amntrans AMNESTY HEARINGS 2000-05-26 PINETOWN 5 FRANCIS DIKISI MEYIWA AM4505/96 MURDER OF MR LEMBEDE https://sabctrc.saha.org.za/hearing.php?id=54231&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/2000/200526pi.htm CHAIRPERSON Yes Mr Meyiwa, Good morning. Will you stand please? Are you Francis Dikisi Meyiwa? MR MEYIWA That's correct. FRANCIS DIKISI MEYIWA (sworn states) CHAIRPERSON Ms Mohammed. MS MOHAMMED Thank you Mr Chairman. EXAMINATION BY MS MOHAMMED Mr Meyiwa, I'm going to show you your application form which forms part of the bundle of documents that is before us today from pages 60 to 69, as your original - sorry, it's a copy of your Zulu application form. Do you confirm that? CHAIRPERSON ... (indistinct - mike not on) MS MOHAMMED Yes, Mr Chair. MR MEYIWA Yes, it is. MS MOHAMMED And pages 53 to 59 is the English translation of that application? MR MEYIWA Yes. MS MOHAMMED And from page 70, pages 70 and 71 is in fact an English translation of a Zulu letter which appears from pages 72 to 74? MR MEYIWA Yes. MS MOHAMMED Okay. I'm going to take you now to pages 6 to 10 of the additional bundle. This actually reflects an affidavit which was drafted on your instructions when an attorney from our offices called at you in Westville Prison in April. Pages 6 to 10 of the additional bundle. MR MEYIWA Yes, it is. MS MOHAMMED Now Mr Meyiwa you were seated in Court when the other applicants, the two Mr Nyawuzas and Mr Ndimande gave evidence, isn't that correct? MR MEYIWA Which Court are you referring to? MS MOHAMMED This Court, yesterday when they gave evidence, you were seated in Court when they were speaking to the Committee. MR MEYIWA Yes, I was. MS MOHAMMED Okay, now you heard their versions on the incident which occurred and do you confirm the correctness of that version? MR MEYIWA Yes, I do. MS MOHAMMED Can you just tell the Committee what you have been convicted of? MR MEYIWA It is murder and attempted robbery. MS MOHAMMED And how many years sentence are you serving at Westville Prison? MR MEYIWA 15 years imprisonment. MS MOHAMMED Thank you Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MS MOHAMMED MR PANDAY No questions Mr Chairman, sorry. NO QUESTIONS BY MR PANDAY MS REDDY Thank you Mr Chairperson. CROSS-EXAMINATION BY MS REDDY Can you tell me which political organisation you belonged to in 1991? MR MEYIWA The SACP. MS REDDY Was that a branch of the ANC? MR MEYIWA Yes. MS REDDY What position ...(intervention) ADV SANDI Did he say SACP, a branch of the ANC? MS REDDY Member, I actually asked him whether it was a branch of the ANC. MR MEYIWA It was an organisation affiliated to the ANC. MS REDDY What position you held at that organisation? MR MEYIWA I was in the Peace Committee in my area. MS REDDY Do you have a membership card to prove your affiliation? MR MEYIWA Yes, I do. MS REDDY Where is your membership card? MR MEYIWA I have it with me. MR PANDAY Could the Committee have sight of that? CHAIRPERSON This was issued in May 1993. MR MEYIWA I last renewed my membership in 1993. MS REDDY How long were you a member of that organisation? MR MEYIWA I joined it in 1989. MS REDDY Your membership card actually says or proves that you were a member in 1993. Now to actually convince this Committee that you were a member in 1991, did you ask anybody to actually come here today to corroborate your statement? MR MEYIWA No, I did not. MS REDDY Can you provide me with the reason? MR MEYIWA I attempted to contact my family, but I could not do so because from two weeks ago we were being transferred in prison so that my family is not aware that I am still at Westville Prison. MS REDDY When did you get notice that this application was going to be held here today? MR MEYIWA I heard last Friday. MS REDDY Who gave you instructions to go and kill the deceased in question? MR MEYIWA It was Mr Mbambo and Mr Mthambo. MS REDDY What did Mr Mbambo relate to you and your comrades? MR MEYIWA Mbambo informed us that there was a person in the Ngonyameni area who supported the IFP there as well as the IFP S Unit 17. MS REDDY Did you do any intelligence investigation to find out what Mbambo has stated to you and your comrades, was correct? MR MEYIWA Firstly we trusted Mbambo in the organisation as a loyal member. Secondly, it was not permissible that when a senior person gives you instruction that you go and do your own investigations because we assumed that the leaders had done that and because our activities were underground in nature, conducting that investigation could perhaps have led to the police knowing about it, so it was against the policies of the organisation for us to do that. MS REDDY What you're actually trying to tell me is notwithstanding the fact that your senior could be wrong, you would go ahead and kill somebody? MR MEYIWA He was a person who was trusted within the organisation and for the fact that the organisation was in contact, communicated with other branches, we assumed that that information was ...(indistinct) MS REDDY Did you make any endeavours to call Mr Mthambo to give evidence on your behalf here today? MR MEYIWA i was unable to do that for the reason that many people have been displaced from that area due to the violence. ADV SANDI Yes, but just explain that. Have you been in touch with Mr Mthambo at all? MR MEYIWA I last saw him before my arrest. ADV SANDI Thank you. CHAIRPERSON Has the Investigative Unit been in touch with Mr Mthambo? He is clearly an implicated person. MS THABETHE No, Mr Chair because Mr Mthambo is deceased. CHAIRPERSON He's deceased? MS THABETHE Yes. MR MEYIWA I did not know about that. MS REDDY After Mr Lembede was killed, did his killing actually stop the violence between the violence between the IFP and the ANC? MR MEYIWA It did not stop but it did subside, decreased a bit. MS REDDY Can you tell me why you and your companions chose to attack Mr Lembede on a Friday? MR MEYIWA There were people who were known to be trusted to be able to protect and carry out duties in the organisation and those people were ourselves. MS REDDY Could you actually repeat the answer to the question? I just lost you somewhere. MR MEYIWA There were people who were trusted to defend whatever happened in our area, or who were able to carry out assigned to them by the organisation and those were people like myself. CHAIRPERSON The question was, who decided and how did you decide to do it on a Friday? MR MEYIWA It was for the reason that the person who was going to show us the area of Ngonyameni worked until late and on a Friday he got off work a bit early. MS REDDY Why did you all actually choose to attack Mr Lembede in his shop? MR MEYIWA In fact Mr Lembede could have been attacked anywhere but his home might have been safer for him because that is where the weapons were stored, but it was unlikely that he was going to keep the weapons inside the shop. MS REDDY Mr Mbambo's version is that you and the comrades actually planned the robbery. He says it was not a political reason that you all went to kill Mr Lembede but it was because you all wanted to rob the store of money. What would you respond to that statement? MR MEYIWA What he is saying is not true. Actually what he states there is the same thing he stated in Court that he used to protect himself in Court and which enabled him to be acquitted. ADV SANDI Just to get more clarity on that. Should I understand that to say that he is once again trying to protect himself before this Committee? MR MEYIWA That's correct. ADV SANDI But my understanding is that he was given a Section 204 indemnity after he had testified in Court, isn't that the position? MS REDDY That is the position. ADV SANDI Are you aware that Mr Mbambo is facing no prospect of criminal prosecution in relation to this matter? MR MEYIWA I do not have that knowledge. CHAIRPERSON Was he given it or was he found not guilty. MR PANDAY Mr Chairman, I'm a bit confused. According to judgment of Didcott, he was constantly referred to as Accused number 1 and raised the defence of duress. CHAIRPERSON Yes. MR PANDAY ADV SANDI Is that the person referred to as Mahlane? MR PANDAY Yes, that's Mr Mbambo. CHAIRPERSON The position is he cannot be charged with that murder again. MR PANDAY He's been acquitted in this matter. CHAIRPERSON But he could be charged with perjury. MR PANDAY It's a possibility. MS REDDY After the killing of Mr Lembede, did you discover that he was really not affiliated with any political organisation and he was not supplying IFP with weapons? Did that knowledge come to you after the killing of Mr Lembede? MR PANDAY Sorry, Mr Lembede, I think that the question is a justified question but I'm not too sure if my learned friend is trying to put to the witness that Mr Lembede was not an IFP supporter or whether it was wrong information that he was supplying weapons. If my learned friend could justify that question to the witness or the applicant. MS REDDY Alright. Did you actually learn later on that Mr Lembede, the deceased in the matter, was not a member of the IFP or was not supporting the IFP? MR MEYIWA I did not learn of anything later. The only knowledge I had about him was that he was supporting the IFP, not that he was a member. MS REDDY No further questions. NO FURTHER QUESTIONS BY MS REDDY CROSS-EXAMINATION BY MS THABETHE Mr Meyiwa, just to correct a few things on your statement. On page 6 of the bundle, the first bundle, sorry Additional Bundle, paragraph 2, you say "In 1989 I became a member of the African National Congress." Should that read the South African Communist Party, based on the evidence you gave today? MR MEYIWA That's correct. MS THABETHE Paragraph 6, you say "Upon our arrival..." No paragraph 7, sorry, you say: "Myself and Mr Mkhize stood outside the shop as lookouts. Ernest, Mr Ndimande and Bobs went inside." I'm not sure whether I'm reading this correctly. Is Ernest Mr Ndimande? Is it the same person? MR MEYIWA No, Ernest is Mbambo. MS THABETHE So you're saying three people went inside the shop the second time? MR MEYIWA No, when they entered for the second time, it was just two of them. MS THABETHE Okay maybe let me start at paragraph 6. You say "Upon our arrival, the five of us, myself, Mr Ndimande, Bobs, Ernest and Mr Mkhize went to the shop." That was the first time, isn't it? MR MEYIWA Yes. MS THABETHE Right. Now you say "Myself and Mkhize stood outside the shop as lookouts. Ernest, Mr Ndimande and Bobs went inside the shop." Is this the second time? MR MEYIWA It's the first instance when Bobs and Ndimande and Mbambo went inside. I and Mkhize did not enter the shop. MS THABETHE So is the statement that upon your arrival, you went to the shop, that is the five of you, is that statement incorrect at paragraph 6? MR MEYIWA The five of us alighted from the vehicle. As we approached the shop we divided ourselves into two. The three of them went ahead and proceeded into the shop and myself and Mkhize remained behind. CHAIRPERSON So the three of them went into the shop, that's Mr Mbambo, Bobs and Ndimande. MR MEYIWA That's correct. MS THABETHE And then a few minutes thereafter you heard shots being fired? MR MEYIWA Mbambo, Bobs and Ndimande went outside. At that time Mbambo went to the vehicle. Bobs and Ndimande then returned into the shop. MS THABETHE Thank you Mr Chair ...(indistinct - mike not on) NO FURTHER QUESTIONS BY MS THABETHE JUDGE POTGIETER But where is that in your statement that you've told us now? MR MEYIWA But that is how it happened. JUDGE POTGIETER No, no, I'm not talking about how it happened, I'm talking about your statement. We're talking about your statement here, where's it in your statement? MR MEYIWA I don't know, but I think that's what I related. As I just mentioned that the five of us went out of the vehicle and three of them went into the shop and they went out and Mr Mbambo went to the vehicle, the other two then returned into the shop. JUDGE POTGIETER Well there's no reference to that in your statement. According to your statement five got out of the car, the driver stayed behind, the five of you went to the shop, you and Mkhize stood outside as lookouts, the other three went inside and after a while there was a shot, shots were fired and then you saw them coming out. CHAIRPERSON No, that is not correct. He saw two of them coming out. JUDGE POTGIETER Ja, you saw two of them coming out. CHAIRPERSON Bobs and Ndimande. JUDGE POTGIETER Yes. CHAIRPERSON Which agrees with the fact that Mbambo had come out before. JUDGE POTGIETER Yes. Now can I just get back to my question? Where is this, these details that you've referred to now, where's it in your statement? MR MEYIWA I did relate this. It perhaps is the mistake of the person who took the statement because the shots were fired once they went into the shop the second time around and Mbambo was no longer there. JUDGE POTGIETER So your statement is wrong? MR MEYIWA I think the mistake was made when reference was not made to what I've just stated. JUDGE POTGIETER Is this a statement that your lawyers took, or who took the statement from you? MR MEYIWA It was my attorney. JUDGE POTGIETER Yes. Thank you. ADV SANDI Just one question that has just come to my mind. Do you know if a report was given to Mr Mthambo after the killing of Mr Lembede? MR MEYIWA Yes. ADV SANDI Where and when was that? MR MEYIWA It was on the day that Mr Lembede was killed, the Friday. ADV SANDI Did you go to his house to give him this report? MR MEYIWA Yes. ADV SANDI Who was giving the report? MR MEYIWA It was the people who went inside Mr Lembede's shop to shoot him. CROSS-EXAMINATION BY MR PANDAY Sorry Mr Chairman, if I may just ask the ... Mr Meyiwa, you presented before this Committee your SACP card, right? That is correct? MR MEYIWA Yes. MR PANDAY Now what I'm just curious to know is that on the back of the card it states that this card was issued in May 93, it has your name on it, it has an identity number on it, the branch you're a member of and the region. That is your signature that appears at the back of the card, that's correct? MR MEYIWA That's correct. MR PANDAY Now at the bottom of your signature, we have 91, 92, 93 and you've got 93 ticked, is this card supposed to be renewed at any stage? MR MEYIWA I was renewing it in 1993 because ...(intervention) CHAIRPERSON When you say they've got it at the bottom of this card, they've got 91, 92, 93, that is printed on the card. The card appears to be printed over - to cover a three year period. MR PANDAY Yes, that is correct. Now what I'd like to know Mr Meyiwa, you mentioned that in 1989 you joined the organisation. What I want to know is that, how long does a card remain valid for? For how many years does this card remain valid? MR MEYIWA It is renewed annually. MR PANDAY Now from 89 to 92, did you have a card? MR MEYIWA No, I did not have it then, because I was in the holding cells, I was in prison for this offence. MR PANDAY No, but in 89 you were not in prison. Did you have a card in 89? MR MEYIWA Yes, I did. MR PANDAY And in 1990 you had a card? MR MEYIWA That's correct. MR PANDAY In 91? MR MEYIWA No. MR PANDAY Is that the year you were arrested? MR MEYIWA That's correct. MR PANDAY Just one more point to clarify. In paragraph 7 of the affidavit your attorneys took down, you mentioned that "After the shots were fired, Mr Ndimande and Bobs came out of the shop and we all ran to the car." Is that correct? MR MEYIWA That's correct. MR PANDAY Is it also correct that in that affidavit, it only fails to say what happened to Mr Mbambo before the shots were fired. MR MEYIWA Please repeat that question. MR PANDAY In that paragraph where you describe where the shots were fired and you all ran to the car, is it correct that the only thing left out is what happened to Mr Mbambo before the shots were fired? MR MEYIWA Yes, Mr Mbambo just went on to identify the deceased and he went back to the car. MR PANDAY And the only thing that fails to appear in paragraph 7 is that he went back to the car? MR MEYIWA That's correct. MR PANDAY Thank you. NO FURTHER QUESTIONS BY MR PANDAY CHAIRPERSON When did you write the letter that we've got a copy of? The Zulu version as at page 72? MR MEYIWA I wrote it in 1996 although I cannot remember the date. CHAIRPERSON Because in that letter, you refer to Mbambo whom you then called Sipho Mahlane, came back and stayed in the car with Elijah Nyawuza. MR MEYIWA Yes. CHAIRPERSON That's after he had pointed out the man, to show them the person. That is after he went to the shop to show them the person. MR MEYIWA That's correct. CHAIRPERSON Thank you. MS MOHAMMED Thank you Mr Chairman. I have no re-examination. That is the applicant's case. NO RE-EXAMINATION BY MS MOHAMMED CHAIRPERSON ...