amntrans AMNESTY HEARINGS 1999-11-15 DURBAN 1 OSMOND BEKISISA NKWANYANA AM5214/97 ATTACK ON MR Mthembu AND MR SIBIYA https://sabctrc.saha.org.za/hearing.php?id=53938&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99111518_dbn_991115db.htm CHAIRPERSON Yes, is it Ms Loonat, are you representing. MS LOONAT Nkwanyana and Mpilo Khuzwayo, yes Mr Chairman. CHAIRPERSON Are you ready to proceed? Very well. Yes Ma'am, I might as well make a note of your name as well. MS JELAL Ms Jelal, I represent the families of the victims. CHAIRPERSON Yes, we'll do it formally in a minute. We will now proceed to hear the amnesty application of Osmond Bekisisa Nkwanyana Amnesty Reference AM5214/97 and the application of Ketha Mpilo Khuzwayo Amnesty Reference AM6175/97. The Panel is constituted as is apparent from the record. I'm going to ask the legal representatives to put themselves formally on the record. Ms Loonat, perhaps you should do that first. MS LOONAT Thank you Mr Chairperson. I'm Zereena Loonat and I'm representing Mr Nkwanyana this morning. CHAIRPERSON Thank you Ms Loonat. Ms Jelal. MS JELAL Thank you Mr Chairperson I represent the families of the victims. CHAIRPERSON Leader of Evidence. MR MAPOMA Zuko Mapoma, Leader of Evidence, as before. ADV BOSMAN Mr Chairperson if I may just inquire, are you just representing Mr Nkwanyana? MS LOONAT Both of them, thank you. CHAIRPERSON Yes, Ms Loonat, who's the first applicant that you are going to lead? MS LOONAT Mr Chairperson, we'd like to lead Mr Nkwanyana first because his actually not applying for amnesty, he maintains that at the last session, he maintains that he wasn't even present at the scene of the crime, so he can't apply for amnesty. Thank you. CHAIRPERSON Yes, well let me just see. We do have an application from him, so you'll lead him on that and we'll hear what his testimony is. MS LOONAT Yes, certainly. CHAIRPERSON Yes. Do you want me to administer the oath to him? MS LOONAT Yes, please, Mr Chairman. CHAIRPERSON Yes, I'll do that. OSMOND BEKISISA NKWANYANA (sworn states) CHAIRPERSON Yes, Ms Loonat. MS LOONAT Thank you, Mr Chairperson. EXAMINATION BY MS LOONAT Mr Nkwanyana, do you belong...(intervention) ADV SANDI Sorry, Ms Loonat, just a minute. I just want to clear up something with the Chairman. CHAIRPERSON Yes. Ms Loonat, I assume that you know we do have a formal amnesty application before us, I assume that the comment that you made earlier relates to the attitude of the applicant, as he's conveyed that to you? MS LOONAT Alright. But I assume you're going to lead his evidence on this application and we'll hear what he says and then assess in the light of his evidence what his position really is. So you'll let him tell the whole story to us? MS LOONAT Will do. CHAIRPERSON Yes and we'll see. MS LOONAT Mr Nkwanyana, do you belong to any political party? Which one and for how long? MR NKWANYANA Yes, I am a member of a political organisation. MS LOONAT Please tell the Committee which party you belong to and for how long have you been a member? MR NKWANYANA ANC. MS LOONAT Have you been an active member? MR NKWANYANA No, I was just an ordinary member. CHAIRPERSON And the question was, since when was that, since when are you a member of the ANC? MR NKWANYANA From 1989. CHAIRPERSON Sorry, Ms Loonat. Thank you. Carry on. MS LOONAT Thank you. Do you own a firearm? MR NKWANYANA No, I don't. MS LOONAT Do you have any training in the use of firearms? MR NKWANYANA No. MS LOONAT Do you have proof that you're a member? Are you a card-carrying member of the ANC? MR NKWANYANA Yes, I had a membership card but it was burned down when my house was burned down. MS LOONAT In what circumstances was your house burned down? MR NKWANYANA It was burned late at night. There were attackers, I think IFP supporters attacked, even though I do not have proof that it was IFP, but everyone knew that it was IFP. MS LOONAT Did these attacks take place quite often or was that the only one? MR NKWANYANA It was frequent. MS LOONAT And were you told it was always IFP, or just random attacks by people you don't know? MR NKWANYANA We knew that it was IFP. CHAIRPERSON In which area was all this happening, Mr Nkwanyana? MR NKWANYANA In Majane. CHAIRPERSON Sorry, say again. MR