amntrans AMNESTY HEARINGS 2000-03-29 PINETOWN 3 THAMSANA GIELA NJIYELA AM7386/97 https://sabctrc.saha.org.za/hearing.php?id=54114&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/2000/200329pi.htm CHAIRPERSON We'll now proceed with the application of Mr Njiyela, application number 7386/97. For the sake of the record, the Panel remains to be myself, Chris de Jager, Adv Sigodi and Adv Bosman SC. Could the representatives please put themselves on record. MR WEBSTER Mr Chairman and Members of the Commission, I represent the applicant. The name is George Webster. MS MTANGA I am Lula Mtanga, the Evidence Leader for the Truth Commission. Thank you, Chairperson. CHAIRPERSON Will the applicant be giving evidence in Afrikaans or English? In which language, Afrikaans, English, Zulu, whatever? MR WEBSTER He will be speaking in Zulu. CHAIRPERSON Could you kindly rise. ADV SIGODI Give us your full names. THAMSANA GIELA TEMBE (sworn states) CHAIRPERSON Yes, Mr Webster. MS MTANGA Chairperson, before my learned friend commences, can I just make an announcement regarding the victims. We have here Mr Nyathikazi, in whose house the attack took place. He has attended. The two people, Mr Ndwandwe who was killed in this incident and the next-of-kin of Mr Sithole who was - sorry, Mr Sithole and the next-of-kin of Mr Ndwandwe, could not be located. We were told they live in some remote area in KwaZulu Natal and two advertisements came out. The first one was on the 1st of March, the second one on the 10th of March in ...(indistinct) in Natal. We called upon them to contact us and we never received any contact from them. And further we made two announcements on O Kozi FM(?), to announce it to them. Till this day no-one has contacted us. But Mr Nyathikazi is here. CHAIRPERSON And he couldn't assist us in tracing them either? MS MTANGA No, he could not, Chairperson. CHAIRPERSON Thank you. Yes, Mr Webster. EXAMINATION BY MR WEBSTER Mr Njiyela, is it correct that you are the applicant in this matter? MR NJIYELA Yes, that's correct. MR WEBSTER Where are you presently residing? MR NJIYELA In Zimkhulu. MR WEBSTER Are you a member of any political party? MR NJIYELA Yes, I am. MR WEBSTER Of which party? MR NJIYELA ANC. MR WEBSTER Since when? MR NJIYELA From 1990. MR WEBSTER How did you become a member? MR NJIYELA Because of the situation I had a desire to become a member of the ANC. MR WEBSTER And you say you then joined the organisation? MR NJIYELA Yes. MR WEBSTER How did you join the organisation? MR NJIYELA I became a card-carrying member. MR WEBSTER Where was this where you applied for membership and got a card? CHAIRPERSON I don't think it's disputed so far, if it's disputed you can give us more details later on, but if it's not disputed we'll accept it. MR WEBSTER Thank you, Mr Chairman. Can you briefly tell us what the situation was in about 1990, when you joined the ANC? I'm talking politically. MR NJIYELA It was the time when violence was rife in various locations or townships. MR WEBSTER And do you know whether the fighting was between organisations or just mere individuals? MR NJIYELA I do know that it was because of political reasons. MR WEBSTER And which organisations were involved in these fights? MR NJIYELA It was IFP and ANC. MR WEBSTER I want to take you to 1991. Where were you during 1991? MR NJIYELA I was staying in a place called Ogies, in a township called Paula. MR WEBSTER Whereabout in the country is this township called Paula? MR NJIYELA Mpumalanga province. MR WEBSTER What were you doing there? MR NJIYELA I was working there in a power station. MR WEBSTER And what were your duties? MR NJIYELA I was a driver, I was taking passengers to work and from work back home. MR WEBSTER Can you tell the Commission what hours you worked. MR NJIYELA Yes, I can. MR WEBSTER Please do. MR NJIYELA ...(no English interpretation) MR WEBSTER With regard to the incident that you have applied for amnesty, can you tell the Commission what led to this incident. Just give us the background. MR NJIYELA This incident occurred in 1991, I think it was between June and July. There is a place where people are staying ...