(indistinct - mike not on) MS MOHAMMED Yes. CHAIRPERSON Okay, thank you. WITNESS EXCUSED MR PANDAY The victim's case hereafter. MS REDDY Mr Chairperson, I now call Marcus Lembede, the son of the deceased. JUDGE POTGIETER What is the surname? MS REDDY Marcus Lembede. JUDGE POTGIETER Marcus Lembede. MARCUS LEMBEDE (sworn states) JUDGE POTGIETER Ms Reddy. MS REDDY Thank you. EXAMINATION BY MS REDDY Mr Lembede do you confirm that you're the son of the deceased? MR LEMBEDE Yes I do. MS REDDY Do you also confirm that you shared a close relationship with the deceased? MR LEMBEDE That's correct. MS REDDY Did you and your father, the deceased in the matter, belong to any political organisation? MR LEMBEDE At that time political organisations were not important to us. It was not something that concerned us at the time because my father was a business man. MS REDDY So you're emphatically stating to us that your father did not belong to any political organisation? MR LEMBEDE Yes, it was something that he was not concerned with. MS REDDY Did you and your father share the same house or abode? MR LEMBEDE Yes, we did at BB Section. MS REDDY What kind of a relationship did the deceased share with the community where he lived and where the shop was located? MR LEMBEDE He had good relations with the community and we did not know him to have any enemies. MS REDDY Would it be correct if I were to say to you that you knew more or less the involvements of your father? In other words, what I'm trying to ask you is if your father had to go for meetings, or were to supply weapons to IFP members, would you be able to, or rather would you know of that? MR LEMBEDE Yes, I may have known about that, but that didn't happen. CHAIRPERSON What were you doing at the time? MR LEMBEDE At that time, it was during the holidays and I at the time, I was a teach at Shomaela School. MS REDDY Prior to the killing of the deceased, did you know any of the applicants that appeared here today? MR LEMBEDE No, I did not know any of them. MS REDDY Would you be in a position to tell us whether the deceased knew the applicants? MR LEMBEDE He did not know them. MS REDDY I just need a little bit of direction in the question I'm going to ask you now. What kind of a shop did your father run? MR LEMBEDE It was a general dealership. MS REDDY Would you be able to provide me with an answer if I asked you whether he made a substantial amount of money in the shop? MR LEMBEDE I would not be in a position to respond, but I do not think he made a substantial amount, it could have been R400/R500. ADV SANDI Just explain that. R400/R500, is that per day, per week or what? MR LEMBEDE Perhaps per day. I'm not certain. JUDGE POTGIETER Was Friday a busy day in the shop? MR LEMBEDE It is normal that Fridays will be a little busier than the other days. JUDGE POTGIETER In your- from your experience would the income on a Friday be relatively more or relatively less than the income during the week, the rest of the week? MR LEMBEDE It may be slightly more than on other days. JUDGE POTGIETER Thank you. Ms Reddy. MS REDDY In the area that the shop was situated, would you be able to tell me which political group was strong, or in other words had a strong leadership in the area the shop was situated? MR LEMBEDE There was no political organisation that existed in that area, people went about their ordinary activities, there was no organisation that was active in that area. MS REDDY Was there no conflict or killing between ANC members and IFP members in that particular area? MR LEMBEDE There was no violence ever. MS REDDY In your opinion, what do you think was the motive of the killing of your father? MR LEMBEDE I do not know the reason. I do not know. MS REDDY Was this shop previously robbed? I'm talking about the occasion prior to the killing of your father. Were there any robberies that took place prior to that date? MR LEMBEDE It had never been robbed before. I do not remember any time when it was robbed. MS REDDY How would you feel if the Committee actually grants amnesty to the applicants? MR LEMBEDE I would not be pleased. MS REDDY Do you wish to state anything else to this Committee? MR LEMBEDE What I would like to state is I am still confused as to what motivated these people to carry out this act, particularly the two persons Meyiwa and Ndimande. I think they are the persons who know fully well why they killed my father. MS REDDY No further questions. NO FURTHER QUESTIONS BY MS REDDY MR PANDAY Thank you Mr Chairman. CROSS-EXAMINATION BY MR PANDAY Mr Lembede, you mentioned that you were a teacher and you have holidays during the period your father was killed. The school that you taught at, is it in the area or away from the area. MR LEMBEDE I am staying at BB Section and - or rather the shop was at BB Section and I'm staying in Q Section, but it is one township, Umlazi. MR PANDAY And the school that you taught in, is that in another township or the same township? MR LEMBEDE ; Same township, Umlazi Township. MR PANDAY Now the Ngonyameni area, that is also part of the Umlazi Township, is that correct? MR LEMBEDE It is outside Umlazi. MR PANDAY Now your father's shop, is that in the Ngonyameni area? MR LEMBEDE The one shop in which he was killed is in Ngonyameni which is a rural area closer to Umlazi. MR PANDAY Now Mr Lembede, would you agree with me that during that period 91/90, there was conflict that existed between the ANC and the IFP throughout the country? MR LEMBEDE I will talk about Ngonyameni area and I will say there was no violence. I will not be able to comment on other areas. MR PANDAY Let me rephrase the question. Mr Lembede, isn't it correct that in the Ngonyameni area there were only IFP supporters there? MR LEMBEDE I don't know. I don't know anything about that. MR PANDAY So if the applicant's version is that there were only IFP supporters there, you won't be able to dispute it, is that correct? MR LEMBEDE If you're talking about supporters of the IFP, what are you referring to? MR PANDAY The applicants have stated that the Ngonyameni area was an IFP stronghold. You won't be able to dispute that. MR LEMBEDE ; Who was their leader because I don't even know any leader of the IFP. I don't even know any meeting which was held by the IFP. MR PANDAY Now, let me ...(intervention) CHAIRPERSON Would you have known about meetings held in the rural area where you did not live? MR LEMBEDE No, I don't know and the reason being I don't even attend such meetings. MR PANDAY Okay. Now, Mr Lembede, I'm going to put - or let me put it rather, if someone was a threat to you and a threat to your family and you did not, or you could not go to anyone for assistance, would you have attended to the problem yourself? MR LEMBEDE I don't quite follow your question. MR PANDAY Mr Lembede, if someone was threatening to kill your family and threatening to kill you and you could not go to anyone for help, would you then attend to the problem yourself? MS REDDY Objection. Mr Chairperson, could my learned colleague be more specific when he says "attend to the problem", because attend could mean various things to different people? JUDGE POTGIETER Yes, that's also highly speculative, you want him to speculate. MR PANDAY No Mr Chairman, I'm actually going to lead up tot he question that I'm going to put to the witness. JUDGE POTGIETER Yes, but you want him to speculate. Where does it take us to? What assistance do we get in deciding the amnesty application? MR PANDAY Okay, I'll put it directly Mr Chairman. Mr Lembede you are before this Committee and you say you actually don't know the reason why your father was killed. Now all of the applicants have testified that the reason he was killed is because they received information that he was supplying weapons to the IFP and it is because of this he was considered as a threat to the ANC supporters. MR LEMBEDE That is s a mistake. We are one family with Lembede who was the president of the ANC in 1944. I don't know how my father could have joined IFP. That is a mistake. We've been a pro ANC family as from 1944. MR PANDAY Mr Lembede did you stop being a pro ANC family? MR LEMBEDE The person who was a pro ANC was my uncle, my father's brother, my father's elder brother, so we followed ANC because of that but we were never members of the IFP and my father was busy with his business, not politics. MR PANDAY Yes, now my question to you is that, did you all remain following the ANC? MR LEMBEDE We were not proactive, we were never running in the street, but we continued to love ANC. MR PANDAY ; Now Mr Lembede, if the applicant's received this information about the weapons being supplied to the IFP by your father, do you not think the actions would have been then justified? MR LEMBEDE What information? MR PANDAY About your father supplying weapons to the IFP. We're not saying that he was. MR LEMBEDE And what is the question there? MR PANDAY The question was that if someone told him this is what he was doing, then would they be justified? MR LEMBEDE You question is confusing me, I don't understand what you're saying, I don't quite follow. MR PANDAY Mr Lembede ...(intervention) ADV SANDI You're now asking him for his opinion? MR PANDAY Yes, in that circumstance. Mr Lembede the applicants say that the only reason they killed your father is because information was received he was supplying weapons to the IFP. CHAIRPERSON Information was received from one person only. MR PANDAY Yes, that's true, Mr Chairman. MR LEMBEDE I will ask one question then, why this information was received from one individual, why didn't they ascertain this by finding the facts from other people as well? MR PANDAY Mr Lembede the individual that brought the information to them was initially from that area and he trusted his decision or the information. MR LEMBEDE In my knowledge I know for a fact that my father couldn't have supplied weapons to the IFP because he didn't even have enough money, he wouldn't even bother himself in supplying weapons. I don't know how else I should answer your questions. MR PANDAY Thank you Mr Lembede. NO FURTHER QUESTIONS BY MR PANDAY CHAIRPERSON I think perhaps it should be put somewhat differently. As I recollect, supply may have included selling weapons to the IFP in which case he would have made money out of it, could that have happened. MS REDDY Mr Chairperson, could I just object? There was no mention of selling weapons, it was to my knowledge, it was just ...(intervention) MR LEMBEDE Such things couldn't have happened, he couldn't have sold weapons. He wouldn't have bothered. JUDGE POTGIETER Were there any weapons in your home? MR LEMBEDE My father had one weapon which was licensed, it was a legal weapon because ...(intervention) JUDGE POTGIETER Sorry, Ms Interpreter, carry on, sorry. MR LEMBEDE Because it is licensed and it's written in his ID. He had two in fact, one shotgun and a 9mm. JUDGE POTGIETER Licensed firearms? MR LEMBEDE Yes. JUDGE POTGIETER You have always been aware of those two firearms in the house? MR LEMBEDE Yes. JUDGE POTGIETER If there were a supply of firearms, of a variety of firearms as it was put here in response to one of the questions, in the house or that your father supplied the IFP, would that have escaped your attention or what? MR LEMBEDE It wouldn't have happened. I would have seen them because we were staying in one house. JUDGE POTGIETER Yes, thank you. ADV SANDI Did your father confide a lot to you? MR LEMBEDE Yes, he trusted me. ADV SANDI I've got a reason to ask this question. Were you his eldest son? ...(ethnic) MR LEMBEDE Yes. ADV SANDI Do you know if socially he had any friends? MR LEMBEDE No, he didn't have a best friend. His best friend was his shop and to go to work. ADV SANDI Yes, but if he was not at the shop, what would he be doing normally? Would he go out and spend time with some people, or would some people in the community come in to visit him? MR LEMBEDE He spent most of his time in his shop. If he wasn't at school, he was in his business. He was not a person who will go and visit other people. ADV SANDI This place where you say ...(intervention) CHAIRPERSON Sorry, before you ... What did he do at school? MR LEMBEDE He was a principal in Sikwama School. CHAIRPERSON Sikwama. He was a school principal, Sikwama Junior School? MR LEMBEDE Yes. CHAIRPERSON Carry on. ADV SANDI Thank you Chair. Maybe I should follow that. This place where he was a school principal, were there any political divisions amongst members of the staff? MR LEMBEDE I wouldn't know. ADV SANDI Now this place where you say you used to teach, is that - it was Shamaeni School, is that where you stayed during the week and come back over the weekend? What exactly was happening? MR LEMBEDE The rural area where we resided was in Umbumbulu, not Ngonyameni. Ngonyameni is the shop and there was a shop which was destroyed in Umbumbulu and he was renovating it. CHAIRPERSON Was the school in Ngonyameni? MR LEMBEDE There was a shop in Ngonyameni. CHAIRPERSON Was the school there, the Sikwama Junior School? MR LEMBEDE Yes, in Ngonyameni. CHAIRPERSON Are you also Lindelani Lembede? MR LEMBEDE Yes. MS MOHAMMED Thank you Mr Chairman, in light of the various issues that have been raised already up until this stage, there's no need for me to further cross-examine. Thank you. NO QUESTIONS BY MS MOHAMMED MS THABETHE Mr Chair, I don't know how to deal with this but Mr Panday has raised an issue here that the Ngongameni area was an IFP area and unfortunately there was no evidence led earlier on to that effect and the relevance of that is that it poses a question then as to if there were being arms supplied in an IFP area, who was the IFP fighting with, in the light of everything that has been said, so maybe I would like him to clarify that on the instructions given. JUDGE POTGIETER Yes, I'm also a bit confused about the allegation that it was an IFP stronghold. MS REDDY Yes and no evidence was led to that aspect. MR PANDAY Mr Chairman, it was always contended that the evidence that the deceased was supplying weapons to the IFP, not necessarily in the Ngonyameni area, and if my memory serves me correct, the first applicant, Mr Nkosinati Nyawuza, when he explained as to how Mr Mbambo had left his area where he had originally come from, he was - I think it was at that stage when the Ngonyameni area was an IFP area and where the applicants resided, that was an ANC area, as far as I understand. I may be incorrect, but ... MS THABETHE The impression I got all along is that the evidence of the applicants is that they were approached by Mahlane, who stayed at Ngonyameni area, who knew of Mr Lembede, who had evidence or whatever, information that Mr Lembede was supplying arms to the IFP in the area and the IFP was attacking people in the area. All of this was happening at Ngonyameni, hence Mr Mahlane knew everything about this. MR PANDAY We stand to be corrected. Let me just confirm that with ... MS THABETHE I can quote the relevant pages as well. MS REDDY Mr Chairperson, I have it in written notes here that when Nyawuza was led, he said "Mthambo went further to say that it would be a problem and it would affect them, if guns would reach them." Those were the exact words as written down by me, so that could be some clarification on that point. MR PANDAY Well, as I say, I stand to be corrected, that's very possible. I think the issue was that the reason for the attack was the supply of weapons to the IFP. MS THABETHE At Ngonyameni. MR PANDAY Is that the ... Okay I may stand to be corrected on that issue. MS THABETHE No Mr Chair, I don't have any cross-examination. That's the only point I wanted to raise in connection with this. JUDGE POTGIETER Oh you don't have any questions for Mr Lembede? MS THABETHE No, I don't. JUDGE POTGIETER Alright. Well then I think ..(intervention) MR PANDAY Ms Fatima can be of some assistance. MS MOHAMMED Mr Chairman, my notes reflect that when the first applicant was led, Mr Panday actually asked him "What did Mr Mthambo tell you?" and he said: "After Mbambo informed Mthambo in our presence of problems with the person helping the IFP, even Mbambo had to flee the area because of the situation. Mr Mthambo came to the decision that this person should be eliminated immediately because the weapons used in the Ngonyameni area will be filtered to Unit 17, who we were fighting. He then selected ..." and he just went on thereafter. Thank you. JUDGE POTGIETER Yes, that is roughly how I recall it as well. Yes. But perhaps you should carry on, it's your witness. MS REDDY No re-examination. NO RE-EXAMINATION BY MS REDDY JUDGE POTGIETER Just very briefly, Mr Lembede, was your father well-known in this area where he was teaching and doing business? MR LEMBEDE Yes, well-known. JUDGE POTGIETER And the family link to Mr Lembede, Anton Lembede the ANC leader, was that also something that was well-known? MR LEMBEDE No, it was not well-known. JUDGE POTGIETER The position of your uncle, I think you said your father's elder brother and his more active support or involvement in the ANC, was that also known in that area? MR LEMBEDE No, it was not well-known because he didn't participate more in KwaZulu Natal, he participated more in Gauteng. JUDGE POTGIETER Are you saying that if inquiries were made in the area, other people would have been able to explain the situation of your father as a well-known person in that area? MR LEMBEDE Yes, well-known. JUDGE POTGIETER If somebody were to mention your father's name, people would have said yes, he's the principal of the school here and he's got a shop down there and they can explain who he is, would that be a proper understanding of the situation? MR LEMBEDE Yes, precisely. JUDGE POTGIETER Yes, thank you. WITNESS EXCUSED CHAIRPERSON Thank you. We will now take the short adjournment. COMMITTEE ADJOURNS ON RESUMPTION JUDGE POTGIETER Do you want him sworn in Ms Reddy? MS REDDY Yes. SIBUSISO LEMBEDE (sworn states) EXAMINATION BY MS REDDY Do you confirm that you're the son of the deceased? MR LEMBEDE Yes. CHAIRPERSON Is this Sibonelo? MR LEMBEDE Sibusiso. CHAIRPERSON Sibusiso? MR LEMBEDE Yes. CHAIRPERSON Have you another brother Sibonelo? MR LEMBEDE Yes. MS REDDY Did you share a very close relationship with the deceased? MR LEMBEDE yes. MS REDDY Can you tell us whether your father was well-respected and like in the community he lived and in the area where the shop was situated? MR LEMBEDE Yes, he was. MS REDDY There is something that's very important you wanted to share with the Committee. Could you just proceed with that? MR LEMBEDE I would like to state that my father was very old and as such, if he is driving a vehicle, he would not be alone. As a diabetic he could not drive because his legs were by that time not functioning properly. If he had to go perhaps to the shop, he would be driven there and when he was going to school, he would also be driven. He could still walk but he had a problem with his legs. As such, he would always be travelling with one of his sons wherever he went in his vehicle. That is what I wanted to state before the Committee. MS REDDY How old was your father in the year 1991? MR LEMBEDE He was born in 1929. I think he was between 60 and 70 at the time. MS REDDY So in summary form what you need to tell this Committee is that you were fully aware of the whereabouts of your father at all times because he was not physically able to go anywhere without assistance by you or the remaining brothers in the Lembede family? MR LEMBEDE That's correct. We always knew his whereabouts. MS REDDY So you have no knowledge whatsoever of the allegation that was put before this Committee that your father supplied weapons to the IFP? MR LEMBEDE That is not true. It has never been true. MS REDDY No further questions. NO FURTHER QUESTIONS BY MS REDDY CROSS-EXAMINATION BY MR PANDAY Mr Lembede, I know and understand from your family perspective, your father had done nothing wrong in terms of supporting the IFP and so forth. Now my question to you is going to be actually very simple and straightforward. If the applicants were led to believe that this was the case, would they have then not been justified in the way they acted? Remember I'm not saying that your father's now doing it, according to your evidence, you've stated before this Committee that you'll have no such knowledge. My question is simple. If the applicants were led to believe that he was supplying weapons to the IFP, would their actions have been then justified in terms of the political context? MR LEMBEDE Please repeat your question. MR PANDAY Mr Sibusiso, you've mentioned that your father had problems with his legs and that you all always knew what he was doing. I accept that. I even accept when your brother stated earlier on that you all have no knowledge of him dealing with the IFP by selling weapons, that I accept. Now the applicants have testified that this was the information they were given and they acted on this information. Now, given the political situation back then, would they have been justified, if they believed in that information? MR LEMBEDE If that is the case, then many people were killed mistakenly. They got the information from one person. I think they should have investigated more and gained information to support that allegation, therefore I do not accept what they said. MR PANDAY You only don't accept it because it was not investigated, that's the way I understand your information. MR LEMBEDE What I'm stating is that I know my father, I knew what his activities were, I would take him to school and go to the shop. He was always in someone's company. MR PANDAY Yes. No I understand that Mr ...(intervention) CHAIRPERSON Isn't what he's saying is that if they had investigated, they would not have done it, because they would have found it to be untrue? MR PANDAY I accept that, Mr Chairman. Now Mr Lembede, the applicants were also following orders. Don't you think then it would have been the person who gave them the orders, who should have done the investigation? MR LEMBEDE That was up to them, but as I've already mentioned, it has never been the case that my father was involved in the IFP, I think they enjoyed shedding other people's blood. MR PANDAY Thank you Mr Lembede. NO FURTHER QUESTIONS BY MR PANDAY MS MOHAMMED Mr Chairman, I have no questions. NO QUESTIONS BY MS MOHAMMED MS THABETHE ...