--------------------------------------------------------------------------CHAIRPERSON: We are now proceeding to the application of Messrs Maqoko and Mjo, number AM0518/96 and AM2007/96.

Could the applicant’s legal advisor please put himself on record.

MR MAGQABI: As it pleases the Chair. Mr Chairman, I am V. Magqabi, I appear on behalf of both applicants.

If it may please the Honourable Committee, I propose that I deal with the application of the main applicant, which is Mr Mjo whereafter I proceed with Mr Maqoko, whose testimony will be largely to confirm that of the main, the first applicant Mr Mjo, to avoid duplication and for purposes of convenience.

Before I proceed Mr Chair, I would like to extend my gravest apologies for some typographical errors that will appear in the affidavit, particularly of Mr Mjo and I request that as we proceed, I respectfully draw the Committee's attention to those errors.

CHAIRPERSON: My first problem, wait a bit, that is the wrong way around, yes, I have got it, the bundle has Maqoko's on the front.

MR MAGQABI: Thank you Mr Chairman. May I then proceed, may then Mr Mjo be sworn in Mr Chairman, thank you.

ZWELENKOSI MJO: (sworn states)

EXAMINATION BY MR MAGQABI: Thank you very much Mr Chair. In leading Mr Mjo Mr Chairman, I will be going through his affidavit.

Sir, is it correct that you are the applicant in the incident of the killing of Joseph Sebatana on the 1st of January 1986?

MR MJO: Yes, that is correct sir.

MR MAGQABI: Just for the record Mr Chairperson, are you going to be testifying in English Mr Mjo, or are you going to be testifying in Xhosa?

MR MJO: I will testify in English.

MR MAGQABI: Very well. Is it correct sir that you are 41 years of age and that you were born on the 28th of May 1957?

MR MJO: That is correct sir.

MR MAGQABI: Is it further correct that you are a single father of a boy who was born in January 1984 and that you were born in Knysna?

MR MJO: Yes, that is correct sir.

MR MAGQABI: Further is it correct that you joined an organisation, a Youth Organisation in 1985 which was known as SAYO, which was an abbreviation for Sada Youth Organisation?

MR MJO: That is correct sir.

MR MAGQABI: Is it further correct that this organisation was an affiliate of UDF which in turn was a front of the African National Congress at the time whilst the ANC was banned?

MR MJO: That is correct sir.

MR MAGQABI: Further sir, do you confirm that the activities of your organisation were generally to carry out the policies and the instructions of the UDF and specifically to monitor and fight oppression that was perpetrated by the apartheid regime through the homeland system and that that oppression took various and varying forms which comprised inter alia detentions without trial, sadistic police tortures, elimination of fellow comrades, both permanently and inexplicable disappearances?

MR MJO: That is correct sir.

MR MAGQABI: And that in carrying out these atrocious deeds, the Tsebe regime which was the reigning apartheid tool at the time, solicited the assistance of some members of your community and used them as Police informers, who actively participated in stamping down the activities of your youth congress which if I may correct this Mr Chairman, is tirelessly in stead of timelessly, which was tirelessly and fearlessly resisting the suppression and utter disregard of human rights particularly in the then Ciskei?

MR MJO: That is correct sir.

MR MAGQABI: Further, in line with the spirit and instructions of your mother organisation, street committees were formed in order to facilitate something of a community orientated monitoring of discipline amongst the people of Sada and that that was because the existing government structures were not recognised as they were perceived to be legitimate?

MR MJO: That is correct sir.

MR MAGQABI: And that yourself and your co-applicant, Mr Maqoko seated next to you, were both members of the street committee and that you received a report that there had been a shooting which involved two brothers and Mr Chairman I request that it be a fullstop after that, and that know as - be deleted. Then a new sentence to begin with Remamba is the one that had fired the shot and he was known to the comrades by amongst others, if Mr Chairman it could kindly be included, myself and my co-applicant. In other words amongst other people who knew this fact, was Mr Mjo and his co-applicant.