(intervention) CHAIRPERSON Is it common cause that it happened on the 13th of October 1991? MR WEBSTER It is common cause, Mr Chairperson. CHAIRPERSON And before we proceed, could you kindly tell us exactly for what he is applying. MR WEBSTER It's an application for amnesty. CHAIRPERSON Yes, for amnesty, I agree with that, but in regard to what - what's the offence he's applying for? MR WEBSTER Well it would be murder and assault GBH. CHAIRPERSON Murder and assault GBH, or attempted murder. MR WEBSTER Attempted murder, yes. CHAIRPERSON Yes, and what else? MR WEBSTER And I also would - well, to the extent that possession of firearms could be imputed because of the knowledge which he had of the people who executed the attack, to that extent of his conduct being ...(intervention) CHAIRPERSON Explosives, that sort of thing? MR WEBSTER Explosives and firearms. CHAIRPERSON And damage to property? MR WEBSTER And damage to the property of the owner of the house that was attacked. CHAIRPERSON Thank you. MR WEBSTER Thank you. Now can you give us the background which led to the incident. MR NJIYELA Okay. As I've already mentioned, there is a compound in that mine where people are staying and there's a kitchen there where we usually go for meals. One day one man went there and then he was going to have a meal and then they started - others in that kitchen started assaulting him and as they were assaulting him they were singing IFP songs or slogans. MR WEBSTER Yes, please continue. MR NJIYELA Okay. They gathered in a block called Block G, and the comrades gathered in a hall. I do not remember how many days, but I think three days. MR WEBSTER And over these three days, what was happening? MR NJIYELA The comrades were staying in a hall and then the IFP members were in Block G. The situation was very tense but it was before people started fighting. MR WEBSTER Now you say on the third day an incident took place. MR NJIYELA Yes. MR WEBSTER Before you deal with the incident itself, can you tell the Commission whether the tension was merely at the compound or whether it existed beyond the confines of the compound. MR NJIYELA Even outside because the townships were engulfed by violence, IFP and ANC were fighting. MR WEBSTER And had there been fighting in the township where you were residing? MR NJIYELA It only started after the compound where we were residing started fighting. MR WEBSTER Can you tell us then what happened on that evening in particular. MR NJIYELA On that day I was going to work in the evening and my responsibilities were to take the people who just knocked off from work and take them back to the township and then come back to report on duty. CHAIRPERSON Excuse me a minute, Mr Webster. Could the interleading door perhaps be opened because I think the airconditioning system is working and perhaps we could have the benefit of some of the fresh air coming in. Thank you, you can proceed. MR WEBSTER Thank you, Mr Chairperson. So you say you were doing the evening shift, which started at what time? MR NJIYELA At eleven. MR WEBSTER And you say you went on duty, and then what happened? MR NJIYELA As I was approaching the firm, I could see lights like ambulance lights and somebody told me that people are fighting at the compound and people had been injured and he also said some of them they are here and I saw them and they explained to me that as they were sitting in that hall, they heard gunfire. MR WEBSTER And then what happened when they heard the gunfire? MR NJIYELA They started running. Some of them ran towards the firm and some of them ran towards the bush nearby. MR WEBSTER Do you know the names of the people who were injured? MR NJIYELA There was one Dlamini, and Gabriel Gametse was killed. MR WEBSTER Do you know whether they were aligned with any political party? MR NJIYELA ANC members. MR WEBSTER And then what happened after this incident of the shooting? CHAIRPERSON Sorry, was Dlamini injured and Gabriel was killed or were both of them killed? MR NJIYELA Farrington and Gabriel were killed, Dlamini was injured. CHAIRPERSON Thank you. MR WEBSTER And after this incident were there any meetings held? MR NJIYELA Yes. MR WEBSTER Can you tell the Commission where these meetings were held. MR NJIYELA From that day, members of the ANC left the compound, some went to the farms and some went to the township. We held our meetings in a forest or bush and sometimes in areas where we thought it was safe. And later a certain man was shot at. He was also a comrade. After he was shot and injured we held another meeting in a highveld hostel in Witbank. In that meeting we took a decision that we were supposed to arm ourselves. We agreed that each and every one was going to contribute R50 in order for us to obtain arms. We contributed that money. We tried to get firearms. We got those firearms. MR