(indistinct - speaking simultaneously) NO QUESTIONS BY MS THABETHE MS REDDY No re-examination. NO RE-EXAMINATION BY MS REDDY JUDGE POTGIETER Sorry, Mr Lembede, perhaps you can help us. I'm just talking about the shop that your father was running, the money that was made in the shop, was that banked? MR LEMBEDE Yes, it was banked. JUDGE POTGIETER And can you help us? How regularly was that done? MR LEMBEDE It was done once a week. JUDGE POTGIETER And on any particular day of the week? MR LEMBEDE It would be a Saturday. JUDGE POTGIETER Saturday. I suppose, or perhaps I should ask you, where was the bank situated? MR LEMBEDE It was the FNB at Mobeni. JUDGE POTGIETER And would you then on a Saturday morning take all the takings and drive off to Mobeni and go and bank the monies that the business made? MR LEMBEDE Yes, my father would have counted the money and he would hand it over to us children to take to the bank. JUDGE POTGIETER Thank you. CHAIRPERSON Where was the money kept in the shop? MR LEMBEDE My father had a bag in which he kept his personal belongings as well as possessions from the shop because he did not have a safe, so I think that when he collected the cash in the evenings, he would put it in the bag. ADV SANDI Was this the only shop in the area? MR LEMBEDE Yes, it was. MS REDDY The witness can be excused, no re-examination. WITNESS EXCUSED MS MOHAMMED We now call Edgar Mukungo. EDGAR ZAMAHUSHLE MUKUNGO (sworn states) CHAIRPERSON Ms Mohammed. EXAMINATION BY MS REDDY What relationship did you share with the deceased? MR MUKUNGO He was my grandfather. MS REDDY Did you work with him at the shop? MR MUKUNGO Yes, I would assist him after school. MS REDDY On the day in question, were you present in the shop? MR MUKUNGO Yes, I was. MS REDDY Did you witness the incident in question? MR MUKUNGO Yes, I did. MS REDDY Can you tell us what occurred on the 21st of June 1991? MR MUKUNGO I arrived from school and left my school things at home and went to assist in the shop. In the afternoon after 5, I was preparing to close the front door after which we would then use the back door to serve the customers. As I was still doing that, I saw people approaching the shop from the main gate. I decided to wait for them, that they finish their purchases, thereafter I would close that door. As I was still standing there, my cousin asked me to go fetch the key from inside the shop. As I did that, I was following one of the people who had entered. I took that key and gave it to my cousin and he went to the back room. CHAIRPERSON Your cousin's name please. MR MUKUNGO Harom Kwela. CHAIRPERSON What did he got to the back room for? MR MUKUNGO He did not tell me, he just went. MS REDDY Can you just proceed with what you were telling us? MR MUKUNGO After I had given him the key, I went to stand near the front door and my back was towards the shop and one person was inside the shop. As I stood there, I heard a noise from the back. I thought perhaps it was a crate of Ijuba perhaps falling. I stood there for a few moments and then checked if indeed it was the crate. As I turned back I saw that my grandfather was struggling with a person inside the shop for a gun. MS REDDY Can I just interrupt you there? You said there was one person inside the shop. Now can you just tell us who is that one person? Is it one of the applicants? MR MUKUNGO Yes. MS REDDY Can you tell us specifically which one? MR MUKUNGO It was Mr Ndimande. MS REDDY And you said your grandfather was struggling with somebody. Who was that somebody? MR MUKUNGO It was Mr Ndimande who was inside the shop, he's the person my grandfather was struggling with. MS REDDY Alright. Proceed. MR MUKUNGO As they were still struggling my grandfather was holding onto Mr Ndimande's wrist and the gun was pointed upwards. They struggled towards the door where I was standing. I decided to go assist my grandfather. When I got there, I just grabbed the gun. MS REDDY Sorry, can you just go a little bit slower, we're trying to take down notes. MR MUKUNGO I grabbed the gun and we struggled with the person who was holding that gun. As we were doing this, we were nearing the front of the shop. As we were in front of the door, he shouted. He said "Please come and stab him." I realised that I was in danger and decided to hold on to the firearm. I twisted the finger that was on the trigger. As I did this, the gun went off and it was pointed towards outside the shop at the time. He released the gun as it went off and it remained with me. MS REDDY So, the gun didn't fall from Ndimande's hand, you actually took hold of the gun and that's when he released the gun, is that correct? MR MUKUNGO That's correct. MS REDDY The significance of that question is that if you remember, Ndimande actually led evidence to the extent that he left the gun on the floor or more specifically the gun fell to the floor, he didn't release the gun because you offered resistance. Alright, you can proceed. MR PANDAY Sorry Mr Chair. Is the representative seeking an answer or is merely stating a position? MS REDDY It's just a clarification because I remembered very clearly that Ndimande said there was a struggle and he left the gun on the floor and the witness here now says that he offered resistance and therefore Ndimande released the gun. MR PANDAY No, I accept that. JUDGE POTGIETER Do you want him to respond to that? MS REDDY ...(indistinct - mike not on) JUDGE POTGIETER You want him to respond. MS REDDY ...(indistinct - mike not on) JUDGE POTGIETER No, but to what you're saying, your statement. MS REDDY Yes. JUDGE POTGIETER You want him to respond to that? MS REDDY Yes. JUDGE POTGIETER Yes, Mister, do you agree that Ndimande let the gun fall to the floor or do you say as you testified that when the gun went off, he released the gun and you kept the gun? MR MUKUNGO We struggled for the gun and as I stated, I twisted his finger and the gun went off and he released it and I kept it, it did not fall onto the ground. JUDGE POTGIETER Thank you Edgar, you can now proceed. MR MUKUNGO After I had the gun with me, I ran from the front towards the back. As I was on my way, I heard gunshots going off. When I arrived at the back door, I turned, looking towards the front. I saw my grandfather falling. He was next to the counter. The person whom I had disarmed called to the others and said "Come and get the money." I then pointed the firearm towards him, that is towards the front door and fired. After that they scattered and ran away. MS REDDY Did you actually see who actually shot your grandfather? Did you see the person? MR MUKUNGO No, as I said, my back was towards the front door because I was running so I did not see the person who fired the shot. MS REDDY Did you see any of the applicants outside the shop? MR MUKUNGO I cannot specifically say who was there or who wasn't and I was not expecting anything to happen for me to remember. MS REDDY Could you just reiterate what you heard Ndimande say? MR MUKUNGO Are you referring to the first or the second instance, because the first time he shouted that they should come and stab me and the second time he shouted that they should come and get the money. MS REDDY I was actually referring to the second one, but you gave me clarification now. In your idea, why did the applicants fear to take any money or property from the shop? MR MUKUNGO In my opinion, it was because I had fired a shot towards them and they were aware that I had a weapon. MS REDDY Did you know or see the applicants prior to the day in question? MR MUKUNGO No. MS REDDY Did you and your grandfather share a close relationship? MR MUKUNGO I used to assist him in the shop and we would travel together from the shop to BB Section which was home, so I will say yes, we were. MS REDDY According to your knowledge were you aware that your grandfather supplied weapons to the IFP? MR MUKUNGO No. MS REDDY Can you tell me whether the applicants entered the shop just on one instance, or was it two different occasions? MR MUKUNGO As far as I know, they went into the shop once, that was when they were wanting to shoot at my grandfather. MS REDDY So according to your recollection it was just one time? MR MUKUNGO Yes, as far as I can recall it was just once. MS REDDY Do you belong to any political organisation? MR MUKUNGO I supported the ANC although I did not have a membership card. MS REDDY Do you wish to say anything further to this Committee? MR MUKUNGO What I can state is that I am puzzled by what has happened here because when I was at the shop I heard one person calling the others for the money, also people who are active in politics usually refer to one another as Comrades and I did not hear them relating to one another as such. MS REDDY Do you know whether there was any conflict with the ANC and IFP in the area where the shop was situated? MR MUKUNGO No, there was no conflict. MS REDDY Was the shop busy on a Friday usually? MR MUKUNGO I would say so because sometimes people would hold special gatherings on Fridays. In most instances most people were home on Fridays so we would be a little busy at the shop. MS REDDY So would you confirm that on a Friday there was considerably more cash in the shop in comparison to the rest of the days in the week? MR MUKUNGO Yes. MS REDDY In your opinion, what was the motive of the killing of your grandfather? MR MUKUNGO From what Mr Ndimande said, that is calling on the others to come get the money, it appeared to me that it was robbery that was intended. ADV SANDI Where was the money he was referring to? MR MUKUNGO It was kept at the till. MS REDDY Thank you Mr Edgar Mukungo, no further questions. NO FURTHER QUESTIONS BY MS REDDY CHAIRPERSON Can I - we've heard ...(intervention) INTERPRETER The speaker's mike is not on. CHAIRPERSON We've heard that your grandfather went to the shop after he left school where he was the headmaster. MR MUKUNGO Yes, he would first go to school and thereafter go to the shop, but I think at that time it was during school holidays so he was at the shop, although I was coming from school because I was attending at Technical College. CHAIRPERSON You were at the Umlazi Technical College? MR MUKUNGO Yes. CHAIRPERSON Now who else was working in the shop then? MR MUKUNGO It was my cousin, Harom and my aunt Tembisile Lembede as well as another aunt, Philipina and Makifi and Mana. CHAIRPERSON Sorry? Aunt Philipina and who else? MR MUKUNGO Makifi and Mana. CHAIRPERSON And were there customers in the shop? MR MUKUNGO When this incident occurred, I think it was quiet. I do not recall customers. There may have been one or two. CHAIRPERSON Do customers sometimes drink in the shop? MR MUKUNGO No, they were not permitted to drink inside. CHAIRPERSON And my last question is, do you remember you made a statement to the police? MR MUKUNGO Yes. CHAIRPERSON Now in that statement, you first of all talk of some three males who were strangers in Ngonyameni entering the shop and two of them buying "Metholister" and the third one buying Halls. Do you remember that? MR MUKUNGO Yes. That is what I had heard from my cousin Harom. I was told that they could not use that because it was something that I had not witnessed. CHAIRPERSON And in your statement you also say that your cousin Harom, was suspicious about these males who were coming to enter the shop, went to the outbuilding to fetch the weapon. MR MUKUNGO When he went out, he did not inform me what he was going to do. After all of this had happened, after I had fired at these persons and they disappeared, I went towards the back, this is going around the length of the shop, that is where I met Harom carrying the firearm, the firearm I was referring to in the statement. CHAIRPERSON What sort of firearm was it? MR MUKUNGO It was a shotgun. CHAIRPERSON And it was kept at the back, was it? MR MUKUNGO Yes, it was kept in the back room. CHAIRPERSON Thank you. MR PANDAY Thank you Mr Chairman. CROSS-EXAMINATION BY MR PANDAY Edgar, just tell me, who's shotgun was it that Harom went to fetch from the back room? MR MUKUNGO It was my grandfather's. MR PANDAY And were there any other weapons kept there, hand gun? MR MUKUNGO No. MR PANDAY Did your grandfather own any other guns? MR MUKUNGO Yes, he had a shotgun and a 9mm. MR PANDAY Do you know where the 9mm was? MR MUKUNGO It was kept in his briefcase. MR PANDAY And was the briefcase with him or in the outbuilding? MR MUKUNGO It was inside the shop. MR PANDAY Now, you mentioned that in the shop there were two aunties, Harom, Makifi, Mana and yourself, is that correct? MR MUKUNGO That's correct. MR PANDAY And including our grandfather that will make it 7? MR MUKUNGO Yes, those were members of staff that were employed by my grandfather, but when the incident occurred, some of them had left because they had to get transport going home. MR PANDAY Okay I just wanted to - now on that day in question when the incident occurred, who was in the shop exactly, not just staff, although - who was there? MR MUKUNGO Makifi was still around as well as Harom, then myself and my grandfather. MR PANDAY So there were 5 of you in the shop then? Makifi, Makifi was in the shop. MR MUKUNGO Yes. MR PANDAY You were in the shop, Harom was in the shop, your grandfather was in the shop. Is that all? MR MUKUNGO That's four. MR PANDAY Ja, four, sorry. Now, when did you first learn that - let me rephrase that question. When your attorney asked you a question, who was struggling with your grandfather, you mentioned the name Ndimande, is that correct? MR MUKUNGO Yes. MR PANDAY Now when did you first learn that Ndimande was the one that struggled with your grandfather? MR MUKUNGO When I went to take the key, he is the person who was in front of me. I gave the key to Harom and went back to where they were standing before. I only turned when I heard a noise from the back and as I did so, I saw my grandfather struggling with another man, the same person who I had been following. MR PANDAY Now when your grandfather was struggling with this man, did you take notice where the other people were in the shop? You mentioned three people came in, were you able to take notice where they were? MS THABETHE He only said one. MS REDDY He didn't say three, he said one. MR PANDAY According to his evidence, three strangers entered the shop. I'm trying to establish if they had left, or had come back in. CHAIRPERSON When did he say three strangers? MS THABETHE No, he didn't. MS REDDY It was one. MR PANDAY Okay, I'll rephrase the question, Mr Chairman. My apologies. Mr Edgar, is it correct that first three males entered the shop? MR MUKUNGO I stated that I learned that from Harom and I was told not to include it because it's something that was hearsay for me. MR PANDAY Now, when you were in the shop, how many did you see yourself? MR MUKUNGO Inside the shop, or when they entered the gate? MR PANDAY Inside the shop. MR MUKUNGO There was one person inside the shop. MR PANDAY Now tell me, were you able to identify the people? MR MUKUNGO The only person that I saw clearly was the one who was just in front of me. MR PANDAY Now do you recall the statement you gave to the police when this incident happened and you mentioned that "I cannot be able to identify the culprits as it was a bit dark." Do you remember that? MR MUKUNGO It was not dark, because it was around twenty past five. MR PANDAY And for any reason why you told the police this? MR MUKUNGO If you see a person for the first time, you do not necessarily assume that you are going to recognise them a second time. I had noted that the person was shorter than I am but I was not so sure that I would recognise him. MR PANDAY Now, when you say you took the gun from the one person, right, according to your statement "I heard the one black male from whom I took the gun, shouting, demanding some money." Was this when you were passing him or after you had taken the gun? MR MUKUNGO I do not quite follow. MR PANDAY You see, you say in your statement the following "I heard the one black male from whom I took the gun, shouting, demanding some money." Now when did you hear him demand the money? MS THABETHE ; Sorry, what page is it? MS REDDY What line is it? MR PANDAY page 108 at the third line from the bottom. MR MUKUNGO When he shouted, demanding the money, it was when I was standing at the back, facing towards the front door. That was after I had disarmed him and run towards the back door, that is when he shouted: "Come, let's get the money". MR PANDAY Now that's the part I'm confused about. You had already disarmed him, wouldn't that now create the impression that you are now in control of the shop? Wasn't the gun in your hand now? You see, you had already disarmed Ndimande, you took away the gun from Ndimande. Now why would Ndimande now still demand the money? MR MUKUNGO I do not know. Perhaps they were armed. They were armed, maybe that's what he trusted. CHAIRPERSON But I understand from your evidence that as you ran to the back you heard a shot and you turned round and saw your grandfather falling next to the counter and it is then when you heard this man shouting: "Come and get the money", just after your grandfather had been shot, is that so? MR MUKUNGO That's correct. MR PANDAY Now after you had taken this gun, did you hear any talk about money thereafter? INTERPRETER Would you please repeat that? MR PANDAY After you had taken the gun from Ndimande, did you hear about any talk of money thereafter? CHAIRPERSON He has told us that after he took the gun, he ran towards the back of the shop. He heard the shot, he saw his grandfather falling and he then heard Ndimande demanding money. MR PANDAY Okay. Thank you Mr Chairman. CHAIRPERSON That's what he has just told us. MR PANDAY Okay. Now Mr Edgar, did you see the person that shot your grandfather? MR MUKUNGO As I've already mentioned, I couldn't take a really closer look. I heard the gunfire and it was behind me as I was running. MR PANDAY Now would you agree with me if I had to say that had the applicants come there to rob the place, they would have still been in a position to rob it, even though you had disarmed one of them? MR MUKUNGO I think if I didn't have the gun in my possession, it would have been easier, but since I had already obtained the gun from them, it was no longer easy for them because I was also shooting, pointing in their direction. CHAIRPERSON You in fact shot at the man who said: "Come and get the money" and he ran away, is that not the position? MR MUKUNGO That's correct. MR PANDAY And finally Mr Edgar, would you dispute the applicant's version that they believed your grandfather to be a supplier of weapons to the IFP? MR MUKUNGO Would you please repeat that? MR PANDAY The applicants have testified that the only reason they were there to kill your grandfather is because they received information of him supplying weapons to the IFP and they were not there for robbery. MR MUKUNGO I dispute that. MR PANDAY Thank you. NO FURTHER QUESTIONS BY MR PANDAY MS MOHAMMED Thank you Mr Chairman. CROSS-EXAMINATION BY MS MOHAMMED Mr Mukungo, it has been your evidence that Mr Ndimande said two things whilst he was in the shop. Firstly he said: "Come and stab him" and secondly he said: "Come and take the money." Now it is Mr Ndimande's instructions to me and even to say that he never said these words to you whilst he was in the shop. Do you care to comment? MR MUKUNGO He said so right in front of the door. MS MOHAMMED Thank you. I have nothing further. NO FURTHER QUESTIONS BY MS MOHAMMED MS THABETHE Thank you. It's just clarifying questions. CROSS-EXAMINATION BY MS THABETHE How old were you