NKWANYANA Majane. CHAIRPERSON At Majane. Was there a situation of political conflict, political violence between IFP and ANC in this area? MR NKWANYANA Yes. CHAIRPERSON Yes, thank you. Ms Loonat. MS LOONAT Thank you. What is the level of your education? MR NKWANYANA Standard 7. MS LOONAT Are you married? MR NKWANYANA No, I'm not. MS LOONAT Do you have any children? MR NKWANYANA I heard that I do have a child, but I didn't see that child because the only time I learned about this is when I was in prison. ADV BOSMAN May I just clear up something Ms Loonat? Mr Nkwanyana, you mention in your application form in paragraph 4 on page 4, if you could just have regard to that and indicate to me. You mention that you learned that your daughter had been injured. Is this the daughter that you are referring to? MR NKWANYANA It is not my daughter that I was referring to on my application, I was referring to my sister's daughter or my brother's daughter. ADV BOSMAN Thank you, you may proceed. MS LOONAT Mr Nkwanyana, please tell the Members of the Committee how you came to be involved in this alleged crime that you have been sentenced for. MR NKWANYANA I had been in that area because I had run away from my home because people were attacking us in my home. We received a letter in eZakeni and in that letter it was written that my home had been attacked and the house had been burned down and a kid had been injured. MS LOONAT What did you do? MR NKWANYANA The following day I decided to go back home to look or to try and get how far the damage went. MS LOONAT How long did you leave your area, to go to the area where you heard about this attack? How long had you left your home? MR NKWANYANA When I left Majane it was in 1993, towards the end. MS LOONAT And you didn't return at all to your home, did you? MR NKWANYANA I would only go home to visit them during the day and then leave. MS LOONAT Why were you scared to go and visit people, your family that was still living there? MR NKWANYANA Would you please repeat that question? MS LOONAT You say you went occasionally during the day to visit your family. Why did you go occasionally to visit them, why didn't you move back? MR NKWANYANA I was scared because attackers were attacking us during the night. MS LOONAT Mr Nkwanyana, on the 3rd of May 1994 were you a part of the gang who attacked Mr Mthembu and Mr Sibiya? MR NKWANYANA No, I wasn't. MS LOONAT Why is your name being mentioned then, do you know? MR NKWANYANA I would say it is because of what others had seen because I had just arrived in the area to look on the situation therefore I think if anyone from the IFP had seen me, they'd identified me as one of the people who attacked these two. MS LOONAT You say you arrived in the area to look at the situation. What situation are you talking about? MR NKWANYANA I wanted to look at the situation in my home because a kid had been injured, had been shot, therefore I went there to assist my family. MS LOONAT So in fact you're saying you were present in the area on the day of the attack, but did you have any idea that this attack was going to take place on this particular kraal that day? MR NKWANYANA No, I didn't know. MS LOONAT What then were you doing there? What happened at the time that you were there? Did you hear any fighting, any gunshots? What happened when you were there? MR NKWANYANA From the house where I was, one cannot see what was going on in the house which was being attacked, but one could only hear. I heard gunshots. CHAIRPERSON In your application form on page 5 of the record, the bundle before us, you are saying that you had gone home and the people of your neighbourhood decided to attack your political opponents in order to take revenge over those people who were injured in the previous attack. You say "That is when I committed the crime." Then on page 6 of the record, that's still part of your application form, it's paragraph 10 (b) you are saying that, the last three lines of that paragraph, you say: "We were also aware that we were attacking Inkatha Freedom Party settlement." Have you noticed that? MR NKWANYANA Yes. CHAIRPERSON Is this your application form? MR NKWANYANA Yes. CHAIRPERSON Yes. We're going to take the tea adjournment at this stage