Is that also correct sir?

MR MJO: That is correct sir.

MR MAGQABI: Is it further correct sir that Remamba was lured to a house at Madakeni also in Sada which was known as the dark house and that there he was interrogated and you assaulted him with sjamboks?

MR MJO: That is correct sir.

MR MAGQABI: And that you participated in the assault and that you assaulted him with a sjambok repeatedly and that the purpose of the assault was to cause him to say where the firearm was because it was a danger to the community?

MR MJO: That is correct sir.

MR MAGQABI: And that he, Remamba, initially denied any knowledge of it and later said it, meaning the firearm, was with a certain Joseph Sebatana, who is the deceased in this application?

MR MJO: That is correct sir.

MR MAGQABI: Is it further correct sir that you did not personally know the deceased, but that it was stated amongst the comrades that the deceased was another Police informer and they were known at the time as the vigilantes?

MR MJO: That is correct sir.

MR MAGQABI: And that sir, you were told that the deceased was a Zulu and that he formed part of the Zulu's who were Inkatha Freedom Party members and who were bussed in from Zululand to help the Police in their war against the freedom fighters?

MR MJO: That is correct.

MR MAGQABI: Do you further confirm that the deceased was accordingly fetched by yourself and your co-applicant, Mr Maqoko, that the deceased was fetched by yourself and Mr Maqoko, your co-applicant, but yourself and Mr Maqoko remained in the dark house and did not go to fetch the deceased?

MR MJO: That is correct sir.

MR MAGQABI: And that both Remamba and the deceased were severely assaulted with sjamboks and in the process they were asked about the firearms and that Remamba then mentioned and I beg the Committee's pardon here, it should say Mr Chairman, it was in the possession of his brother, Mzikaize. If the sentence may please end there, do you confirm that sir?

Mr Remamba then mentioned that it was in the possession of his brother Mr Mzikaize?

MR MJO: That is correct sir.

MR MAGQABI: And that at the dark house, Mzikaize mentioned that the firearm was available, but that it was at Emampondweni, which literally and here again Mr Chairman, it should be translated and not transmitted, means at Mpondoland and that during interrogation, the deceased had mentioned that what he had was a pellet gun?

MR MJO: That is correct.

MR MAGQABI: And further that he was then assaulted further because he would not say where it was and that it was then decided that the gentleman should be taken to a spot near the river because they were screaming and that would invite the attention of the Police? Is that correct?

MR MJO: That is correct sir.

MR MAGQABI: And further Mr Mjo, that at the river the assaults continued and particularly against the deceased and that it is difficult to say what every person used to assault the deceased, but you both used sjamboks to assault the deceased repeatedly and severely and that further the blows were inflicted both on the body and the head of the deceased indiscriminately?

MR MJO: That is correct sir.

MR MAGQABI: And further sir, that the deceased mentioned whilst he was being interrogated and assaulted in the dark house, that he had given the gun to one Nota who was also fetched and assaulted and that he also denied any knowledge of the gun and he was however, not assaulted seriously?

MR MJO: That is correct.

MR MAGQABI: Further that at the river the deceased mentioned that he had hidden the gun under his hi-fi set in his house and that some comrades were sent to look for it, but searched in vain?

MR MJO: That is correct sir.

MR MAGQABI: And further sir that the deceased then changed his version to say that he had hidden the gun underground next to the toilet of his house?

MR MJO: That is correct sir.

MR MAGQABI: And that this time, you all went with the deceased to his house but by this time, he must have been seriously injured, because he had to be carried by Remamba on the way and that he also did not find the gun after digging and you decided to disperse?

MR MJO: That is correct sir.

MR MAGQABI: And that on the following day, you heard that the deceased had died from the, and I beg the Committee's pardon, it should be the injuries, that had been inflicted by you on the previous day?