when this incident happened? MR MUKUNGO I think I was 19 or 20. MS THABETHE When were you born? Maybe let's get that date. MR MUKUNGO 7th of March. MS THABETHE Which year? MR MUKUNGO 1971, the 7th of March. MS THABETHE Okay and were you staying at Umlazi or at Ngonyameni? MR MUKUNGO Umlazi. I used to go and help my grandfather in the shop in Ngonyameni and go back to Umlazi. NO FURTHER QUESTIONS BY MS THABETHE. MS REDDY No re-examination. He can be excused. NO RE-EXAMINATION BY MS REDDY WITNESS EXCUSED MS REDDY We now call Ernest Sipho Mahlane to give evidence. ERNEST SIPHO MAHLANE (sworn states) EXAMINATION BY MS REDDY Thank you. What is your association with the incident in question? MR MAHLANE I was arrested together with the applicants. MS REDDY Why were you arrested together with the applicants? MR MAHLANE It is because I was present when they went to commit this crime. MS REDDY Did you, or do you confirm that you heard the evidence given by all the applicants today and yesterday? MR MAHLANE Yes, I do. MS REDDY Do you also confirm that you heard the version of the applicants and in more detail, when they said that it was you that informed them that Mr Lembede, the deceased in the matter, was providing weapons to the IFP? MR MAHLANE I heard them. MS REDDY Can you respond to their version? MR MAHLANE What I can say before this Committee is that what they said, it's a blue lie. I don't know anything about what they have said, but one can question me about what I know. MS REDDY So you're actually telling us that you did not provide them with any information to that extent? MR MAHLANE I don't know anything about the evidence which was led here yesterday and today. MS REDDY Did you know the applicants prior to the incident in question? MR MAHLANE Yes. MS REDDY How well did you know them? MR MAHLANE We were residents of Nzamane. MS REDDY Were you all friends? MR MAHLANE We were not friends, but we knew each other because we were staying in one area. MS REDDY Did you stay in close proximity to the applicants residence? MR MAHLANE Yes, it was in close proximity because it's a shack area. MS REDDY Did you belong to any political organisation in 1991, or even prior to that date? MR MAHLANE When I arrived in Nzamane from Ngonyameni, ANC was predominantly in Nzamane, therefore I followed the rest. I became a supporter of the ANC. MS REDDY Were you a member, active member, in the ANC? MR MAHLANE I was an ordinary supporter, like the residents of that area. MS REDDY Did you attend meetings or campsites like the applicants actually related to us, that they used to meet you at the campsite and they knew that you were a trustworthy ANC member, or rather supporter. What is your response to the version that the applicants put before this Committee? MR MAHLANE I used to attend the meetings like any ordinary community member. We used to attend those meetings. MS REDDY Did you assist in the conflict between the ANC and IFP? MR MAHLANE I never held any position in any of these organisations. I never participated in anything. MS REDDY Do you recall what was the version of the applicants in respect to your affiliation with the ANC and the role that you played? MR MAHLANE Yes, I heard them and that doesn't mean what they've said is true. MS REDDY So you're telling us the version of the applicants was not the truth? MR MAHLANE It is blue lies. MS REDDY Let's just go back to the 21st of June 1991. ADV SANDI ...(indistinct) let's try and exhaust this particular aspect. Do you know if there were any physical confrontations between members of the ANC and the IFP in that area? MR MAHLANE Yes, I do. ADV SANDI Did you personally take part in those fights? MR MAHLANE No. I was attacked. ADV SANDI Where were these fights taking place, was it at Ngonyameni or Nzamane? MR MAHLANE At Nzamane. ADV SANDI Thank you. Sorry, why did you leave Ngonyameni? MR MAHLANE It was my parent's home, therefore I left for my own home. ADV SANDI You did not leave because you were under attack from members of the IFP? MR MAHLANE No. ADV SANDI Thank you. MS REDDY What time period are you actually talking about, or what is the time period if you left the Ngonyameni area and you went to Nzamane, am I correct? MR MAHLANE Yes. MS REDDY Before the 21st of June, on what day did you actually, round about what time - not what time, rather round about which year, which month or which date if you could recall, you left the Ngonyameni area and went to Nzamane before the incident in question? MR MAHLANE I arrived in Nzamane in 1898. MS REDDY Would you be able to tell us whether the Ngonyameni area was IFP stronghold or ANC stronghold? MR MAHLANE During that period, there was no political activity in Ngonyameni, I don't know if people were hiding their affiliations, but there were no political activities at all. MS REDDY So in your opinion and according to your knowledge, are you tell us there were no conflicts between IFP and ANC in the said area? INTERPRETER Which said areas? Ngonyameni or Nzamane? MS REDDY Ngonyameni. MR MAHLANE Yes. MS REDDY You listened to the versions that were given by the applicants and in more detail where they stated in their evidence that you actually ...(intervention) MR MAHLANE Yes, I did. MS REDDY So at no stage did you approach the applicants and inform them that Mr Lembede was providing weapons to the IFP? MR MAHLANE Not at all and I don't know anything about this, I heard about it for the first time here. MS REDDY On the 21st of June 1991, can you relate to us what happened? MR MAHLANE Yes. MS REDDY Could you proceed and tell us exactly what happened? MR MAHLANE It was in the afternoon I think at about quarter to five, it was after I came from work. When I arrived at home next to a certain hostel there was a car belonging to Mr Nyawuza. There was Nkosinati, his father and Mkhize and Ndimande. The five of them, they were sitting under a tree drinking beer and I greeted them. They told me that they have been waiting for me and they had already mentioned to me before that they wanted me to take them to Ngonyameni and I had refused and on this particular day they reminded me that they wanted me to take them to Ngonyameni and I told them that I needed to go home and I went home. I changed. I left grocery because I had brought some grocery and as I was at home, Mkhize came to me and told me that these people were fighting, they wanted me to hurry up. I followed Mkhize. I went to the tavern where they were drinking because I also wanted to drink one quart. As I was drinking that beer, Philbert, Mr Ndimande, came in and told me that they were waiting for me. He had a shotgun, a .38mm. I left that beer there. I went to the car. I got inside, in front of the bakkie and I sat between Nyawuza and Ndimande. MS REDDY Just stop there. MR MAHLANE They said they couldn't use the route which go past Isipingo because their car was not fit for that route, but they will use the one that goes past the township. MS REDDY Could I just interrupt you and ask you what were your reasons for you accompanying the applicants? MR MAHLANE I was forced because I knew how they were and I had to go with them. MS REDDY Can you describe the nature of the force? MR MAHLANE I was forced because initially I had refused and they came for the second time and I knew that if I were to refuse again, my life was in danger because they had already mentioned to me as to what they wanted in Ngonyameni. MS REDDY What did they mention they want from Ngonyameni? MR MAHLANE They said they wanted money. At first I was questioned as to how many shops are in Ngonyameni. I mentioned all of them up until to K Section and they said the first shop they will attack is Mr Lembede's shop because he was the one who was rich or making more money than other shops in Ngonyameni. MS REDDY Did they know Mr Lembede, the deceased, prior to the day in question? MR MAHLANE Yes, they knew him. I got this from the information they had. MS REDDY So in your opinion, what was the reason for taking you along? MR MAHLANE Would you please repeat that? MS REDDY In your opinion, what was the applicants' reason for taking you along with them to rob the store? MR MAHLANE As I've already mentioned, they didn't know his shop and they also didn't know the roads in that township. MS REDDY Are you confirming that the applicants knew Mr Lembede, but they didn't know where the shop was located? MR MAHLANE Yes. MS REDDY Are you also confirming that they took you along to do a pointing-out of the shop? MR MAHLANE The shop and also the roads, or the route that go past the township to Ngonyameni, they didn't know that route. MS REDDY Did you eye witness the whole incident that occurred at the shop? MR MAHLANE No, I didn't. MS REDDY When you arrived at the shop, can you tell us what happened thereafter? MR MAHLANE We didn't actually arrive in the shop, the car stopped at a corner near the shop. We alighted and they discussed as to how they're going to commit this. Nyawuza took a gun and gave it to his son. Mr Ndimande had his own gun. Then they left. I was left with Mr Nyawuza on that corner where he had parked the car. A few minutes later we heard gun fire. Immediately Nyawuza drove his car closer to the shop now and then I started walking back and later I saw the car driving faster and he couldn't completely stop. I jumped in the car as it arrived where I was. MS REDDY Is it correct if I were to say to you that you did not accompany the applicants into the shop at any stage? MR MAHLANE No, they only went once in that shop, they didn't go there twice. MS REDDY So you didn't have to point out Mr Lembede to them? MR MAHLANE No. MS REDDY According to your knowledge, do you know why the applicants chose a Friday? MR MAHLANE I think they chose a Friday because businesses usually they make more money on Friday. MS REDDY ...(indistinct - mike not on) Did you know whether the applicants belonged to any political organisation? MR MAHLANE No. I don't know anything at all and we stayed in one area for quite a long time because I was a student or a scholar in the school where he was heading and I don't know anything about his political affiliation. CHAIRPERSON Who are you talking about? Whose political affiliations? MS REDDY The applicants. Just a clarification, I'm actually asking you whether you know whether the applicants belonged to any political organisation. MR MAHLANE They were ANC members or supporters, but not all of them, some of them. MS REDDY When you say some of them, can you clarify that point? Which one of those, of the applicants? MR MAHLANE I used to see Philbert and Dikisi, I never saw Nyawuza and his son. CHAIRPERSON Before that, did you tell us that you went to the school that Mr Lembede was the headmaster of? MR MAHLANE Yes. CHAIRPERSON And did you get to know him quite well? MR MAHLANE Yes. CHAIRPERSON We've heard, we've been told that he had trouble with his legs and he had to be drive, he couldn't drive his own car, he had to be drive around. Did you know that? MR MAHLANE When I left Ngonyameni area, I knew that because I used to see him limping. MS REDDY Would you be in a position to tell us whether Mr Lembede belonged to any political organisation? MR MAHLANE I've already mentioned this. I said I didn't know anything about him being affiliated with any political organisation. MS REDDY What was the attitude of the community towards the applicants? MR MAHLANE Most of the community members were being harassed by these people and I am one of those people who's been harassed by these people. MS REDDY Are you aware whether they were involved in criminal activities? MR MAHLANE I know about what used to happen in the area at Nzamane. I wouldn't talk about what happened in Courts, I don't know, but I know what they used to do in Nzamane. MS REDDY Could you just tell us? MR MAHLANE Torturing people, shooting people, killing people. They were killing the very same people whom they are claiming today that they were protecting. I was one of those people. I was assaulted 200 times. This was done by Mr Mthambo, the one they say I've spoken to him. MS REDDY Do you know who was in charge of the ANC in 1991 in the Nzamane area? MR MAHLANE Yes, I do know. MS REDDY Can you tell us? MR MAHLANE Mr Ndimande. MS REDDY Did you actually hear the version of all the applicants when they said to us that it was Mr Mthambo who was heading the ANC at that time and it was Mr Mthambo who was the person who issued the instructions to them based on the information that you gave? How would you respond to that? MR MAHLANE That's a blue lie because I wasn't in good terms with Mthambo and Mthambo was not an ANC member and they know that Mthambo was killed by comrades. I don't have a place of my own because of Mthambo. Mthambo took my house. MS REDDY So you're actually sure about the fact that Mr Mthambo was not heading the ANC at the attack? MR MAHLANE Yes. MS REDDY Thank you Mr Mahlane. No further questions, Mr Chairperson. NO FURTHER QUESTIONS BY MS REDDY CHAIRPERSON ...(indistinct - mike not on) It seems to me we've reached the time, normal adjournment time. We will now adjourn optimistically for half-an-hour, probably more likely three-quarters. MS THABETHE Mr Chair, can I just go and check because the previous times we've had to wait for lunch. CHAIRPERSON Well, the first time we adjourned after one and we had to wait because the lunch had been taken away to be reheated, so do go and check. MS THABETHE Whether it's ready. Has somebody gone? COMMITTEE ADJOURNS ON RESUMPTION MR PANDAY I think the problem he might have, Judge, if he's gone outside he can only come in at 2 o'clock because of ... JUDGE POTGIETER They lock the gate. MR PANDAY Ja, I had ... CHAIRPERSON ...(indistinct - mike not on) MR PANDAY I had the problem now. I think whilst we're waiting for him, I mean we stopped at a convenient point with his cross-examination, we can go on with any of the TRC investigators in so far as their evidence is concerned, if we need to complete them. MS THABETHE The Committee will bear with me, I was caught unawares. Mr Chair, may I ask one of the Committee members to swear Sheila Mkhize in? SHEILA MKHIZE (sworn states) JUDGE POTGIETER Ms Thabethe. EXAMINATION BY MS THABETHE Thank you Mr Chair. Ms Mkhize, are you the investigator for the TRC? MS MKHIZE Yes, I am. MS THABETHE Were you investigating the matters of Nyawuza, the two Nyawuzas, Meyiwa and Ndimande? MS MKHIZE Yes, to clarify there, I was investigating a matter of Elijah Nyawuza. MS THABETHE And subsequently the others? MS MKHIZE Yes. MS THABETHE Now we have a statement in the bundle at page 48 which you took when you went to see Mr Elijah Nyawuza. MS MKHIZE Yes. MS THABETHE Who did you go with when you went to take the statement? MS MKHIZE I went with the other investigator, Joshua Sikumbuso Cele. MS THABETHE We've heard evidence yesterday from Elijah Nyawuza denying the contents of some of - denying some of the contents in the statement at page 48. I've highlighted the contents that he denies, what would be your response to that? MR PANDAY Sorry, I think if my learned friend would put the contents as denied to Ms Sheila ... MS THABETHE On record. MR PANDAY Yes, just asking her to read it off, to highlight it. MS THABETHE Okay. Thank you Mr Chair. Maybe before I ask her to respond on the contents, Ms Mkhize, can you tell us, did you consult with the witness before you wrote the statement? MS MKHIZE Yes, I did. MS THABETHE Did you read it to him after you had written it? MS MKHIZE Yes I did. MS THABETHE And then what happened? Did he sign it after that? MS MKHIZE He did put a mark, because he was unable to sign, to endorse his signature. MS THABETHE Right. Now on paragraph 3 of his statement, it's written "I charged them R60 for taking them" and then I'll jump and say at paragraph 5 he says: "The sum of R60 that I charged them was not for my personal gain, it was merely for petrol." The applicant yesterday denied this. What would be your response to that? MS MKHIZE My response is I wrote down what he told me and of which he confirmed after I had read it out to him. MS THABETHE So did he say he charged them R60 as opposed? MS MKHIZE Yes I will say, I took down exactly what he told me, so all the contents are exactly what he told me and he said to me that he charged the co-perpetrators this, the alleged co-perpetrators the sum of R60 for petrol. MS THABETHE Yesterday the applicant indicated that he said to you the cost of going to Ngonyameni Reserve was approximately R60 and that's the amount of petrol which he put into his car, he didn't charge anybody. MS MKHIZE I would say that is not the truth according to what he told me, because firstly, I had to pose questions to him before writing down a statement and then I subsequently requested that what he tells me be put down in writing and he agreed to that, so I did exactly - I wrote down exactly what he told me. ADV SANDI Sorry, Ms Thabethe, did he change that later and say that was actually money that came from him, he spent R60 for petrol there? Didn't he change that later in his testimony? MS THABETHE Sorry, I don't understand the question. Is the question did he change and say that was money coming from him? ADV SANDI Yes, that's the way I understood him yesterday, right towards the end of his testimony. MS MKHIZE Yes and that's what I put to Sheila, that he changed and said the money was coming from him. MS THABETHE What language were you consulting with Mr Elijah Nyawuza, what language were you using? MS MKHIZE We used Zulu. MS THABETHE And then did you write the statement in English? MS MKHIZE Yes, I put down the statement in English and I did explain to him that the statement will be put down in English, so that is my interpretation. MS THABETHE Thank you Mr Chair. JUDGE POTGIETER Was that the only difference? Wasn't there more? What about the political objective? MS THABETHE Oh yes. Thank you Mr Chair. I'm indebted to you. Paragraph 5, the applicant, or rather you had written "I did not see to achieve any political objective in this involvement." The applicant indicated that what he actually told you is that he did not know Mr Lembede before and therefore had no objectives to kill him, but after he was given instructions to kill him, he followed them as an ANC member. What would be your response to that version? MS MKHIZE I would say I first asked him questions, as I've said earlier on, so after he had told me that he was given the sum of R60 for petrol, I asked him: "Was that for your personal gain or not, or did you seek any - sorry, to say, I first asked him whether he asked the money for his personal gain or not and then he told me that he did not ask the money for his personal gain and it was merely for petrol, as it is indicated in paragraph 5 and then he proceeded to say that he did not seek to achieve any political objective whatsoever, or any gain whatsoever in this involvement, he merely involved himself in taking, in conveying the co-perpetrators to the scene of crime and he was not aware of any political objectives being sought by the other perpetrators. NO FURTHER QUESTIONS BY MS THABETHE ADV SANDI ...