for 15 minutes. I think your lawyer will explain what, how the process of this Committee works and I think your lawyer will explain to you under what circumstances it is possible to approach the Committee for amnesty, but we'll adjourn for tea for 15 minutes. COMMITTEE ADJOURNS ON RESUMPTION OSMOND BEKISISA NKWANYANA (s.u.o.) CHAIRPERSON Ms Loonat. MS LOONAT Thank you Mr Chairperson. Just to recap. Mr Nkwanyana did say that he was on his way to visiting his sister and the child that was apparently in hospital. I'll go on from there. EXAMINATION BY MS LOONAT (cont.) Mr Nkwanyana you say that you heard gunshots. Where were you at the time? MR NKWANYANA I was in a shebeen at Mrs Dlamini's house. MS LOONAT You said you were going to the hospital. What were you doing at the shebeen? MR NKWANYANA On my way home I met my mother and my mother told me that the child was in hospital in Ngwelezane. MS LOONAT So why didn't you go on to see her in the hospital? MR NKWANYANA I wanted to have a look on the damage in my house. MS LOONAT Go on. What happened? MR NKWANYANA On my way home, my home is near a shop. I saw Mr Ketha Khuzwayo and Lana, then I decided to go to the shop and I didn't see any other persons there, I only saw them. MS LOONAT Could I just interrupt Mr Nkwanyana? Please tell us first, when you were at the shebeen, what actually happened at the Shebeen? MR NKWANYANA I bought two beers and I sat there and I drank. There was another lady from Izobo, a family and Msonela Manyawo. MS LOONAT And what were you all doing together? MR NKWANYANA We were drinking, Msonela and myself. As we were sitting there I heard gunshots. First I heard gunshots, but the noise was not too loud and then later I heard another gunshot which was louder than the first one and then I left that place because I thought that something was not right. MS LOONAT Did you have a firearm on you at the time? MR NKWANYANA No, I didn't. MS LOONAT Did you all run away from the shebeen, is that what you're saying, when the gunshots were heard? Is that correct? MR NKWANYANA Yes, we all ran away. We were scattered. MS LOONAT Where were you going from there? What was your plan? MR NKWANYANA I decided to go back where I was coming from because I was scared if other people were to come they were maybe going to kill me. ADV BOSMAN May I just interpose? You say "We all ran away." Who are the all that ran away? MR NKWANYANA There were people in that shebeen people who were working from a sugar cane field and they were there in that shebeen. They all ran away. ADV BOSMAN Right. MS LOONAT You were saying something about going to a shop on your way back home. Please carry on. MR NKWANYANA When I arrived at the shop, I found Ketha and Prescott Langa and Simunye Mthembu. Next to that shop there is a house that belonged to Mthembu family. I took one guy from Mthembu's family because they were also attacked, or his family had been attacked and I told him to accompany me. We went to another house and we found my sister and the daughter-in-law of the Mthembu family. I greeted them. MS LOONAT And what was your sister's name? MR NKWANYANA Olive Nkwanyana. MS LOONAT What was your discussion with her? MR NKWANYANA I greeted her and I asked her if my brother-in-law was present and also asked him if he was well. MS LOONAT Who is your brother-in-law? MR NKWANYANA Armand Sibiya. MS LOONAT That's the deceased, is that correct? MR NKWANYANA No. MS LOONAT Oh, I beg your pardon. Who is Armand Sibiya, he's Olive's husband, is that correct? MR NKWANYANA Yes, that's correct. MS LOONAT And what do you know about Sibiya's political activities? MR NKWANYANA He was once a councillor in the area after the one who was elected as a councillor had left. MS LOONAT Which party? MR NKWANYANA IFP. MS LOONAT What was your relationship with him? MR NKWANYANA We had a good relationship. MS LOONAT In spite of the fact that you belonged to the ANC and he belongs to the IFP, is that correct? MR NKWANYANA Yes, that's correct. MS LOONAT Was he an active member of the IFP, would you say? MR NKWANYANA Yes. MS LOONAT So you maintained a relationship with him because of your sister being his fiance, is that correct? MR NKWANYANA Yes, that's correct. MS LOONAT Please go on from