MR MJO: That is correct.

MR MAGQABI: And that you then approached his wife and asked her not to inform the Police that the deceased had died from your assaults, she should rather say that she picked him up next to the road, and she did not know his assailants?

MR MJO: That is correct sir.

MR MAGQABI: That you also tried to get the Undertaker to take the corpse without informing the Police, but he would not hear of it and insisted on the Police report?

MR MJO: That is correct sir.

MR MAGQABI: And that you later heard that your co-applicant had been arrested by the Police and you decided to flee to Queenstown in order to evade arrest?

MR MJO: That is correct sir.

MR MAGQABI: And that you were subsequently arrested, convicted and sentenced to death which sentence was later converted to 20 years plus one year, and that you have to date served 11 years of that sentence?

MR MJO: That is correct sir.

MR MAGQABI: Do you further confirm sir, that you once acted for a continuous period of eleven months as the Chairman of SAYO and that at the time of the incident, you were an ordinary Executive member of the same organisation?

MR MJO: That is correct sir.

MR MAGQABI: Do you further confirm that the purpose of assaulting the deceased and of course all the other vigilantes, should be was twofold Mr Chairman, to dispossess them of their lethal weapons which you believed were given to them by the Police namely the guns, and to punish them for aiding the enemy who were hell bend in crushing the people's resistance and legitimate war against apartheid?

MR MJO: That is correct sir.

MR MAGQABI: That sir, notwithstanding your conviction and failed appeal, it was never your direct intention to kill the deceased? That you however, admit that your actions were reckless as to whether he died or not?

MR MJO: That is correct sir.

MR MAGQABI: Do you further confirm that you pray that it may please the Commission to consider your application positively and that you did not commit the act elaborated here above for any personal gain or benefit?

MR MJO: That is correct sir.

MR MAGQABI: And that you were part and parcel of comradeship of the UDF who were executing the armed struggle and I request that the of there be omitted Mr Chairman.

Now sir, that you respectfully submit that your application complies with the requirements of the Act and that as a member of SAYO which was affiliated to UDF, you carried out instructions albeit tacit of the UDF, Mr Chairman, I am sorry and that you have made full and proper disclosure to the Committee?

MR MJO: That is correct sir.

MR MAGQABI: Sir, can you tell the Committee how you feel about your actions on the day in question, today as you sit here?

MR MJO: Well, I see my actions as brutal and according to myself, I find that I have done wrong, more than the people, but to God, because a person is an image of God so therefore I feel very sorry for what I have done.

MR MAGQABI: Sir, have you disclosed all the facts that took place on that day in question before this Honourable Committee?

MR MJO: As far as I can remember, I have disclosed.

MR MAGQABI: Mr Chairman, thank you very much, that will be all for Mr Mjo.

NO FURTHER QUESTIONS BY MR MAGQABI.

CHAIRPERSON: I take it the victims have been notified and there is no appearance for them today?

MR MAPOMA: Yes, Chairperson the victims have been notified and in fact they have faxed to us acknowledgement of receipt of our notices. I do have them with me.

CHAIRPERSON: Fine. Do you wish to ask any questions?

CROSS-EXAMINATION BY MR MAPOMA: Yes, sir. Mr Mjo, it would appear that the deceased was assaulted because there was a suspicion that he had a gun, would you tell the Committee what was the basis of that suspicion?

MR MJO: The suspicion that the accused had a gun, came from one of the people who shot his brother, the man was Mr Remamba, it was Remamba Matiwani.

CHAIRPERSON: What was the second name, Remamba?

MR MJO: Remamba, that is the name.

CHAIRPERSON: Only that name?

MR MAPOMA: Where was Remamba when you assaulted the deceased?

MR MJO: Remamba was also there.

MR MAPOMA: Was Remamba a member of any political organisation?

MR MJO: No, Remamba was not a member of any political organisation, but he was one who was shooting his brother.