(indistinct) at any stage in the course of what you have referred to as consultation with him, express any desire to withdraw his application for amnesty? Did he say such a thing? MS MKHIZE Do you mean when we, at the first, in the first incident when we made a consultation, or during the interview? ADV SANDI When you were taking the statement from him, did he say: "I'm now withdrawing my application because this thing is not political"? MS MKHIZE Okay, I will put it this way. I first explained to him the reason why I was there in the prison, so I asked his permission to have a sort of an interview and I asked to take down, to put down in writing whatever he was going to tell me and then he agreed. Then I posed questions and during that interview, as I mentioned earlier on that I was with my other colleague Mr Cele, so he intervened while we were talking with Mr Nyawuza and then he asked him questions regarding the political objective, indicating that he had the background of the whole incident because he previously worked in Isipingo police station, whereby he knows exactly what happened in this particular incident. Then later on this Mr Nyawuza turned to me and said he now wishes to withdraw his application on the note that he understands that it is - the matter was not political, that is what he told me. Furthermore, I approached him and I asked him whether he still wants to proceed to withdraw his application on the very same statement that he has made to me or does he wish me to start afresh and make a new statement. He told me that no, he wants to proceed on the very same statement that he was making to me. JUDGE POTGIETER There's just another aspect as well, in paragraph 6, that first sentence in paragraph 6. To my mind, the way I understand his testimony, Nyawuza also disputed this. The effect of the sentence, namely that he now believes it was not political and later learned that the victim Lembede was not involved in any political organisation, that was also disputed, now what is your response to that? Where does that come from, that information? MS MKHIZE I think, well I would say this is what he told me after he had been talking to Mr Cele, so there were many questions that he answered that were being asked by Mr Cele, my colleague, and which maybe I assume would have caused him to later on turn to me and tell me that he now wishes to withdraw his statement, because he believes that this matter was not politically motivated. JUDGE POTGIETER And you say that the source of this sentence here came from him, from Mr Nyawuza, he told you this. MS MKHIZE Yes Sir, Mr Nyawuza told me that. JUDGE POTGIETER He's the source of this sentence here? Yes, thank you. CHAIRPERSON Did Mr Cele tell him something like that? MS MKHIZE Can you clarify that Mr Chairman. CHAIRPERSON Did he tell him that he knew about the background and he knew that it was a non political? MS MKHIZE Yes, Mr Chairperson. CHAIRPERSON And he asked, Mr Cele asked Nyawuza whether he was telling the truth. MS MKHIZE Yes he did. CHAIRPERSON It was a fairly, it would appear to have been a fairly heated discussion between them. MS MKHIZE Yes, Mr Chairperson, as I indicated that he intervened while I was busy conducting the interview with Mr Nyawuza. CHAIRPERSON And it was after Cele had told him as fact the things, that he said this. MS MKHIZE Yes, Mr Chairperson. CHAIRPERSON Anybody else want to ask any questions? MS MOHAMMED Mr Chairman, I have no questions thank you. MS REDDY Yes, Mr Chairperson. CROSS-EXAMINATION BY MS REDDY Ma'am can you tell us how long you were assigned the duty of Investigator for the TRC? MS MKHIZE Since 1996, the 20th of May. MS REDDY In your opinion, what words did Mr Joshua Cele say to Mr Nyawuza that could have suggested that he should actually change his statement or withdraw his application? If there was, you could respond. MS MKHIZE In my opinion, Mr Cele asked him, I'll rephrase this - the intervention of Mr Cele must have caused him to realise something, I would say something like, seeing that he has now been caught out in a way where he was confused, I would say, because he turned to me without having responded to other questions from Mr Cele, then he turned to me to say he would like to withdraw his application. MS REDDY In your opinion, did Mr Joshua Cele intimidate Mr Elijah Nyawuza? MS MKHIZE I wouldn't say he intimidated him. As far as I recall, there was nothing intimidating in his statement, or in his questions to Mr Nyawuza. MS REDDY Once again, in your opinion, why do you think the applicant, Mr Nyawuza, is giving us or has given us a different version to what you have stated to this Committee? MS MKHIZE I don't have much to say there, but I would say he is trying other avenues to maybe, I would say, to have the Committee reconsider his application, seeing now that the other applicants' matters have been heard. MS REDDY So would you confirm that he's actually taking advantage of the situation to cloud the issue of the robbery and justify it with the issue of the or the motive of a political nature? MS MKHIZE I won't have much to say there because I did not have any particular interest in the matter except that I was only investigating and while on that note, whatever he told me I had to put it down into writing and make use of that maybe for other investigations as well. MS REDDY Thank you. No further questions. NO FURTHER QUESTIONS BY MS REDDY CROSS-EXAMINATION BY MR PANDAY Can I call you Sheila? MS MKHIZE Yes, you can. MR PANDAY Sheila, would I be correct in assuming that you were assigned to carry out the investigations with Mr Nyawuza? MS MKHIZE Yes. MR PANDAY Now for what particular reason did Mr Cele accompany you? MS MKHIZE I would start by saying as investigators at that particular time, we didn't have enough vehicles for each and every member to go out and do his or her work. Now it happened that we were sharing a vehicle, so in that way he was in a way involved in my investigations, as I was in his. MR PANDAY Anyhow, I accept that you were sharing a vehicle, but did he have his own personal work or personal investigations to attend to at the prison? MS MKHIZE No. MR PANDAY Alright. Now, so in actuality ...(intervention) JUDGE POTGIETER You were working as a team? MS MKHIZE Yes, Sir, we worked as a team. JUDGE POTGIETER You were forced to share your workload. MS MKHIZE We were in a way because whatever I heard, then he also had to account because we were doing one work, we had the same work at the same time. JUDGE POTGIETER Thank you. Sorry. MR PANDAY So will it be correct to assume that both of you were working on the same file, on Mr Nyawuza's file? MS MKHIZE Yes, we had, I would say not both of us were working, but he had access to my file as I had on his. MR PANDAY No, I understand that, but like if you have to take like in the police, you have an investigator that investigates a crime, that investigator is assigned to that and you won't out of the ordinary find unnecessary investigators chipping into that file. Now that is what I'm just trying to establish here. Would Mr Cele have any reason to interview Mr Nyawuza? MS MKHIZE He would, because as a partner, I would call him, he had to pose questions or to intervene and proceed with the investigation that I was doing. MR PANDAY Okay. Now, you mentioned that in conducting your interview with Mr Nyawuza you would speak to him in Zulu. MS MKHIZE Yes. MR PANDAY You would pose questions to him in Zulu and he will also then reply. MS MKHIZE Yes. MR PANDAY Now, pages 50, 51, and 52 are actually the hand-written version of pages 48 and 49. Now is that your handwriting? MS MKHIZE Yes, it is mine. MR PANDAY Right. Now what I'd like to know is that, was this statement, or this written version of pages 48 to 49 done after you had obtained the story from Mr Nyawuza? MS MKHIZE As we talked, as we moved along with the story, I was writing. MR PANDAY Now, would I be also correct to assume that Mr Nyawuza would have been telling you a lot of things that went on with regards to this incident? MS MKHIZE I don't get your question because ... MR PANDAY Okay. You went to conduct an interview with Mr Nyawuza. MS MKHIZE Yes. MR PANDAY And in conducting this interview you posed questions and he would have given explanation and at times his explanation would have been lengthy. MS MKHIZE Yes. MR PANDAY Now would I be correct in assuming that you may very well have preceded the explanations contained in pages 50 and 51? MS MKHIZE No, because let me explain that. As I obtain a statement, it is in Zulu and then I put it down in writing in English, so as he tells me a statement, I proceed. If his statement or his answer is a it lengthy I will ask him to stop and then I proceed, I carry on writing until the end of the sentence and then we proceed. That is my, that is the method that I use. MR PANDAY Okay and then after you had come to the end of the statement, or after you had translated the English, you'd ask the question, he'll give you an answer, you'll write it down, and that went on until you came to the end of the statement and thereafter he will have had to put the cross? MS MKHIZE Yes. MR PANDAY So you did not read the statement in return to him, after you had put it down? MS MKHIZE It is my duty to read out a statement as soon as we've finished the story. MR PANDAY No, I know what your duty is. What I want to know is that after you asked the question, he gave an explanation, you wrote it down and then when I asked you just now I said: "When you got to the end of it, he then put his X?" MS MKHIZE No, the X is only put after he has confirmed it, after I'd read it out to him and then he confirms that and then he put his mark. He swears and then he put his mark. MR PANDAY So this entire statement in English was then read back to him in Zulu? MS MKHIZE Yes, it was explained to him in Zulu. MR PANDAY Now, in so far as Mr Cele is concerned, you mentioned that Mr Nyawuza seemed to be confused and whilst talking with Mr Cele, he then responded by relating paragraph 6 where: "I strongly believe now that this activity was not political". MS MKHIZE Yes. MR PANDAY So can one assume that his belief only changed at that stage and not at the time when this matter, when this incident had taken place? MS MKHIZE I would say so. MR PANDAY Okay, thank you. NO FURTHER QUESTIONS BY MR PANDAY MS REDDY Just one point of clarification. FURTHER CROSS-EXAMINATION BY MS REDDY Do you confirm that there was nothing amiss when Mr Joshua Cele intervened whilst you were consulting with Elijah Nyawuza? MS MKHIZE Yes. MS REDDY Thank you Ma'am, no further questions. NO FURTHER QUESTIONS BY MS REDDY NO RE-EXAMINATION BY MS THABETHE CHAIRPERSON Thank you. MS THABETHE Mr Chair, may I ask for your indulgence that we, as a matter of you know finishing the process, have Mr Cele as well then we proceed with Mr Mahlane, just to complete the whole process? Thank you. I at this stage call Sikumbuso Cele, Joshua Sikumbuso Cele and may I ask Ms Mkhize to be excused, Mr Chair? Thank you. WITNESS EXCUSED JUDGE POTGIETER Mr Cele, just switch on the microphone and just rise to take the oath. Give your full names for the record. JOSHUA SIKUMBUSO CELE (sworn states) CHAIRPERSON Yes, Ms Thabethe. EXAMINATION BY MS THABETHE Are your full names Joshua Sikumbuso Cele? MR CELE Yes, Miss. MS THABETHE Are you an investigator for the TRC? MR CELE That is correct. MS THABETHE How long have you been an investigator for the TRC? MR CELE Two years Miss, since 1998. MS THABETHE Is it correct that this morning I gave you a tape to listen to of Mr Elijah Nyawuza? MR CELE That is correct, Miss. MS THABETHE And would you say then you are well versed with the allegations he has made against you? MR CELE That's correct. MS THABETHE With regard to the intimidation that he has alleged about you, would you say you intimidated him? MR CELE No, Miss. MS THABETHE Why do you say so? MR CELE I was present when he was being interviewed by Ms Mkhize and during the interview I picked up that I had some knowledge about the incident, so I just asked him a few questions to uncover the truth and I did not subject any pressure to him to withdraw his matter. MS THABETHE When he turned to Ms Mkhize and said he wishes to withdraw because he realised the matter was not political, would you say this was as a result of your- of what you said to him? MR CELE Well, Miss, I feel that it could have happened that he realised that his actions were known. I could say that could happen that he may have withdrawn because of it. ADV SANDI Tell us, what actions are you talking about? He realised that his actions were known. What actions? MR CELE I mean the commitment of the crime, Sir. MS THABETHE Now I just want to attend to another allegation that was made against you. Mr Elijah Nyawuza indicated, I'm sure you listened to that as well on the tape, that when there was a hearing where Zuko Mapoma was the Evidence Leader, you also uttered some intimidating words, If I may say so, in the passages, saying that this matter was not political and you don't know what they were doing here. MR CELE No, Miss, that is incorrect. I was actually telephoned by Sheila, Ms Mkhize, that the Judge was looking for me, so when I had drove back to the office, I went straight to her office to find out what was happening and then I met this gentleman also, the applicant. I did not speak to him, I only commented to Sheila, how can he make such allegations that we forced him, that I forced him to withdraw his matter and that is all, then I went out and went to my office which is also across Sheila's office. MS THABETHE Now Mr Elijah Nyawuza is here today as well. Would you say really your intervention when he was being interviewed, or rather let me rephrase - when you intervened and asked questions, was your intention to intimidate him? MR CELE No, that is not correct. You see if you know about something and if you investigate and it is the object of investigation to uncover the truth, I just fired out some questions because it came to my mind that I know about this incident. MS THABETHE So would you say you felt it as part of your duty as an investigator to let the applicant know about what you knew about this matter, would that be putting it correctly? MR CELE Yes, Miss. MS THABETHE Now I just want to turn to the affidavit that was written by Sheila, which was signed by Mr Nyawuza because you were there during the interview. Do you recall Mr Elijah Nyawuza telling Ms Mkhize that he charged the other perpetrators R60? MR CELE Yes, I do remember. MS THABETHE Thank you Mr Chair. NO FURTHER QUESTIONS BY MS THABETHE CROSS-EXAMINATION BY MS REDDY Prior to be assigned to the TRC, how long were you involved in investigation? MR CELE I joined the Detective Branch in 1990, so it could be about 7 or 8 years. MS REDDY When you were asking or when you related to Mr Nyawuza that you knew about the incident he spoke, what tone of voice you used? MR CELE Ma'am I was using my normal voice as I am speaking now. ADV SANDI What exactly did you say to him you knew about the incident? MR CELE Sir, I actually found out about Mr Lembede's political affiliation from the applicant and then I also stated what I knew about the matter, that Mr Lembede was the principal of a school and owning a near-by business. I don't remember him being involved in some violence or political things. MS REDDY Mr Cele, I just need you to assist me with this, which I omitted to ask Ms Sheila. If you would look at the affidavit on page 48, could you just ask...? MR CELE Yes, you may go ahead. MS REDDY Go to para 6. MR CELE Yes, Ma'am I can see that. MS REDDY Alright. That's where Mr Nyawuza says, and I quote "I strongly believe now that this activity was not political because I learned later that the victim, Lembede, was not involved in any political organisation, although I was an ANC member." Can you actually tell us why he made that statement? MR CELE Well, Miss, I cannot. I don't know what was in his mind. As I've said earlier I feel that it could have, as soon as he realised that some people know what actually happened there and then he made this statement. MS REDDY In your opinion, why do you think Mr Nyawuza related to this Committee that you intimidated him into withdrawing his application? MR CELE Well it could be because he wanted to pursue with his application and he wants it successful. Well I cannot really say what are his intentions. MS REDDY One last question. Were you, prior to this incident here today, involved in a similar situation? MR CELE Can you repeat yourself Madam? MS REDDY Alright. Let me just direct you there. We have the applicant, Elijah Nyawuza and he has related to this Committee that you intimidated him and as a consequence of that intimidation, he was forced into withdrawing his application for amnesty. Are you with me so far? MR CELE Yes, Ma'am. MS REDDY Alright. Prior to this, were you involved in a similar situation where an applicant made this allegation to you? MR CELE No, no, no, never Ma'am. You see there's a gentleman in this Court here, I believe he's a member of the ANC. I investigated his amnesty application when he was in the same prison and he can tell this Committee what kind of a person I am when I approach the applicants and the victims. MS REDDY Thank you Mr Cele, no further questions. NO FURTHER QUESTIONS BY MS REDDY CHAIRPERSON Sorry, can I just clarify? You said, I think, you were asked why the applicant made this statement and you said as soon as he knew that somebody knew what had happened there, he withdrew his application. MR CELE Mr Chair, can you repeat your question please? CHAIRPERSON As I understood it, you said that the reason for him making this statement in paragraph 6 was that he realised that somebody knew what had happened there. MR CELE Yes, Mr Chair. CHAIRPERSON But this conversation you had with him, took place on the 9th of December 1998. MR CELE Yes, Mr Chair. CHAIRPERSON He had been in Court, he had heard the evidence, he had been convicted and sentenced in November 1995, so he knew 3 years before that people knew what had happened there. MR CELE Yes, Mr Chair. It could have happened that he did not know that they will be available to testify as well before the Committee. MS REDDY Mr Chairperson, could I just assist with that point? This is my learned opinion, that when Mr Cele made statement, what he was actually referring to in perspective was, because Elijah Nyawuza knew that Mr Cele knew of the whole incident, that is why he subsequently withdrew his statement. Mr Cele could you just respond? JUDGE POTGIETER You mean that its an ordinary crime, it was not politically motivated? MS REDDY Yes. JUDGE POTGIETER Is that the focus of that? MS REDDY Ja, I mean in my learned opinion, I think that's what Mr Cele was referring to. It was because Nyawuza knew that he knew and he was actually before him, that is why he withdrew the application. Mr Cele you could assist us here? MR CELE Yes, Ma'am that is right. CROSS-EXAMINATION BY MS MOHAMMED Thank you. Mr Cele at the point when you realised that you had prior knowledge about this incident, did you not say, or did the thought not occur to you that maybe, because you were not in charge of this investigation, that you should actually disassociate yourself at that stage? MR CELE Madam we're working together, we help each other with the work as well as Ms Mkhize said, there was nothing to make me not to say anything when we need to get information from the applicant. MS MOHAMMED Thank you. NO FURTHER QUESTIONS BY MS MOHAMMED CROSS-EXAMINATION BY MR PANDAY Mr Cele, we know now that you had information, you were able to identify this matter. Now where did you reside that you were able to know of Mr Lembede? MR CELE At that time I was residing in Umbumbulu. MR PANDAY Umbumbulu. Now how far is Umbumbulu from Ngonyameni? MR CELE It could be about 10 kilometres. MR PANDAY And at that time you were stationed at the Isipingo police station. MR CELE yes. MR PANDAY Right. Now upon going to interview Mr Nyawuza, did you have the police docket in your possession? MR CELE No Sir, no I didn't have. MR PANDAY So you did not know the contents of this docket? MR CELE No I didn't know. MR PANDAY Now I seem to - the reason I ask you this is that in paragraph 5 we've got a copy of an affidavit, I've got one that was faxed to me on the 22nd of May, by the TRC, it's come from the TRC, the one of - Joshua Cele's affidavit, the one where you and Sheila deposed the affidavit, now this is what your paragraph 5 reads "I now wish to state that I knew about the incident. The deceased was the principal of a school in the Ngonyameni Reserve. I did not know his political affiliation. According to Mr Mahlane who turned to be a State Witness in the criminal trial, he and the applicant planned and robbed the deceased's shop." Now where did you obtain that piece of information? MR CELE You see if you are working as detectives, every morning you have a meeting and the serious matters are being discussed, what happened here, what happened there and I remember that at that time. MR PANDAY Right, so now as a detective, would I be correct in assuming that one of your primary functions would be to ensure that a case is prosecuted to its fullest? MR CELE yes, that's correct. MR PANDAY Right. MR CELE Another thing - let me just clarify this. I made this statement recently and at that time we already had a docket. MR PANDAY Yes. Well the statement was made last week, so you would have had the docket, ja. MR CELE Ja. MR PANDAY But now you go on to say that on the day in question when the deceased was robbed, he put up resistance and you go on to explain the situation. Now in paragraph 6, the investigating officer who investigated the criminal aspect of the matter, Insp R S Gwabasa. MR CELE Gwabasa. MR PANDAY Gwabasa, he's assisting in tracing Mr Mahlane who could possibly ... Now when you say you're tracing Mr Mahlane, was this for the TRC? MR CELE Yes, for the TRC. MR PANDAY Yes. MR CELE We couldn't find him initially, Mr Mahlane, because he changed his residence, so I had to get in contact with the investigator who used to visit him when he was investigating his case. MR PANDAY But now, what I'd also like to know ...