WEBSTER Where were they procured from? MR NJIYELA Vereeniging in Sebokeng. MR WEBSTER And once the firearms had been procured, what happened? MR NJIYELA Before anything happened - at this time we were not residing in our places because we were scared. Now this was the time where we were residing in the forest and police used to come to the area. MR WEBSTER Please proceed. MR NJIYELA I decided in the next meeting to tell the comrades that I was going to give them the house which I was residing in and they were going to use that house as a safehouse. MR WEBSTER And at what time was a meeting to be held, do you know? MR NJIYELA At 8 o'clock in the evening. MR WEBSTER And where were you during that time? MR NJIYELA I was at work at that time. MR WEBSTER Yes, and then what happened? So you were at work, what happened? MR NJIYELA When I went to fetch the nighshit people I decided to go to my home first to fetch a jacket because it was cold and when I arrived there they were still in a meeting. They told me that they took the decision that we were supposed to launch an attack. MR WEBSTER And who or what would be attacked? MR NJIYELA Yes. MR WEBSTER Who was going to be attacked? MR NJIYELA Chairman's house, IFP member. MR WEBSTER Do you know his surname? MR NJIYELA Yes, I do. MR WEBSTER Which is? MR NJIYELA Nyathikazi. MR WEBSTER How did you know he was a Chairman of the IFP? MR NJIYELA I knew that because usually meetings were held at his place and other IFP members who were not residents in the area, used to come to his house. MR WEBSTER Yes, what else? MR NJIYELA And also when they were patrolling at night they were using the school vehicle which belonged to the school, and he was the principal in that school and also, we worked together, I knew this. MR WEBSTER And you say that before the friction and before these unpleasant incidents the respective, or people from the respective parties used to talk about such things. MR NJIYELA Yes, because we were working together with the people we were fighting with in one firm. MR WEBSTER Now you were then told that a decision had been taken that the residents of Mr Nyathikazi would be attacked. MR NJIYELA Yes. MR WEBSTER Were you told how this attack was going to be launched? MR NJIYELA That we were going to use firearms and handgrenades. They also requested me to take them with the kombi which I was driving and drive them, because it was about 300 to 400 metres from my place to Nyathikazi's place. CHAIRPERSON Sorry Mr Webster, to interrupt. Your client made an affidavit and a typed version appears from pages 19 to 24. MR WEBSTER That's correct, Chairperson. CHAIRPERSON Is he in agreement with this statement? Could it be confirmed and could we use it as evidence? Then we could perhaps shorten the proceedings. MR WEBSTER I'm grateful for that, Mr Chairperson. He has confirmed the contents, I will probably just fill in here and there. CHAIRPERSON Here and there. Thanks. MR WEBSTER I feel a little bit of detail might be necessary. CHAIRPERSON Yes, because we're now at the real scene of the attack. MR WEBSTER That is quite correct. CHAIRPERSON Right, thank you. MR WEBSTER Mr Njiyela, is correct that you deposed to an affidavit which was taken by hand? Do you recall that? At Kokstad on the 22nd of January 2000. I'll just show you that document. MR NJIYELA Yes, I do remember. MR WEBSTER And do you recall that this morning I showed you a typed document which is also in the bundle, which we went through and which you confirmed as actually being the verbatim typed transcript of the affidavit which you signed? MR NJIYELA Yes. MR WEBSTER And you confirm the contents and you wish to adopt the allegations made therein, as part of your evidence before the Commission? MR NJIYELA Yes. CHAIRPERSON I think we're now round about paragraph 27. MR WEBSTER That is so, thank you Chairperson. And you then say you conveyed various people whom you have mentioned in paragraph 30, to the point where you say they alighted from the kombi and then whilst you were proceeding on your duties you heard explosions and loud bangs, is that correct? MR NJIYELA Yes, that's correct. MR WEBSTER Now you also state that you were arrested at some stage. MR NJIYELA Yes. MR WEBSTER Can you just tell the Commission how it came about that you were arrested. CHAIRPERSON Yes, could we have it - only clarity on this. Your only participation in this operation was that you transported people for about 400 metres to the scene where the explosions