ADV DE JAGER: Sorry, could you just make it clear, did Mr Remamba kill his own brother, or shot his own brother?

MR MJO: No, Remamba shot his brother, but missed him.

CHAIRPERSON: He shot at his brother?

MR MJO: He shot at his brother, yes.

ADV DE JAGER: And then this Mr Remamba who took a shot at his brother, informed you that Mr Sebatana had a gun?

MR MJO: Yes, it is Remamba who told us that Joseph Sebatana has got a gun.

ADV DE JAGER: Thank you.

MR MAPOMA: Is it the gun which he alleged that you have used when you were shooting at his brother, that you wanted to get from Sebatana?

MR MJO: Yes, it was that gun.

MR MAPOMA: Mr Mjo, what political objective did you intend achieving by assaulting Mr Sebatana?

MR MJO: The thing which caused that Mr Sebatana to be brutally assaulted that way, it was alleged amongst the comrades in the dark house, that he is one of the Zulu's coming from Zululand, because he was - the way he was speaking, he was not speaking Xhosa that time, and there were some Zulu's that were there in that vicinity of Queenstown, helping the Police.

MR MAPOMA: In what way were those alleged Zulu's helping the Police?

MR MJO: These people during the unrest in Queenstown, they were amongst the Police who were harassing the comrades at Queenstown now, so ...

MR MAPOMA: Apart from what you heard from Remamba, did you have any other information about the deceased, the activities that you had just highlighted now?

MR MJO: As I have said that I don't know the deceased, but at the dark house, when he was brought there by some of the comrades, it was alleged that he is one of the vigilantes who were harassing comrades in that vicinity of Madakeni location.

So it is then that we started to know him.

MR MAPOMA: Now, I've got a difficulty here Mr Mjo, perhaps you can explain. My impression is that you assaulted Mr Sebatana because you suspected him of a pure criminal activity and yours was a pure criminal act in retaliation to that criminal activity. How do you explain that politically?

MR MJO: I can explain that in this way - as I was one of the members of the street committee then, our aim then was to see to these criminal activities that was being done in the location, the main cause now which led to the point that the man was killed, is that one meaning Mr Remamba, shot his brother, meaning that was the criminal activity.

We started to stop that and we wanted to confiscate the gun so that no action like this can happen again in our area.

MR MAPOMA: Would it not serve the purpose lawfully if you were to report him to the Police?

MR MJO: Well, during that time, the Police already ran away from the location because they were in fear of the comrades, because we took Police as illegitimate organs of the government.

There were no Police there and I even can go and report the matter to the Police, it will be now against the way of our thinking then.

MR MAPOMA: No, if you were to report the matter to the Police, you would not be informing to the Police as such because you would be taking a criminal who was acting against the community interest, to the Police?

MR MJO: I do understand what you are saying sir, but if you can care to understand the situation then, and how we were functioning, and the relationship between us and the Police, you will find that there were no point where we can go to the Police and report any matter.

MR MAPOMA: Are you saying you lost confidence to the Police's system at that time, period?

MR MJO: That is correct sir.

MR MAPOMA: Thank you, no further questions Mr Chairman.

NO FURTHER QUESTIONS BY MR MAPOMA.

RE-EXAMINATION BY MR MAGQABI: Other than that criminal element that sparked this whole incident, was there any political factor that gave rise to the assault that was perpetrated against the deceased?

MR MJO: As I have said that before that, before the accused was being fetched in that house, by the time his name was mentioned, one of the comrades in this dark house, mentioned that this Joseph Sebatana is one of the vigilantes created by the Police in that Madakeni location, so that is why I can put it that there is a spark of political connectation which led to the assault of the deceased.

MR MAGQABI: Thank you very much Mr Chairperson, that would be all.

NO FURTHER QUESTIONS BY MR MAGQABI.

CHAIRPERSON: I have one question which either your client or you can perhaps clear up for me. Who is Nota Elvis Dyani?