(indistinct), how did you know that Lembede was a principal of a school? MR CELE This school was situated in our patrol area and his shop as well, so when we do our patrols and if we investigate something, we also go into the area and we know who is the teacher there and so on. MR PANDAY So would you say that you shared a relationship, not a close relationship, but a relationship where you were known to one another? MR CELE No there was no relation at all. Sometimes the school will get broken, you have to meet the principal to tell you what happened. MR PANDAY Yes, well I'm talking about that sort of relationship, I'm not talking ...(intervention) MR CELE Ja. MR PANDAY Yes. Now according to Sheila's evidence, Mr Elijah was a bit confused and apparently he answered questions that you put to him, explaining him that you knew about the incident. MR CELE Yes. MR PANDAY Is it possible ...(intervention) MS THABETHE Sorry, Mr Chair ... MR PANDAY May I just please complete ... MS THABETHE Sorry, can I correct something? It was her opinion, it wasn't a fact. MR PANDAY Is it possible that although you had not set out to intimidate Elijah, he himself may have for some reason as a result of this information you had, now felt that there was no political basis? MR CELE If he knows that, he was adamant of these things, that wouldn't in any way cause him to withdraw, he should just proceed. MR PANDAY And as an investigator, would you say your duties are to investigate TRC matters of the extent that it is brought before the Commission, or to an extent where it stops before it reaches the Commission? MR CELE You see, I didn't even direct this exactly to him, but I was just making aware the investigator what I knew and then what was going on, so if you know about something, it happens automatically that you talk about it, because I was free, we were talking very calmly and very friendly. MR PANDAY No, no, my question to you is now as an investigator for the TRC, would you say your duty is to ensure a matter reaches the Commission, or you will help assist in preventing it from reaching, not preventing in a malicious way, but to just save the Commission the time from hearing matters that would appear to be robbery? MR CELE Ja, but the duty is to ensure that the matter reaches the Commission, but we must be able to present to the Commission all the available information that you got during the investigation. MR PANDAY Yes, I accept that. Now when you were talking to Mr Elijah, did you pose questions to him to maintain his position that this may have been a political matter in his opinion still? MR CELE No, it had nothing to do with that, I was finding out some things to clarify his application. I had no interest whether he goes on or he gets amnesty, I did not have that sort of ... MR PANDAY Now do you not think from a position of being impartial it would have been advisable for you not to inform him as to what you knew in the incident? Wouldn't it have helped prepare the case for the TRC in a much more efficient manner and proper manner? MR CELE Ja, but I didn't take it into that light so much, because I had no intention to make him not to go on with his application whatsoever. MR PANDAY I understand that it may not have been your intention, but as a result of your actions what he perceived. MR CELE Well I don't know why did he perceive that in that way, if he knows that he was - I don't mind about his application, he would have just gone on. It's not my duty to make him to withdraw his application. MR PANDAY Mr Cele, would I be correct in assuming that the detectives from the Isipingo police station investigated the matter of Mr Lembede? MR CELE Yes, you're right. MR PANDAY You are from Isipingo police station? MR CELE Yes. MR PANDAY And this fact was made known to Mr Elijah that you at the time were a policeman in the station? MR CELE Yes. MR PANDAY So you would have told him that: "At the time I was a policeman investigating Isipingo police station, I know of this matter"? MR CELE Yes. MR PANDAY Now as I say, you may have not set out intently to intimidate him, but by virtue of all of this, this he may have felt. MR CELE But I don't see it in any way intimidating, that that's intimidating a person. MR PANDAY Okay. Thank you. NO FURTHER QUESTIONS BY MR PANDAY MS REDDY Could I just ask one question that I think is of importance? FURTHER CROSS-EXAMINATION BY MS REDDY In your opinion, or rather I should just ask you, is the onus upon an investigating officer assigned to the TRC, to bring to the applicant's notice that they have insight to the matter at hand? MR CELE Can you just repeat your question, Madam? MS REDDY Okay. You actually told Elijah Nyawuza that you knew about the incident? MR CELE Yes. MS REDDY Right. Now what I'm actually asking you, is there an onus upon you to actually inform the applicant that you knew about the matter? MR CELE Yes, I was finding out because as I said earlier, the object of investigation, if you investigate any matter, is to uncover the truth, to get to the truth, what happened. MS REDDY So in other words, you are confirming with me that there's nothing amiss when you told Elijah Nyawuza that you knew about the incident in question? MR CELE Yes. MS REDDY Thank you. NO FURTHER QUESTIONS BY MS REDDY FURTHER CROSS-EXAMINATION BY MR PANDAY Sorry just one. Mr Cele, isn't it correct that your job as the investigator is to obtain evidence and put before the Amnesty Commission and it is there where the truth will be uncovered? MR CELE No as Investigator, I'm going to bring all the information that I've obtained to the Commission, so it's for me to know as well. MR PANDAY Thank you. NO FURTHER QUESTIONS BY MR PANDAY CHAIRPERSON Talking of bringing everything to the Commission, I see in your affidavit, you go on to say, it was not read "On the day in question when the deceased was robbed, he put up resistance and was shot. The culprits were disturbed by a large number of people who were drinking within the shop premises and the culprits escaped without obtaining anything." Now there has not been one word mentioned of there having been a large number of people drinking in the shop premises. It would have been extremely relevant, wouldn't it, to have people like that to tell us what happened? MR CELE Well Mr Chair, that was an opinion as I was receiving and also receiving information because I wasn't actually there, but these home shops, normally the people buy liquor and drink outside the shop, that's what I was told that there were people also drinking in the shop. CHAIRPERSON Who told you this? The investigating officer? MR CELE Yes, Sir. CHAIRPERSON Well, couldn't one find out from him if he had such information? MR CELE Yes, Mr Chair, he is here. CHAIRPERSON Thank you. Right ...(indistinct - mike not on) MS THABETHE Yes. I don't know whether Mr Chair wants the investigating officer to confirm or he can confirm. Is it necessary? CHAIRPERSON It's something that should have been done, I think before so the questions could be put to the witnesses and the applicants when they gave evidence. MS THABETHE Okay. CHAIRPERSON I don't suppose ...(indistinct - mike not on). I in fact asked one of his sons who said they did not have ..., they were not ... MS REDDY That is the position. JUDGE POTGIETER Done, Ms Thabethe? MS THABETHE Yes, I'm done Mr Chair. NO RE-EXAMINATION BY MS THABETHE WITNESS EXCUSED JUDGE POTGIETER So it's back to Mr Mahlane. MS REDDY Mr Chairperson, I had no questions left for the witness. I don't know ... JUDGE POTGIETER Yes Mr Mahlane, you are reminded that you are still under oath. ERNEST SIPHO MAHLANE (s.u.o.) MR PANDAY Thank you Mr Chairman, if I may proceed? CROSS-EXAMINATION BY MR PANDAY Mr Mahlane, is it correct that you were also known as Mbambo? MR MAHLANE Yes. MR PANDAY Do you mind if I refer to you as Mr Mbambo? MR MAHLANE No. MR PANDAY Now Mr Mbambo, you testified now by saying that the applicants had approached you twice for obtaining information to commit the robbery, is that correct? MR MAHLANE That's correct. MR PANDAY Now the first time they approached you, can you recall when it was? MR MAHLANE I cannot recall. It was during the week, either on a Tuesday or Wednesday. MR PANDAY That will be clearly before the day in question when the shop was robbed? MR MAHLANE That's correct. MR PANDAY Then you went on to testify that on the day in question you had returned from work and you met them under the tree drinking beer, as I recall it. MR MAHLANE They were in a vehicle drinking beer. MR PANDAY And then you had gone home, left your parcels you had with you and returned to the shebeen to have beer. MR MAHLANE I spoke to them before I went home. MR PANDAY Yes and then I went home to drop my groceries. As I was still at home, Mkhize came and told me to hurry up. I then went to the shebeen and as I was still drinking my first beer, Philbert came in and that is when we left. MR PANDAY Right. So that will be the second time that you had knowledge that they needed information to rob shops in the area? MR MAHLANE On the second day they came to pick me up, not that they wanted information. MR PANDAY So would I be correct assuming that you already had prior knowledge that these guys wanted to commit a robbery? MR MAHLANE Yes, I did have that information. MR PANDAY And now when Philbert came and fetched you from the shebeen, you went with Philbert, there were no problems? INTERPRETER Please repeat that question. MR PANDAY When Philbert fetched you from the shebeen and asked you to hurry up, you went freely, there were no problems with going with Philbert? MR MAHLANE It was not voluntarily because he had a firearm. I knew that if I refused, I would be in trouble. ADV SANDI Who was doing most of the talking, if there was such a person at all amongst the applicants? MR MAHLANE At what point? ADV SANDI During all these occasions they were trying to persuade you that you accompany them to Ngonyameni. Who appeared to be the ... MR MAHLANE As I explained earlier, on the first occasion it was Francis Meyiwa, Ndimande and Bobs, who came to me. The person who inquired about the number of shops was Meyiwa, but it was Mr Lembede's shop that was targeted because he said he knew Mr Lembede. MR PANDAY Right, may I proceed? Now on the first occasion when they asked you about giving them information about the robbery, you did not want to take part, is that correct? MR MAHLANE That's correct. MR PANDAY Right. Now in the shebeen when Philbert came to you, you said he had a weapons. JUDGE POTGIETER Call him Ndimande, because otherwise we're all going to be confused, we're already calling him Mbambo. MR PANDAY Okay, sorry Mr Chair. Mr Mbambo, when Ndimande came into the shebeen and asked you to hurry up, you mentioned that he had a gun, but did he threaten you in any way with this gun? MR MAHLANE Even though he did not do anything, he gave me an impression that if I refuse, something was going to happen to me. MR PANDAY And prior, when you refused the first time, you didn't get the impression that something was going to happen to you? MR MAHLANE On the first occasion they inquired about the number of shops at Ngonyameni and I told them and then they said - in fact Mr Meyiwa said that he decided to target Mr Lembede's shop. MR PANDAY Now you say they wanted to target Mr Lembede's shop, but they did not know where Mr Lembede's shop is, correct, according to your evidence? MR MAHLANE Yes, they did not know the shop and they did not know the route that went through the township. MR PANDAY Now would I be correct in assuming that these gentlemen did not live in the Ngonyameni area? MR MAHLANE No. MR PANDAY And it was only you that would have known of Mr Lembede's shop and as to where it was? MR MAHLANE Yes, I know it because I used to reside there. MR PANDAY Right, now don't you think it's a bit strange that someone would want to rob Mr Lembede's shop, but not know where Mr Lembede's shop is? MR MAHLANE I first explained how many shops there were. I mentioned all the shops that were situated in Ngonyameni. They knew Mr Lembede. MR PANDAY Now do you know how they knew Mr Lembede? MR MAHLANE They were from the same rural area, Umbumbulu. MR PANDAY Now if they were from the same rural area, wouldn't they have known? If they knew Mr Lembede, surely they'd have known at least Mr Lembede's house or his shop? MR MAHLANE I mentioned earlier that they knew that there was a shop, but they did not know the route to the shop and also for the fact that there were many shops in Ngonyameni. CHAIRPERSON Haven't we had evidence that he in fact lived in Umbumbulu? MR PANDAY The witness. CHAIRPERSON No, Lembede and that he had another shop there that had been destroyed and he was renovating? MR PANDAY I think that's ...(indistinct) CHAIRPERSON So people from Umbumbulu would have known this man who had more than one shop. MR PANDAY Right. Sorry Mr Mbambo, you were saying that you had to show them the shortcut to the shop. MR MAHLANE It was not a shortcut, but it was a route that would not take them past Isipingo because their car was not in good order. MR PANDAY Now, we have a situation where these people know Mr Lembede and they want to rob Mr Lembede's shop and you're the only one that knew of the shop. Now do you recall giving a statement to the police when this incident occurred? MR MAHLANE Yes, I do recall. MR PANDAY Now in your statement, you mentioned the following with regards to how you came to know of the robbery. Page 127. Now this is what you say in your statement, right. The second line from the bottom, Mr Chairman. "I asked them what they want at Ngonyameni. Nyawuza told me that they were going for money at a certain shop." Now this was when you were already in the car. You were leaving for Ngonyameni, is that correct? MR MAHLANE Yes. MR PANDAY Now before this, you were giving us a different version. According to your version today, you knew of the robbery before you left for Ngonyameni. MR MAHLANE I had to start at the beginning when I related my story here, that is when they questioned me the first instant on the shops, so that when they came to me and we were leaving for Ngonyameni on Friday and I was given a balaclava in the car, I asked them what we were going to do in Ngonyameni and that is when they informed me of their intention. MR PANDAY Mr Mbambo, I asked you clearly about the two occasions and your knowledge of there being a robbery. I asked you that specifically because it was a direct contradiction in your statement. In your statement you attempted to distance yourself from this incident and today you are actually telling us that you knew that there was going to be a robbery. MR MAHLANE If I was distancing myself, I would not have been arrested, but that was not the case. MR PANDAY Yes, you were arrested and you stood trial, isn't that correct, Mr Mbambo? MR MAHLANE That's correct. MR PANDAY And you were acquitted in your trial? MR MAHLANE Yes, I stood trial until the end and at the end of the trial, I was acquitted. MR PANDAY Yes. What was your defence in your matter at the trial? MR MAHLANE My defence? I just responded to questions that were put to me. MR PANDAY No, you raised a defence. Did you not tell the Court that you were forced and you were under duress in this matter? MR MAHLANE Yes, I did explain that in Court and another witness also did the same. MR PANDAY So you did not just answer questions, you tried to show why you were innocent in this matter. MR MAHLANE Yes, I was innocent because I had no intention. I was from work. MR PANDAY Yes, what else? You say you had no intention. So you are not innocent because you were not forced? MR MAHLANE I was forced. MR PANDAY Yes. What other sort of force did these applicants use on you? MR MAHLANE I explained earlier on how dangerous these persons were, so when this happened, I was under the impression that I would also be in trouble. I saw that they were carrying firearms. MR PANDAY And before this, did they in any way threaten you or force you, hit you? MR MAHLANE No, not at the time. MR PANDAY Did they hit you any time, or at any time? MR MAHLANE I was once assaulted although for a different incident. MR PANDAY Yes. By whom were you assaulted for a different incident? MR MAHLANE It was Mr Mthambo and his committee including Mr Nyawuza and his kangaroo court. MR PANDAY ... Mr Nyawuza you're referring to? MR MAHLANE Nkosinati's father. MR PANDAY Yes and wasn't that assault as a result of a disciplinary measure for something you had done to a person with the name of Biela? MR MAHLANE That was correct. MR PANDAY Now on page 79 of the judgment of the original bundle, at line 10, the line thereafter, line 11, the Judge makes reference to "As accused number one did with receiving lashing that caused him to lose consciousness." Now is this the lashing you received for Biela? MR MAHLANE That's correct. MR PANDAY Now were you trying in Court at that time to give the Judge the impression that the applicants had lashed you? MR MAHLANE I was trying to impress on the Judge that there was no relation between myself and them. Whatever I had done was out of coercion. MR PANDAY Yes. Weren't you also trying to impress upon the Judge by saying this