took place and where they damaged the property of Mr Nyathikazi? MR NJIYELA Yes. CHAIRPERSON You didn't yourself play any role in the explosions? In setting the explosives for instance. MR NJIYELA No, I didn't. CHAIRPERSON But you were aware that you were conveying weapons and that the purpose was to damage the property of Mr Nyathikazi? MR NJIYELA Yes, I knew that. CHAIRPERSON And you associated yourself with that? MR NJIYELA Yes, I do. CHAIRPERSON Did you foresee that people could be killed or injured? MR NJIYELA Yes. CHAIRPERSON And what did you think would you achieve by this attack? MR NJIYELA At that time we were fighting. The ANC was not supporting the government and the IFP seemed to support that government, therefore we had hoped that if we defeated the IFP, we will defeat that government. And the person who was ruling didn't care about us. CHAIRPERSON Yes Mr Webster, is there anything more that you would like to add? MR WEBSTER Nothing which would be relevant in the application itself, save, Mr Chairperson and Members of the Commission, the applicant had intimated a desire to express his remorse to the members of the families and to Mr Nyathikazi, whose property was damaged. CHAIRPERSON Well let him proceed doing so. MR WEBSTER You also had intimated during out consultation, Mr Njiyela, that you had wished to express certain sentiments to Mr Nyathikazi and to the members of the families of the victims of that attack. MR NJIYELA It is so. MR WEBSTER Will you proceed to do so. MR NJIYELA I would like to explain that at that time we were fighting and if one was not fighting the possibility was that you were going to be killed or you were going to be attacked. I feel a great remorse because later I learnt that an old woman got injured. In fact this hurt me immediately when learnt about it. And also, I would say I feel very sorry for the people who were killed in that incident, but because of the situation at the time there was no other way out, the only way to protect yourself was to attack. MR WEBSTER Thank you, Chairperson and Members of the Commission, that will be the evidence. NO FURTHER QUESTIONS BY MR WEBSTER CHAIRPERSON Any questions? MS MTANGA I have no questions, Chairperson, but I would like to be given an opportunity to consult with Mr Nyathikazi. CHAIRPERSON Mr Nyathikazi, could you come forward please. On behalf of the Panel, we're always glad to welcome victims at hearings and as it's part of the process that we would like to enhance reconciliation, we would like even victims and perpetrators in circumstances to meet each other and see whether they could come to an agreement. I know you haven't had the time now to consult and we're now going to adjourn until ten minutes to two, in order to give you an opportunity to consult with the Evidence Leader, and we'll resume at ten minutes to two and hopefully at that stage you would have had the opportunity to fully tell the Evidence Leader what your attitude in this matter is. Thank you. We're adjourning until ten to two. COMMITTEE ADJOURNS ON RESUMPTION GIELA THAMSANA NJIYELA (s.u.o.) CROSS-EXAMINATION BY MS MTANGA Thank you, Chairperson. Arising out of my consultation with Mr Nyathikazi, I have a few questions to put to Mr Njiyela. Mr Njiyela, I would like to know from you who told you that Mr Nyathikazi was the Chairperson of the IFP? How did you find out he was an IFP Chairperson? MR NJIYELA As a person who resided in the township I knew many IFP members in the township, so that's how I knew. MS MTANGA Did you personally know Mr Nyathikazi, or he is someone you've heard about? MR NJIYELA Yes, I knew him very well. MS MTANGA Would you be able to give us instances where perhaps you had seen him acting, probably in a meeting or IFP meeting, where you assumed that he was a person holding a leadership position as you allege? Or is it just what you heard from people? MR NJIYELA We were never at one meeting together, but people like Bongani Sithole and Victor Sibiya who were my friends and they were members of the IFP, they did tell me about his position. MS MTANGA I would like you to again give us the reasons as to why his house was attacked by your group on that day. What were the reasons? MR NJIYELA It was discovered that the people who attacked the hostel would stop by his house and moreover there were people who kept guard at his home. MS MTANGA Do you know a person, Alfeus Sandile Zulu? MR NJIYELA No. MS MTANGA In your evidence you testified that the tension that