MR MJO: Nota is one of the chaps who was mentioned by the deceased, that he's got the pellet, but the pellet is by Nota.

CHAIRPERSON: You were convicted of assaulting him, were you?

MR MJO: Yes, I was convicted of assaulting him.

CHAIRPERSON: But you are not asking for amnesty?

MR MJO: On my part, I am asking for amnesty in all that I have done.

CHAIRPERSON: You haven't mentioned that assault in your application or in your subsequent affidavit, have you?

MR MJO: As far as I, if I understand clearly, there is a mention that assault was being done unto him, but not as the way it was done to the deceased.

CHAIRPERSON: Where is this mentioned?

MR MAGQABI: If I could respectfully refer the Chairperson to page 4 and paragraph 14 of Mr Mjo's affidavit.

CHAIRPERSON: There he says that he was not assaulted seriously. It is a very fleeting reference which says he was not assaulted seriously? Shouldn't he have dealt with it?

MR MAGQABI: Mr Chairperson, I have to concede that it certainly was also relevant. I have noticed that it is not in the application Mr Chairperson, I am not very sure if it will be appropriate to lead him on that, that is the applicant.

CHAIRPERSON: I see it is mentioned in the affidavit, it is perhaps being a bit technical, it was part and parcel of the same. If he can just confirm that in fact, Nota was also struck with a sjambok?

MR MJO: Yes, that is true, Nota was also assaulted with a sjambok, sir.

ADV DE JAGER: At the end of the assaults and thinking back about it now, do you think he really had the gun?

MR MJO: Sorry?

ADV DE JAGER: Do you think the deceased really had a gun?

MR MJO: No, when I am sitting and thinking, it came to me, it gave me a doubt that the deceased was having a gun really because all the places that he said where he placed the gun, when we go to those places, we didn't find the gun.

ADV DE JAGER: Do you think he only mentioned those places in order to avoid further assaults?

MR MJO: According to my thinking, yes.

ADV DE JAGER: Do you know whether in fact he came from Natal and whether he served as a member of the vigilantes?

MR MJO: Sorry?

ADV DE JAGER: Do you know whether he in fact came from Natal and whether he was a member of the vigilantes?

MR MJO: Even today there is a talk that he is coming from somewhere, but he is not somebody who is staying there, but there is a talk of that he was one of the vigilantes. It is still on, although we are in prison, so now I can't be sure whether that is it but as people are talking of it, that he was one, I have still got that.

CHAIRPERSON: If he was one of the vigilantes, he would have been issued with a gun by the Police wouldn't he?

MR MJO: He could be offered a gun, at the same time, he could not be offered a gun, he could be offered something else.

Some vigilantes who are being trained, who are being created by the Police, don't have guns but they beat people with sticks, sjamboks and all that.

CHAIRPERSON: The other factor that perhaps indicates that he wasn't temporarily there is he had a wife there, didn't he?

MR MJO: Sorry?

CHAIRPERSON: He had a wife there?

MR MJO: Yes, he have a wife. I don't know whether it is a wife or whether it is somebody who stay with him.

CHAIRPERSON: She was referred to as a wife during the trial, wasn't she?

MR MJO: Yes, she was referred to his wife.

CHAIRPERSON: Count 3 was in connection with her, that she was assaulted too?

MR MJO: The wife?

CHAIRPERSON: yes.

MR MJO: According to my understanding, no.

CHAIRPERSON: Wasn't it alleged in the charge sheet that paraffine was poured over her in the house?

MR MJO: Yes, there is a talk of paraffine, but not assault.

CHAIRPERSON: Yes. No well ...

ADV DE JAGER: Was there an attempt to set her on fire?

MR MJO: Yes, there was an attempt.

ADV DE JAGER: By whom?

MR MJO: By some of the people who were there, but I am not sure who was he because by the time, it was dark then.