lashing was part of the coercion? MR MAHLANE Yes, I was also afraid. I was still afraid because of that horrible experience. MR PANDAY Yes, but isn't it correct that horrible experience was as a result of Mr Mthambo's actions? MR MAHLANE No, he was not alone, he was with his committee because when I was fetched, it was more than fifty people who did so and I was given about 200 lashes until I lost consciousness. MR PANDAY Sorry, you refer to a committee, what kind of a committee was this? Did it have a name? MR MAHLANE I do not know, but it was a group of people that were with Mr Mthambo, that's why I call them a committee. MR PANDAY Now, is it correct when you were arrested, you, Elijah Nyawuza, Philbert Ndimande, Francis Meyiwa and Emanuel Nkosinati Nyawuza were arrested for this offence. MR MAHLANE When I was arrested it was Philbert who came with the police from Pietermaritzburg, I do not know how the others were arrested. MR PANDAY And when you appeared in Court, you appeared in Court with Ndimande and Meyiwa? MR MAHLANE Please repeat that. MR PANDAY When you appeared in Court for your case, you appeared, Ndimande appeared and Meyiwa? MR MAHLANE I think that's correct. MR PANDAY That is why I say, when you talk about lashing on page 79, you are implicating Ndimande and Meyiwa and the rest of them. Do you care to answer that Mr Mbambo? MR MAHLANE I did not hear the question. MR PANDAY On page 79 when you wanted the Court to believe that you were forced to commit this offence and you received lashings, you wanted the Court to believe that the other accused had actually forced you. CHAIRPERSON It does not say in the judgment that he received lashings on this occasion. MR PANDAY Not on this occasion when the robbery was committed Mr Chairman. CHAIRPERSON No. MR PANDAY I accept that. MS REDDY Mr Chairperson, could I just ask my learned colleague what's the significance in this line of questioning? MR PANDAY That we're trying to show, Mr Chairman, that the applicant is actually lying before the Commission today, the witness, he's already lied on his version about his knowledge of the robbery, he's tried to distance himself from the outset of this matter and as such, he's not too credible before this Committee. MS REDDY So in what sense does the lashing have any perspective to this application? MR PANDAY The witness was creating a background in Court as to justifying the defence that he raised of duress and goes on talking about his experiences in relation to the accused. May I proceed, Mr Chairman? CHAIRPERSON It appears to me, reading the judgment, that the Judge was referring to the general conditions existing in those troubled times and not suggesting that the pressure was put on the accused, on the witness by these people. That was the type of pressure people were under in the townships at the time. MR PANDAY I stand to be corrected Mr Chairman. MS REDDY Mr Chairperson, probably my learned colleague could rephrase that question and we if may get to the end of this line of questioning. MR PANDAY Now, Mr Mbambo, did you plan this robbery in any way? MR MAHLANE As I stated earlier on, I had no intentions of committing robbery because I was employed and I was well-paid. MR PANDAY Now Mr Joshua Cele that say here, the investigator, he's deposed to an affidavit where he mentions that you and the applicants had pre-planned to rob the deceased's shop. Do you have any idea how he would get such information? MR MAHLANE Perhaps he should explain it because I do not know about it. ADV SANDI But didn't it - wasn't it clear from the evidence of Mr Cele that he was actually talking hearsay? MR PANDAY I concede that Mr Chairman, my apologies. Now just a few aspects I was confused about. Now you mentioned that you were walking back and you saw the car drive past fast and you jumped in. Where were you walking from when you all had gone to Mr Lembede's shop? MR MAHLANE It was at the time when they had gone into the shop and thereafter I heard gunshots. Nyawuza then drove closer to the shop and I went on foot along the road and they picked me up as I was walking along that road. MR PANDAY You see from the way I understand how you portray this incident is that you all went to the area where the shop was, the car stopped and one would have had to point the shop out. Would I be correct in assuming that? MR MAHLANE Yes. MR PANDAY Would I be also correct that you walked with the four others to the shop to show them the shop? MR MAHLANE No, I did not go into the shop, I only left them at the corner where the car was parked and I would not have gone to the show them somebody they knew. MR PANDAY Now where were you walking back to? If the car stopped, where were you going to walk back to? MR MAHLANE I wanted to get away, move away from the area because I heard shots going off. MR PANDAY Move away to which area? According to the evidence ...(intervention) MR MAHLANE I was going back. MR PANDAY To where? To your home? MR MAHLANE Yes, because at that time I did not know who was killing who. MR PANDAY Now, we were given to understand this area is about plus minus and hour's drive from Ngonyameni, from where the applicants lived and where Ngonyameni is, is plus minus an hour's drive. You were going to walk back? MR MAHLANE As I explained before, I was born and raised in the Ngonyameni area. My home is there, it's only my house that is at Nzamane. MR PANDAY Now did Mr Elijah not try and stop you from leaving the vehicle? MR MAHLANE I was not inside the vehicle, I was standing outside. MR PANDAY You were standing outside? MR MAHLANE Yes. MR PANDAY Right. Now you were standing outside, was the vehicle next to you when you were standing outside? MR MAHLANE I was leaning against it, yes. MR PANDAY Yes. Now is it correct that the gunshots went off when you heard it, when you heard the gunshots, you would have been still next to the motor vehicle? MR MAHLANE Yes, I was leaning against the vehicle and as Mr Nyawuza drove near to the shop, I went along the road, going back. MR PANDAY But why didn't you just jump in the car? You were at the car, where were you walking back from? You seem to be confusing your evidence. MR MAHLANE It just happened that I was standing outside. MR PANDAY Right. Now did Mr Nyawuza not stop you and ask you why you were walking away? MR MAHLANE No. MR PANDAY But yet you say to this Commission that you were forced and taken? MR MAHLANE I had completed the task that I had been asked to do. I had pointed out the shop to them. MR PANDAY So was your task to point out the shop and then walk back to where you lived? MR MAHLANE No, that's not what I said. I said, I had completed my task. What else would they have to force me to do because ultimately I returned with them at Nzamane and they dropped me off at Mangazi and said they were going to Ndwedwe. MR PANDAY Now, you see, all of the applicants' versions are actually quite straightforward. They received information from you, or rather Mr Mthambo received information from you that Mr Lembede is suspected of selling weapons or supplying weapons to the IFP. That is why they went out there to kill Mr Lembede. MR MAHLANE I have stated before this Committee that what they state is not true and it's a blue lie. MR PANDAY Now Mr Nkosinati Nyawuza states that you accompanied them, you pointed out Mr Lembede and then you walked and then they walked back with you to leave, walked back with you to get the others and you went back to the car and the shooting took place and you all got in the car and returned. Now there seems to be - your evidence doesn't seem to make any sense, you were walking back. I'm going to put to you that you are lying to this Commission that you were walking back to the area that you came from, that's plus minus one hour's drive you came from. CHAIRPERSON I understood he said he was born and brought up there, his home was there and that that was what he was walking to. MR PANDAY No, I understood, Mr Chairman ...(intervention) CHAIRPERSON That's not one hour's drive away. MR PANDAY Okay, were you going back to your home in Ngonyameni when you were walking back, as you say? MR MAHLANE It would have depended on what transport I could get. If I got transport, I would have gone back to Nzamane. If not, I would have slept at home in Ngonyameni. MR PANDAY And how far was your home from the shop, from Mr Lembede's shop? MR MAHLANE It's a short distance. I cannot estimate it in kilometres but it's walking distance. MR PANDAY Now Mr Mbambo, I suspect we can go on with your version and the applicants' version and we're going to get nowhere because you have your version and they have - I will finally put it to you that, based on the applicants' version, that you are not telling the truth before this Commission, you were actually in fact part of what went on and according to them, they received information that there was a supply of arms by Mr Lembede. MR MAHLANE I will not comment on something I did not state and if you chose to believe them, it is up to you. MR PANDAY Thank you. NO FURTHER QUESTIONS BY MR PANDAY CROSS-EXAMINATION BY MS MOHAMMED Thank you Mr Chairman. Mr Mbambo throughout your evidence you've said that the deceased, Mr Lembede, was your headmaster and I accept that. Would I be correct to say that he was a person that you respected and looked up to? MR MAHLANE Yes, I had great respect for him. MS MOHAMMED Now given the fact that you still had strong family ties in the Ngonyameni area, would it also be correct to say that the well-being of your principal mattered to you as a community member, as a shopkeeper in the area? MR MAHLANE I do not quite follow the question. MS MOHAMMED Mr Lembede, the deceased in this matter, he was a businessman in the area, you said you looked up to him, you respected him. Now does it also follow or is it correct to say that his well-being mattered to you? MR MAHLANE Yes. MS MOHAMMED Now it is all the applicants' version that they at no stage approached you to obtain information so that they may go there to rob the store, just so that there's no discrepancies later on. All the applicants deny having ever approached you to plan a robbery. MR MAHLANE I will not comment on that but I do not know what they are talking about. MS MOHAMMED Yes, Mr Mbambo, but I am following your version now, I'm putting this question to you on your own version, on the evidence that you have led to this Commission. Now when you say that the applicants had approached you to obtain knowledge about the Ngonyameni area and obtain details of shopkeepers and more particularly Mr Lembede's shop, did you not think it wise to contact people who were still in the Ngonyameni area and inform them as to what the applicants planned to do? MR MAHLANE Had I done that, perhaps I would not be alive today. MS MOHAMMED But why is that so? I understand - sorry, carry on. MR MAHLANE I have already explained that life was difficult at Nzamane because of these people. If they had known that I had gone to report them, I would also have been killed. MS MOHAMMED Yes, Mr Mbambo, I understand your version on the so-called reputation which the applicants had in the area. What I'm saying to you is that you had strong ties in the Ngonyameni area, you could have approached individuals in the area to tell them what had happened, or what these individuals planned to do, without them implicating you in the sense that they could have sent others to the shop to protect Mr Lembede. MR MAHLANE For the reason that they approached me, if it was discovered that that information had reached the people of Ngonyameni, I would be the only person that they would have suspected. I was fearing for my life. MS MOHAMMED Thank you Mr Mbambo. Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MS MOHAMMED ADV SANDI Just on the same point. Did you not fear for your life when you testified in Court against these people? MR MAHLANE I only testified in the Nyawuza matter and I will be fetched by the police from home and they will take me there. ADV SANDI In other words you had protection? MR MAHLANE Yes, because even Mr Mkhize who had been a witness in the other trial had been killed by that time. CHAIRPERSON Mkhize had been killed? MR MAHLANE Yes, he was dead. ADV SANDI Killed by who? MR MAHLANE I do not know, he died at Umbogintwini. ADV SANDI And had Mthambo been killed by that stage as well? MR MAHLANE He died thereafter in Nzamane. CHAIRPERSON Can I interrupt here? You say you only testified in the Nyawuza matter. That was where you were a State witness, but you also testified in your own trial, didn't you? MR MAHLANE I was not a State witness, but I just gave evidence about my role in the whole matter. MS THABETHE Thank you Mr Chair. CROSS-EXAMINATION BY MS THABETHE Mr Mahlane, I just want to know why did the applicants approach you and ask you to show them Lembede's shop? Why you specifically? MR MAHLANE I was close to them and I also had knowledge of that area. MS THABETHE Do you know why they targeted Lembede's shop as opposed to other shops? MR MAHLANE I do not know about that because Francis Meyiwa said they will target Lembede's shop, I do not know how they came to that decision. MS THABETHE Maybe let me just rephrase this. Were there other shops at Nzamane Reserve? MR MAHLANE There were tuck shops. MS THABETHE And I'm just trying to find out how it came ...(indistinct) was the target? INTERPRETER Please repeat that question. MS THABETHE ...information about that. JUDGE POTGIETER Can you just repeat your question? The interpreter's asking you to repeat that question. MS THABETHE Oh, okay. I'm just trying to find out how it came about that Lembede was targeted as a person whose shop was going to be robbed and would I be correct to say you don't have information about that? MR MAHLANE Yes. MS THABETHE Now, did you know that the applicants were going to rob the shop when they asked you to show them Lembede's shop? Did you know that they were going there to rob the shop? MR MAHLANE I heard or rather I knew about it the first time because Meyiwa said he should target Lembede because he was wealthy. Another reason why - I don't know why they targeted Lembede's shop because I mentioned four shops to them that were in the Ngonyameni area. Four. ADV SANDI Sorry. Did they mention anything about killing Mr Lembede? MR MAHLANE I only heard in the car as we were coming back that Ndimande had lost his firearm in the shop and that Mr Emanuel Nkosinati had been shot, but I had no knowledge before we went there. MS THABETHE Now at the trial, we understand Joseph Mkhize gave the same evidence that you did, that his evidence was consistent with yours. MR MAHLANE Yes. MS THABETHE Do you know why he did this? MR MAHLANE I do not know because Mr Mkhize had been with them when they came to fetch me. I do not know why he said what he said in Court. MS THABETHE Was he - I just want to establish was he closer maybe to you than to them? MR MAHLANE Mkhize was my neighbour, we're very close. MS THABETHE No, what I'm trying to find out is, was he friends with you more than maybe he was friends with the applicants? MR MAHLANE Mkhize used to work in Richards Bay. He did not live with us so he would be home for instance after 6 months. MS THABETHE Did the applicants dispute your version and Mkhize's version in Court, do you remember? MR MAHLANE No, they did not dispute anything. MS THABETHE My last question to you is, why do you think all the applicants have given evidence that number one, you provided them with information that Lembede was an IFP who was supplying arms to the ANC and secondly that you went to Mr Mthambo to report this, whereupon Mr Mthambo gave instructions, do you know why the applicants have given this version? MR MAHLANE In my opinion, they want to implicate me and also that they also want to be released from prison because I do not know anything about what they are saying. MS THABETHE Sorry, I've just forgotten one question. Did you know Andreas Mthetwa, who stayed at the Nzamane Reserve? MR MAHLANE I think I've forgotten him. I know him. MS THABETHE Who was he? MR MAHLANE I do not know him to have held a position, but I know him as a comrade. MS THABETHE What political organisation did he belong to? MR MAHLANE The ANC. MS THABETHE Mr Chair, I should direct this to you. I asked one of our investigators to quickly make an inquiry with regard to Mthambo and Ndimande because Mr Mahlane indicated that Ndimande was the leader and not Mudau and we phoned the Isipingo Branch or the investigator did and the information they got is that Mr Mthambo and Mr Ndimande were both not leaders of the ANC. CHAIRPERSON Were both? MS THABETHE Not, but they were perceived to be because people used to come to either of them to report problems they had in the community, that's why they were perceived to be leaders in the ANC. Also Bheki Msomi was also perceived to be a leader because people also came to him to report problems they had in the community and that the actual leader was Andreas Mthetwa. MR MAHLANE I do not know him or perhaps I forget him. I knew Mr Ndimande but I did not regard Mthambo as the leader. I know Bheki Msomi as a comrade, not as a leader. MS THABETHE But would you agree that people used to come to the three of them to report problems they had in the community? No I'm referring to Mthambo, Ndimande and Msomi. MR MAHLANE Yes, they did. MS THABETHE Thank you Mr Chair, I have no further questions. NO FURTHER QUESTIONS BY MS THABETHE RE-EXAMINATION BY MS REDDY What I actually need to do now is, let's just go back to the lashing. Remember my learned colleague Mr Panday asked you something concerning the lashing? MR MAHLANE Yes. MS REDDY And do you remember that you stated that you suffered at the hands of Mbambo and some committee that you had no name to? MR MAHLANE Hands of Mbambo? MS REDDY Yes. MR PANDAY Shouldn't it be Mr Mthambo, Mr Mbambo is the witness. MS REDDY It's Mr Mthambo, sorry. INTERPRETER Would you please repeat that? MS REDDY Alright. Does the witness actually recall stating to us that he suffered at the hands of Mthambo? MR MAHLANE Yes. MS REDDY Is the applicant, or was the applicant part of that Committee that you couldn't put a name to? Were the applicants part of that ...