occurred in the hostel, spilt onto the nearby township, that is Ogies or Paula township, and as a result there was further conflict in the township between the IFP and the ANC. Am I correct to state this? MR NJIYELA That's correct. MS MTANGA I want to put it to you firstly that Mr Nyathikazi is saying that he was never a Chairperson of the IFP at the time of this incident, the Chairperson was Mr Alfeus Sandile Zulu. What do you say to this? MR NJIYELA I do not know Mr Zulu, I only know Mr Nyathikazi. MS MTANGA The meetings that you mentioned that took place at Mr Nyathikazi's house, is it meetings or you just saw people who go or were frequenting his house, what is the position? Did you see meetings taking place or did you see IFP people frequenting his house? MR NJIYELA I would put it this way, some of my neighbours who would attend such meetings would tell us, inform us of the discussions that they'd held at Mr Nyathikazi's home. At other instances they would even come and warn us not to sleep at our homes because of the discussions that had been held at Mr Nyathikazi's home. That is why I am certain of the fact that he was the Chairperson. MS MTANGA I wish to put it to you, Mr Njiyela, that Mr Nyathikazi is saying that no meetings ever took place at his house, the people who went to his house, most of them were IFP members, he agrees, but they were never there for meetings, they were just people visiting his house because he was also an IFP member. What do you say to this? MR NJIYELA As I've already mentioned, they would come visit their relatives who were my neighbours and this information about the meetings that were held at Mr Nyathikazi, would be revealed by those very same people who had been at those meetings, and that is how we also got to learn about what was going to take place and sometimes they even warned us. MS MTANGA Mr Nyathikazi also wishes to put to you that during the conflict in the hostel, he admits that some of the IFP people from the hostel were visiting his house but they were just visitors, not people who were there as IFP members, and that as far as he knows there was never a conflict between the IFP and the ANC in the township. In Paula township. MR NJIYELA I dispute that. MS MTANGA As a result of this absence of conflict he does not understand the basis for your group attacking his house because he was not involved in any conflict with anyone at that time. What do you say to that? MR NJIYELA As a person who resided (corrupt file) about, but the incidents where this conflict took place in the township is totally unknown to Mr Nyathikazi. That's his position. MR NJIYELA I would not pursue the matter if he says he doesn't know about it. MS MTANGA Just to emphasise the point, Mr Njiyela, Mr Nyathikazi would like you to know that he's adamant that there was no such conflict in the township, and even this Mr Magaxa you're referring to, it's not an incident known in the township, that there was a Magaxa who was killed by the IFP. No-one knows of that and it was never recorded even in the police dockets or in the police books. It was never reported. What do you say to this? MR NJIYELA The police who arrested me were aware of that incident. MS MTANGA I have no further questions, Chairperson. NO FURTHER QUESTIONS BY MS MTANGA CHAIRPERSON Thank you. Any re-examination? MR WEBSTER I have no re-examination. NO RE-EXAMINATION BY MR WEBSTER CHAIRPERSON Thank you. Any further evidence? Sorry, Members of the Panel, any questions? ADV BOSMAN I have not questions, Chairperson. ADV SIGODI I have no questions. CHAIRPERSON Thank you. Would that be the evidence in this matter? MS MTANGA No further evidence, Chairperson. CHAIRPERSON So he wouldn't give evidence himself? MS MTANGA No, Chairperson, he's satisfied with the questions that we've put to the applicant. CHAIRPERSON Right, thank you. WITNESS EXCUSED CHAIRPERSON Argument? MR WEBSTER IN ARGUMENT Chairperson, Members of the Commission, it is my submission that the applicant in this matter has established - or before he's established, my submission is that he has made a full disclosure, the manner in which he testified, his whole demeanour and the consistency between the evidence that has been adduced today, read against the, or viewed against the affidavit that he made. I submit that in these circumstances you find that there has been full disclosure. It's also our submission that his actions had a political objective, that as a member of the ANC I think it is common cause that there was wide conflict in our country particularly between the two organisations. That conflict we know engulfed virtually the entire KwaZulu Natal and the then Transvaal, particularly as at the time of the occurrence, which was before 1994. And I think we can also take cognisance of the fact that this was an ...