there. What did you do thereafter? MR NKWANYANA Even though I do not remember quite well but Olive and myself, we talked and also the other lady who was with her, we talked with her and she was asking us about the situation in the area where we were staying. Then we left the place. Just before we arrived in the shop I decided not to go inside the shop because I realised that I didn't have enough money and then I told the guy I was with that he will tell them that I went to Ma Dlamini's house, or Mrs Dlamini's house. MS LOONAT Tell who? You said tell them, who's them? MR NKWANYANA Ketha, Prescott and Themba Nkosi. MS LOONAT Did you know what Ketha and Prescott were doing that day in the shop? MR NKWANYANA They were drinking cooldrink. MS LOONAT Were you aware that they were going to attack Mr Sibiya on that day? MR NKWANYANA I would like to put it this way, that usually in meetings, their names will come out as people who were harassing the community, or people whom the community didn't like but on that specific day I didn't know that they were going to attack. MS LOONAT Mr Nkwanyana, have you taken part in any actual faction fighting between the IFP/ANC parties? MR NKWANYANA Yes. MS LOONAT How many roughly? A few, a lot, can you remember? MR NKWANYANA I would say twice, but in both occasions whenever we had planned to launch an attack, we will arrive there after the people have been told by other people that we were coming to attack them. MS LOONAT So what you're saying is that in fact you did take part in these attacks but you were not successful because the people were pre-warned, is that correct? MR NKWANYANA Yes, that's correct. MS LOONAT So if you were given instructions to take part, you would have taken part in any faction fighting, is that correct, between IFP and ANC? MR NKWANYANA Yes, that's correct. MS LOONAT Do you have any previous convictions? CHAIRPERSON How's that going to help us, Ms Loonat? MS LOONAT I'll withdraw that Mr Chairperson, thank you. You did say that you had no training in firearms, is that correct? MR NKWANYANA Yes, that's correct. MS LOONAT So what was your role when you were instructed to take part in any of the attacks on IFP areas? What was your role? What were your instructions? MR NKWANYANA When people are attacking, they are not using firearms only. I will use anything, a spear or a knife. MS LOONAT To do what? MR NKWANYANA To attack and kill whoever will come my way. ADV BOSMAN Where is this question taking us Ms Loonat? MR NKWANYANA It's just to establish that he is an active member of a political party. He does take part, when he was instructed to, but on this particular occasion he was not a party to it, which is why he's applying for amnesty. ADV BOSMAN Okay, thank you. MS LOONAT Is there anything else you would like to add, Mr Nkwanyana? MR NKWANYANA No, I don't have anything to say. MS LOONAT I have no further question. NO FURTHER QUESTIONS BY MS LOONAT CHAIRPERSON Thank you Ms Loonat. Mr Nkwanyana, just look at page 5 of the record, paragraph 9 (c) (i). Who is Iliakem Nkosi Mthembu, who is that? MR NKWANYANA I think it's the deceased. CHAIRPERSON You think he's deceased. CHAIRPERSON Now under what circumstances did he die? MR NKWANYANA He was attacked. CHAIRPERSON To what political party did he belong? MR NKWANYANA IFP. ADV BOSMAN Did you know him personally? MR NKWANYANA Yes, I knew him because sometimes I'll meet him at my brother-in-law's house. CHAIRPERSON Now who attacked him? MR NKWANYANA I was told that he was attacked by Ketha Khuzwayo, Themba Nkosi Mthembu. CHAIRPERSON So have you not witnessed this attack? MR NKWANYANA No, I didn't. CHAIRPERSON Did you just hear about it? MR NKWANYANA Yes. CHAIRPERSON Why did you put his name in this form? MR NKWANYANA It is because he's the one who died when this attack was launched. CHAIRPERSON Yes, but what has it got to do with you? Why do you put his name in your application form for amnesty? MR NKWANYANA This was done by people whom I knew very well and we came together, but on this specific day when they did this, I wasn't with them. CHAIRPERSON Yes, no, that is what you say. I hear what you say about that but now why's his name in here? What has he got to do with your amnesty application? MR