(indistinct - no sound) INTERPRETER Would you please repeat that? The sound just got cut off. MS REDDY Were the applicants part of the committee that you couldn't put a name to? MR PANDAY I think the representative's now leading the witness, I think. The witness has stated with full knowledge that so and so punished him and a committee. If he at any stage wanted to indicate that the applicant were part of the people that were at this, he knows them, he would have disclosed that to this Commission. MS REDDY Mr Chairperson, I beg to differ with that comment because according to my knowledge, my witness when I was leading him, said that he did suffer previously at the hands of the applicants and that is why he felt that if he didn't go along with them on the 21st of June 1991, then his life was in danger and I think it goes to the heart of the amnesty hearing today. MR PANDAY I think if my learned friend would put the incident that she refers to as opposed to leading on an unrelated incident, that would - I think if the question was better phrased that, did you suffer at the hands of the applicants and on which occasion did you suffer? MS REDDY The only reason I asked that question, Mr Panday was because you brought it up and it caused a little bit of confusion, so let me just ask the question and if you've got any comments you can make it after I've asked the question. JUDGE POTGIETER Please, can the two of you try to get reconciled? MS REDDY Okay, let me just proceed with the question. JUDGE POTGIETER Yes. Try not to lead him. Mr Panday's got a proper concern there in that regard. MS REDDY Alright, I concede. Mr Mbambo, did you suffer at the hands of the applicants prior to the 21st of June 1991? MR MAHLANE I suffered at the hands of two of the applicants and together with other people, there were many people, not all four of them. MS REDDY Let's just go back to the incident in question here. When you got to the area near the shop, there was a little bit of confusion relating to the facts. When you neared the shop, just tell us quickly what happened when you neared the shop. MR MAHLANE They alighted from the car and they started discussing about their plan. Nyawuza took a gun and gave it to Nkosinati, his son. Ndimande had his own gun. The others I couldn't see what weapons they had. MS REDDY Okay, just stop there. Could you just stop there? When you say they alighted from the car, did you also... When you say they alighted from the car, did you also alight the car? MR MAHLANE No, I didn't, I was still inside the car. MS REDDY At any stage did you alight the car? MR MAHLANE Yes, after they had gone and I leaned on the car. MS REDDY What happened at the point when you heard the gunshots? MR MAHLANE Nyawuza drove towards the shop, closer to the shop and I started walking back towards where we came from. MS REDDY When you mean where you came from, what are you actually telling us? MR MAHLANE Using the same route which we used going to the shop, I started walking back. MS REDDY No further questions. NO FURTHER QUESTIONS BY MS REDDY ADV SANDI Just explain one thing. On the Friday these people came to you, you have made mention of beer, what was the state they were in? Were they sober, drunk, what were they like? MR MAHLANE No, they were not because I only saw two quarts, two bottles. ADV SANDI Would I be correct to understand you to say that your understanding was that you were being given an order to accompany them to Ngonyameni? You were not being given a choice, is that what you are saying? MR MAHLANE On that day, I had no idea that it was the day where they will want me to accompany them to Ngonyameni because they had already mentioned this to me before, but on that day I had no knowledge that they were going to ask me to go with them. ADV SANDI It didn't sound to you as if you were being given a choice to go or not to go with them to Ngonyameni? MR MAHLANE I wanted to hide away from them, but then they found me and it was clear to me that I was forced to go with them. CHAIRPERSON They came along and told you to hurry up they were waiting for you. They were going and you had to go with them, didn't you? MR MAHLANE Yes Mkhize came to my home and after that I didn't go straight with Mkhize, I went to the shebeen and whilst I was there trying to drink my beer, Philbert came and told me to go. JUDGE POTGIETER You couldn't even finish the beer? MR MAHLANE Yes, I didn't, I left it there. MS REDDY That's the evidence for the victims. CHAIRPERSON Any other evidence? MS MOHAMMED No. ... (NO SOUND) MS THABETHE Very brief. CHAIRPERSON Sorry, can the prisoners be kept here a bit longer? ANSWER ...(indistinct - no microphone) CHAIRPERSON At 3 o'clock? JUDGE POTGIETER We can release them. CHAIRPERSON In that case I think we could release them now, I don't think it's necessary they stay here for the address. ANSWER Thank you very much. MS THABETHE Mr Chair. CHAIRPERSON Do you want to take them now? Should we adjourn for a minute to let you do so? MS THABETHE Please, Mr Chair. I would appreciate that. A minute. CHAIRPERSON I would like to place on record that we have day after day started late at these hearings, but the one thing I have noticed is that at 9 o'clock every morning, the prisoners have been sitting waiting for us to start and I would like to express my thanks and appreciation for the way they have been brought here and looked after. Thank you. Will you tell your authorities that? We'll take a very short adjournment now. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON I have officially obtained certain information which I would like to share with the rest of you and that is that on page 131, in the photograph at the bottom, the shop is on the left, behind the tree. The building on the right used to be a tea room but was then unused. MS THABETHE There are photographs from the docket as well, if anyone is interested. MICROPHONE TURNED OFF ON RESUMPTION MR PANDAY Yes very briefly. MR PANDAY IN ARGUMENT Honourable Committee, the applicant, Nkosinati Emanuel Nyawuza has given his evidence and has stated that the sole reason - if my learned friend Ms Thabethe will put her mike off, thank you - has given his evidence and sets out the reasons for having attacked Mr Lembede and that was obviously on the following of orders, based on information which was relayed to their leader Mr Mthambo that Mr Lembede was involved in the selling of arms to the IFP. As to whether or not Mr Lembede was actually involved, I will submit, that ought not to impact on the applicant's version as they were simply following instructions. They were following an order by a person they considered a leader and he may not have had an official recognition with the ANC as in a membership number, but the Evidence Leader has put before this Commission, he was considered as a leader in the informal sense and more importantly, the area being an ANC supportive area. Now, on the flip side is that we've heard evidence that would be to the contrary. The evidence of the sons, I submit, is not one that should be used in deciding as to whether their father was in fact a supplier of arms to the IFP or not, or a supporter of the IFP as the instruction received and that is what the applicant was following. Now the Commission, or the victim later called Mr Mahlane, better known to us as Mr Mbambo. Mr Mbambo was arrested for this offence. He raised a defence of duress and was acquitted for this offence. Now Mr Mbambo on his own version before this Commission, seems to lie as opposed to the version he had given in his statement to the Isipingo police, where he first indicated that he had no knowledge of this robbery only up until they were on their way to Ngonyameni, but in the evidence before the Commission he had already had prior knowledge and as such would be attempting to mislead this Commission to believe otherwise. Then we are left with the evidence of the grandson. Now the grandson, the only sort of damaging evidence that would come from the grandson is that he utters the words that he heard one of the applicants shout: "Where's the money? Where's the money?" No in so far as Nkosinati Emanuel Nyawuza's concerned, he has gone out there to carry out an order. These words did not come from him or in fact if they did come at all. According to Nkosinati Nyawuza's version, I would submit that he has made up a case for amnesty and his application should be given serious thought with the view to having it granted. Thank you Mr Chairman. JUDGE POTGIETER Well if the grandson's version is accepted, it means that this was a robbery. ...(indistinct) MR PANDAY That I accept, that can be a possibility and a problem, but as, according to Mr Nyawuza's version, there was no mention of a robbery. As to whether that may have changed subsequently, I do not have that version from him. JUDGE POTGIETER Yes. MR PANDAY Based on what he put forward, that this was the sole purpose that he had gone out there with the others. JUDGE POTGIETER Yes, of course. And then, as you've rightly said Mr Mahlane's evidence of course also presents a difficulty in the way of the applicants. MR PANDAY Mr Mahlane ...(intervention) JUDGE POTGIETER Mbambo, because if his evidence is true of course, then this was, as the evidence of the grandson, then would indicate it appears to have been a robbery. MR PANDAY If one has to uphold his evidence. Thank you. JUDGE POTGIETER Yes, thank you. MS MOHAMMED Thank you Mr Chairman. MS MOHAMMED IN ARGUMENT I just want to add briefly to what Mr Panday has said. It's submitted that this act of killing Mr Lembede, can in fact be viewed in one of two ways. Firstly as a purely clinical, hideous crime, as portrayed in the judgment and in any criminal sense of the word or alternatively as a deep-seated, albeit a badly planned political act. It's respectfully submitted that this incident is one of the latter and not the former. In assessing and finalising this application, it's submitted that the Committee must consider the background which existed at the time this incident took place. Although it was 1991, the ANC was unbanned by that stage, but we know people were still in want of freedom. To the people living in the areas like the applicants did, they had no real sense of freedom in the sense of what they wanted. the absence of any statement detailing the political aspects in the criminal matter is not surprising. These applicants were forced to remain as criminals and not as political activists. This Committee is well aware of other matters where people - where applicants were victims of forced criminalisation of an otherwise political act. Now the one aspect that I want to deal with is, during the course of evidence, my learned colleague Ms Reddy placed great store on the fact that no reconnaissance or intelligence work was done by any of the applicants and they merely acted on the say-so of Mthambo and Mbambo. In this respect, it's submitted that within the rank and file of ANC, operations were carried out mainly on a need-to-know basis. In fact, submissions that the ANC has put forward before the Truth Commission, does in fact bear this out. As put by one of the applicants, they were merely the foot soldiers and the fact that they were told this much about the incident, was in fact quite a lot. ADV SANDI Sorry, if I may just come in there. You are talking about the political context of conflict which existed in the KwaZulu Natal region at the time in question, but surely not all crimes committed during the course of that conflict automatically emanate from that political context. Isn't there an duty on the part of an applicant to show that the crime he committed, is related to the political context? Isn't there a duty for him to lay a foundation, a proper foundation for his case? We cannot simply assume that all crimes committed in KwaZulu Natal during that time, automatically had something to do with that conflict. MS MOHAMMED Yes, Honourable Member, I concede that not every act, not every crime which was committed during that period, is in fact a political basis. I also concede that there is a duty on the applicant to actually lay a foundation to substantiate his case. It's respectfully submitted that each of the applicants gave testimony to the effect that they subjectively believe the information that was placed before them that the deceased was in fact supplying these weapons. Of course it's up to the Committee to decide whether to accept Mbambo's evidence. CHAIRPERSON But the trouble is they say they collectively believed someone who denies having said it, who says: "I had no authority to say it". There has been no evidence led from anyone from there party to say yes, they would have taken instructions from him. MS MOHAMMED Yes, I concede that Judge, it is indeed a gap as it were in the evidence and I can understand the difficulty because in a sense it could become an insurmountable gap, however, it's submitted that the testimony of Mbambo clearly shows that there were aspects which reflect this element of his antagonism or animosity towards the applicants. He clearly said he disavowed Mthambo as a leader of the ANC in that area, after our learned colleague, the Evidence Leader, put to him that it has been confirmed that although, not in an official capacity, but Mthambo was in fact a leader of the ANC in the area, but Mr Mbambo clearly said that he didn't consider him to be a leader. In fact, I think he said Mthambo had dispossessed him of his house and things like that, so clearly there are some elements of his evidence which need to be weighed and consideration has to be given to that. I concede that. Thank you, I have nothing further. MS REDDY IN ARGUMENT Thank you Mr Chairperson. Mr Chairperson, Members of the Committee, audience, the difficult question that we're faced with today is can we really believe the version that we have heard from the applicants. It's common cause that I did cross-question the applicants on proof to show that they belonged to the ANC organisation. Except for Ndimande, the rest of the applicants failed to produce such documentary proof. I find it hard to reconcile that if the applicants had played an active role in the community, to safeguard them against attacks from the IFP, that they couldn't bring one single witness to corroborate that evidence, which would have given this Committee an easy task to decide, yes, amnesty should be given to them. Secondly, Mr Chairperson, you've heard evidence from the family of the deceased and it was quite obvious from what they informed us, that Mr Lembede, the deceased in the matter, was a feeble 62 year old man, who was a diabetic, who couldn't - who was not physically able to go from point A to B and he had to be transported to wherever he needed to go and they also stated that wherever he needed to go, he was in the company of one of the Lembede sons and they shared a close relationship and they showed us nothing or said nothing to suggest that yes, he had some connection with the IFP, or to suggest that yes, he did supply IFP with weapons. We have also heard the evidence of Mr Mahlane who led evidence to the extent that it was not - the motive of the killing was not politically interlined, it was one of robbery and that evidence was corroborated by Mr Edgar Mukungo who gave evidence to the extent that he heard words that said: "Take the money". The rest of the matter is left in the hands of the Committee. MS THABETHE IN ARGUMENT Thank you Mr Chair and Honourable Members of the Committee. I would like to submit that the crucial issues are number one, whether this act committed by the applicants was political or not and secondly, whether they have managed to make full disclosure in front of the Committee Members. On the first issue of political motive, I would submit to the Committee that the evidence of Edgar Mukungo be favourably considered by the Committee in that he stated clearly and unequivocally that the applicant demanded money. He not only stated this in his evidence today, it's the same evidence that was written on his statement in Court and he had maintained the same evidence in Court as well, so I would submit that the Committee consider his version. Secondly Mr Chair and Honourable Members of the Committee, as opposed to the applicants who, in Court, did not dispute Mbambo and Mkhize's version, but only later on came with this version about political motive and objective, Mbambo's evidence and that of Mkhize in so far as the motive of robbery is concerned, ties up very well with that of the grandson Mr Edgar Mukungo. Further Mr Chair, we have heard the evidence from the deceased's sons that their father was not an IFP member, that he was busy with his business. This ties up very well, Mr Chair I must say, not only with the grandson's evidence of Mr Mukungo, but that of Mr Mahlane and to some degree that of Mr Joseph Mkhize as well. I've heard my learned friends pointing out the negative attitude that Mr Mahlane or Mr Mbambo might have had towards the applicants but my question remains, what about Joseph Mkhize? What motive would he have had and what negative attitude would he have had to give consistent evidence as that that was given by Mbambo in Court? Further ...(intervention) ADV SANDI We didn't have the benefit of getting evidence from Mkhize. MS THABETHE Yes, even though it was put to the applicants as to why would they think that Mr Mkhize would have the consistent version as that of Mr Mahlane. It wasn't clear why they would think so because evidently Mr Mahlane and Mkhize were not buddies or they were not friends per se, that they might have been perceived to have come up with the same version after maybe discussions. Can I proceed? Further Mr Chair, on the issue of full disclosure, I can make one example. The applicants led the Committee to believe that they had left the shop because they had finished their job of assassinating their enemy, yet in the evidence of Mr Mukungo it became clear that they fled because Mr Mukungo had shot at one of them and that's why they decided to flee and not because they had assassinated, or rather they had fulfilled the objective that they had gone there to do. Based on these submissions, Mr Chair, I would also leave it in the capable hands of the Committee to make the proper decision, considering my submissions. Thank you. ADV SANDI So do you also accept that if the evidence of Mukungo and Mbambo is accepted, then it would be cadit quaestio for the matter, that will be the end of the matter, do you accept that? MS THABETHE I accept that. ADV SANDI I'm not saying that is the decision we are going to take at the end of the day, I'm just asking. MS THABETHE I accept that. Thank you Mr Chair and Honourable Members of the Committee that concludes. CHAIRPERSON One point I would like ...(mike turned off) One point I want to raise is that if there was, and I'm now going on evidence we heard at other hearings, which was very often to the effect that the ANC was desperately short of firearms because the IFP had semi-official or official forces, if this man was thought to be a supplier of firearms and it was an ANC act against him, wouldn't they, despite the fact that the firearms might be at home, have been more likely to have gone there so that they could not only do away with the deceased but obtain possession of whatever firearms might be available? MS REDDY Mr Chairperson, be that as it may, I understand what you said to me on the onset, but there was no evidence led by the applicants to suggest that that was the situation. The evidence, to my knowledge, was that Mr Lembede was supplying arms to the IFP, but they didn't tell us anything to suggest even remotely that there were guns that Mr Lembede had in his possession and they wanted to retrieve for their political reasons. CHAIRPERSON No, but if they wanted to kill him, it would probably be safer to kill him at home than in a crowded shop and you had the additional possible benefit, and I put it no higher than that, of perhaps getting some arms. MS THABETHE Mr Chair, may I respond as well to that? I think from previous hearings, especially regarding the ANC members, especially in KwaZulu Natal where most IFP members have claimed - or it's been alleged that they used to get firearms from like let's say the police and some other people, it would have made sense for them as ANC members not only to kill or assassinate the person in question, but also to try and recover those firearms, because as we know from before or the evidence before, ANC were always you know short of firearms and they could have made use. If they had lots of firearms, they could have sold them maybe, I don't know. JUDGE POTGIETER Yes, because the sons - they kill the father, but the sons can continue distributing the firearms. MIKE TURNED OFF - NO FURTHER RECORDING ON TAPE