CHAIRPERSON The one transaction. MR RICHARD And the fact that an applicant, assisted by a cell mate in prison, filled in the ...(intervention) CHAIRPERSON And one can regard the statement as supplementation of the application, but I want to just get it from you. He's applying for two murders, arson, we don't know anything about the gun. MR RICHARD It's not an issue ... CHAIRPERSON Yes, because it might have been licensed, we don't know. MR RICHARD The charge sheet and summary of facts don't make mention of possession of a firearm, so one must assume that the person who turned State evident ... CHAIRPERSON It's basically the two murders and the arson? MR RICHARD Correct. MR RICHARD Chair, I believe on that note I can conclude. I don't think there's anything more. If the Committee would want written heads, I'm happy to. CHAIRPERSON No, I don't think we need that. Ms Lockhat? MS LOCKHAT I have no further submissions, thank you Chairperson. NO ARGUMENT BY MS LOCKHAT CHAIRPERSON Yes, thank you, we'll reserve our decision in this matter. Mr Richard, thank you. Ms Lockhat thank you. Mr Mbala, that brings your hearing to an end. We'll get our decision out as soon as possible. We realise that you are in prison. Thank you. MS LOCKHAT Chairperson, the next matter on the roll is the five applicants with Mr Brian Kopedi as their legal adviser. Can we just adjourn? CHAIRPERSON Do you want us to adjourn, because he'll have to set up ... MS LOCKHAT I think we can adjourn. Shall we adjourn until after lunch? Shall we - after lunch, or it depends entirely ... CHAIRPERSON Can we adjourn till - and then start again at half-past one, because I see it's half-past twelve, so we'll take an early lunch and make up the time by starting earlier. MS LOCKHAT Thank you, Chairperson. CHAIRPERSON Thank you. We now come to the end of this particular hearing. We'll be starting with ...(indistinct - talking simultaneously) Because it's half-past twelve now, we've decided to take a lunch adjournment now and we'll start at half-past one with the next matter. COMMITTEE ADJOURNS ON RESUMPTION MS LOCKHAT The next amnesty applicant will be Linda Mntambo and four others. CHAIRPERSON Thank you Ms Lockhat. Mr Kopedi, are you acting for all the applicants in this matter? MR KOPEDI That is correct, Chairperson. My name is Brian Kopedi, I'm appearing on behalf of all five applicants in this matter. CHAIRPERSON Thank you Mr Kopedi. How are we going to - in which order are they going to be heard? MR KOPEDI Chairperson, we will first call Andrew Mathabathe, no sorry, we will call Linda Mntambo first who is number 4 on the list. CHAIRPERSON Yes. MR KOPEDI After Linda we will call Sandile Ndlungwane who'll be the second one. Thereafter we will call Andrew Mathabathe, that's the third one. Then George Mogapi as the fourth one and Rodney Sazi Ndlovu as the fifth one. CHAIRPERSON Thank you.