NKWANYANA Because I was sentenced and convicted because of his death. CHAIRPERSON So at the court that convicted and sentenced you, did the witness come there to say that you participated in this attack on this man? MR NKWANYANA Yes, they were. CHAIRPERSON And what is your response to that allegation? MR NKWANYANA I would like you to repeat the question for me. CHAIRPERSON The witnesses at your trial, you say that those witnesses came to the court and they told the court that you took part in this, you participated in this attack on the deceased, Mr Mthembu, that's what you told us now. I'm asking you, what is your response to that allegation against you? They say that you participated in this attack, so what do you say to that? MR NKWANYANA What I can say is that the people who attacked and killed him, were the people who were usually with me and these people, the witnesses, they've seen me with these people, I think that's why they witnessed that I was one of the people who attacked the deceased. CHAIRPERSON And are you saying that they're wrong if they say that you attacked the deceased? MR NKWANYANA Yes. CHAIRPERSON And this other name, underneath that one, in that same place on that form, Herman Sibiya and there's written in brackets (injured). Now who's that? MR NKWANYANA My brother-in-law. CHAIRPERSON Is that your sister's husband, or boy friend, or whatever? MR NKWANYANA Yes, my sister's husband. CHAIRPERSON And why is his name here in your form? MR NKWANYANA Same reason that I've already mentioned that the witnesses mentioned my name that I was together with my friends when they launched the attack because this was same case, it happened in one day, same time. CHAIRPERSON So Mthembu and Sibiya were attacked at the same time? MR NKWANYANA Yes. CHAIRPERSON So you were also not part of that attack? MR NKWANYANA Yes. CHAIRPERSON And those witnesses are wrong again, that came to the court to say that you were in fact part of that attack? MR NKWANYANA Yes. CHAIRPERSON Yes. Ms Jelal, have you got any questions? MS JELAL Just one, Mr Chairperson. CROSS-EXAMINATION BY MS JELAL Sir, is it correct that your submissions to this Committee is that you knew nothing of the planned attack against Sibiya and Mthembu and that you had nothing to do with the occurrences of that day being the 3rd of May 1994? MR NKWANYANA Yes, but what I can say is that usually I would attend meetings, then I will hear about their names coming up as names of the people who were their targets or people whom they wanted attack them, but when I arrived there on that day, I didn't know that they were going to attack them. MS JELAL So did you join the party who you believe did attack Sibiya and Mthembu and did you participate in this attack? MR NKWANYANA Would you please repeat your question? MS JELAL Yes. Did you know of the attack? Did you participate in the attack? Did you join the group of people whom you believe did attack Sibiya and Mthembu? MR NKWANYANA If I were instructed to do so, I would have, but I wasn't and there I didn't know anything about it, therefore I didn't join them. MS JELAL No further questions. NO FURTHER QUESTIONS BY MS JELAL ADV SANDI Sorry, can you just explain something here, Mr Nkwanyana. When you heard that the deceased and Mr Sibiya had been attacked, did you agree with that? Did you feel that your comrades had done the correct thing? MR NKWANYANA Yes. ADV SANDI Did you complete this form yourself, the application form? MR NKWANYANA I didn't myself, but I was telling someone who was helping me, he was the one who was writing. ADV SANDI Why did you ask someone to complete this form in your name and for you? MR NKWANYANA When I arrived in Westville Prison, I found the amnesty application forms and they were written in English. There were no Zulu application forms at the time, therefore since I had an English application, I had to ask someone to assist me. ADV SANDI Is that to say that you were applying for amnesty? MR NKWANYANA Yes. ADV SANDI Just try and give me a picture in mind of this area where this attack took place. You say you were at the shebeen when you heard two shots, how far was the shebeen from the place where the attack had taken place? MR NKWANYANA I wouldn't be able to assist