(indistinct) violence which persisted even after the elections in 1994, and has only come to an end recently. CHAIRPERSON But was it in fact a conflict between political parties or was it more a ethnic conflict between the Xhosa-speaking people and the Zulu-speaking people? MR WEBSTER Chairperson, I would argue that it was actually more of a political conflict. CHAIRPERSON Yes, even if it was sort-of at that stage based on the languages, but it was political fact that those groups supported predominantly the one party and the other predominantly the other party, isn't that so? MR WEBSTER I agree with that, and I would also add the that in Natal itself, where we had virtually 99% of the African people being Zulu-speaking, there was still this very long period over which there was this violence, which then as an indication, as you've indicated Chairperson, that it might have been along tribal lines but definitely political. And lastly, the applicant gained nothing out of this entire incident. We do concede, as we always do with hindsight and in the comforts of an environment in which we find ourselves, that people could have behaved and reacted differently then. But I submit that the fact that the applicant has come forward when there is no intimation or indication that there's any criminal matter being pursued against him, should be viewed as an indication of a person who is motivated genuinely and for honest reasons to approach this Commission for amnesty. And lastly, I know that it might be difficult for Mr Nyathikazi to accept the apology, but it is tendered with sincerity. Thank you, Chairperson and Members of the Commission. CHAIRPERSON Thank you. Anything? MS MTANGA IN ARGUMENT Thank you, Chairperson. I have been instructed by Mr Nyathikazi to oppose this application on the grounds that the applicant has not given a full disclosure. This is more-so in regard to the background that there was a conflict between the ANC ... in the township that resulted in Mr Nyathikazi's house being attacked. The fact that the applicant gave false evidence that there were meetings being held at Mr Nyathikazi's house, this is adamantly denied by the victim. I've been instructed to persuade the Committee to not grant amnesty to Mr Njiyela on this basis. ADV BOSMAN Ms Mtanga, if we assumed for argument's sake, that Mr Nyathikazi was not the Chairman of the IFP and the applicant and his comrades believed that he was because they saw IFP people frequenting his house, in law would that make any difference? MS MTANGA Chairperson, I would concede that it would - it wouldn't make a difference in the case of the applicant if that's what they perceived to be the situation, but in respect of my client, Mr Nyathikazi, it's a situation - because of the seriousness of the offence which we're talking about here, an attack on the whole house where there would have been people, his family, maybe there would have been a need for the applicant's group to do a thorough investigation before they carried out such offences. But then that is difficult to put as a fact because the applicant has testified that they didn't attack the house because he was a Chairperson, they attacked the house because it was frequented by people they thought to be IFP. ADV BOSMAN Thank you. CHAIRPERSON Thank you. ADV SIGODI Sorry Ms Mtanga, in this bundle we've got an affidavit from the victim and he has, on page 30, paragraph 12, estimated the damage caused by the explosion and gunshots to be about R20 000. Does he perhaps have any quotes or receipts to prove that this is the amount of damage that he sustained as a result of this? MS MTANGA Chairperson, I raised that with him, he just confirmed the value of the damages, but if I may be allowed to confer with him as to whether he's got any vouchers or quotations for that? Chairperson, Mr Nyathikazi says he can forward us proof, quotations that he obtained after the damages. CHAIRPERSON Thank you. Would you then arrange with him to send something through to you? It need not be the originals, he could send through photostats too. MS MTANGA I will do so, Chairperson. CHAIRPERSON Thank you. You're excused. WITNESS EXCUSED