you with that but it is not that far. It can be a kilometre or more. ADV SANDI Would you say it is the same street or an adjacent street, parallel street? Is it more or less the same area, same location? MR NKWANYANA It is the same area. ADV SANDI Thank you. Thank you Chairman. CHAIRPERSON Mr Nkwanyana, just look again at that page 5 of this bundle. I referred you to that earlier but I haven't asked you to explain it yet. That on top of page 5 of the record, the bundle, that last sentence there, or that last phrase,: "That is when I committed crime". What crime are you talking about? ADV SANDI Maybe it's the person who was assisting me who didn't put correct words. What I was trying to say is that that's where the crime was committed. CHAIRPERSON By others and not by yourself, is that what you explained to him? ADV SANDI Yes. CHAIRPERSON Yes. Mr Mapoma, questions? MR MAPOMA Thank you Chairperson. CROSS-EXAMINATION BY MR MAPOMA Mr Nkwanyana, you said that in meetings the names of Mr Sibiya and Mr Mthembu used to feature. What were those meetings all about? MR NKWANYANA ANC meetings which we used to hold over the weekends and sometimes on Saturdays and sometimes on Wednesdays. MR MAPOMA You have said that there was conflict between the ANC and IFP, was this conflict discussed in those meetings? MR NKWANYANA Yes. MR MAPOMA And in those meetings were there some attacks that had to be launched by the ANC, discussed in some of those meetings? MR NKWANYANA Yes, sometimes. MR MAPOMA Now you have said that on some occasions you yourself used to participate in attacking the IFP, is that correct? MR NKWANYANA Yes, that's correct. MR MAPOMA And those attacks that you yourself used to participate in, were there some of those attacks discussed in the ANC meetings? MR NKWANYANA Yes, sometimes. MR MAPOMA So on this day when Sibiya and Mthembu attacked, you say you were not party to those who attacked there? You were not involved physically, do I understand you correctly? MR NKWANYANA Yes. MR MAPOMA When the discussions were entered into in the meeting and when their names featured in those discussions before the attack, was there some resolution that they have to be attacked at some point or another in your presence? MR NKWANYANA Yes, I heard about this once because these were the people whom we all knew that they were a problem to us but as to when they were going to be attacked and how they were going to be attacked, I was never told and I was never in such a meeting. MR MAPOMA Now, those who attacked there, did you regard them as having carried the resolutions of the ANC by attacking Sibiya and Mthembu? MR NKWANYANA Yes. MR MAPOMA Now, do you regard yourself as having anything to blame yourself about, or on the death of Sibiya and Mthembu? Is there something that you yourself find yourself guilty of regarding the death of those two gentlemen? MR NKWANYANA Yes and also because that I was sentenced because of this crime and it was partly because I knew all along that there was a possibility that they were going to be attacked, even though I didn't know exactly when. MR MAPOMA Now had you known that they were going to be attacked, were you going to be participating in that attack? MR NKWANYANA Yes, I was going to participate in that attack but there was a problem, because my comrades didn't trust me very well when it comes to Sibiya's issues, because sometimes I would go to Sibiya's house and this was sort of betraying their trust. I think the reason they didn't reveal this to me, or they didn't tell me of this planned attack, it was because they were scared that I may betray them. They were scared that I was going to tell Sibiya, but this is what I'm thinking, I'm not sure. MR MAPOMA Thank you Mr Nkwanyana. Thank you Chairperson, I've got no further questions. NO FURTHER QUESTIONS BY MR MAPOMA CHAIRPERSON Thank you Mr Mapoma. Are there any questions from the Panel? ADV BOSMAN No questions from me. CHAIRPERSON Have you got any re-examination, Ms Loonat. MS LOONAT No Mr Chairperson, thank you. CHAIRPERSON Yes, Mr Nkwanyana, you're excused, thank you. WITNESS EXCUSED CHAIRPERSON Yes, Ms Loonat, who's the next applicant? MS LOONAT Mr Chairperson, I'm representing Mr K M Khuzwayo. CHAIRPERSON Thank you.