CHAIRPERSON: Thank you.

WITNESS EXCUSED.

TRUTH AND RECONCILIATION COMMISSION

AMNESTY HEARING

DATE: 22ND JUNE 1998

NAME: NXAMLEKO MAQOKO - AM2007/96

DAY : 1

-------------------------------------------------------------------------ADV POTGIETER: Mr Maqoko, I think you must switch places and just switch that microphone on please. I am going to ask you to take the oath, so would you please stand.

NXAMLEKO MAQOKO: (sworn states)

EXAMINATION BY MR MAGQABI: Thank you very much Mr Chairman. Sir, do you confirm that you are the applicant in the killing of Mr Joseph Sebatana?

MR MAQOKO: Correct.

MR MAGQABI: Do you further confirm that you are 49 years of age and that you joined the organisation in 1985?

MR MAQOKO: That is correct.

MR MAGQABI: Do you further confirm Mr Maqoko, that you are married, but your wife deserted you after this incident which is the subject matter of this application and that you are fathering two children, one being 19 and the other being 11 years of age?

MR MAQOKO: That is correct.

MR MAGQABI: Do you further confirm that at the time of the incident, you were a member of SAYO, which was an affiliate of the UDF?

MR MAQOKO: That is correct.

MR MAGQABI: And that you confirm every allegation of fact that has been made by your co-applicant, Mr Mjo in his affidavit, which mentions and implicates you to be both true and correct?

MR MAQOKO: That is correct.

MR MAGQABI: And that you are aware that it will be an unnecessary duplication if you restate the whole incident in your affidavit once again, because you were together and your versions are identical?

MR MAQOKO: That is correct.

MR MAGQABI: Do you confirm that you are the one who went to call Mzimkulu and persuaded him to go to the dark house after he was mentioned by Remamba as being in possession of the firearm?

MR MAQOKO: That is correct.

MR MAGQABI: And that you further confirm that you participated in assaulting the deceased in that you assaulted him repeatedly with the sjambok both in the dark house and near the river?

MR MAQOKO: That is correct.

MR MAGQABI: And that you further want to mention that after the comrades failed to find the gun underground, next to the deceased's toilet, some comrades threatened to burn -I beg the Committee, it should be the deceased - yes, it is correct, the deceased alive and that at that stage you intervened and successfully dissuaded the comrades from burning the deceased.

MR MAQOKO: That is correct.

MR MAGQABI: That you associate yourself with all the motives of the attack as annunciated by your co-applicant in his affidavit which has been filed?

MR MAQOKO: That is correct.

MR MAGQABI: That you confirm that you did not carry out the act mentioned in your affidavit for any personal gain or benefit and that you also allude to the facts and circumstances which are relevant to this application and which have been mentioned by your co-applicant in his affidavit?

MR MAQOKO: Correct.

MR MAGQABI: And that you were also arrested, convicted and sentenced to death which sentence was converted to 20 years and a further sentence of three years and three months for this crime, and that you have also served 11 years of your jail sentence?

MR MAQOKO: That is correct.

MR MAGQABI: And that you also pray that it may please the Committee to grant you amnesty as you have made full disclosure and showed that your actions had a political motive?

MR MAQOKO: That is correct.

MR MAGQABI: And that you are aware that you have complied with the requirements of the Act?

MR MAQOKO: That is correct.

MR MAGQABI: Now can you Mr Maqoko tell the Committee how you feel about this incident, about your actions?

MR MAQOKO: I have come to ask for forgiveness for my actions because I took part in beating Joseph up and he lost his life consequently.

If the Committee could grant me amnesty and if his family could forgive me.

MR MAGQABI: Thank you Mr Chair, that would be all.

NO FURTHER QUESTIONS BY MR MAGQABI.

CROSS-EXAMINATION BY MR MAPOMA: Thank you. You are asking for amnesty because you took part in the assault of Mr Sebatana who ultimately died. Did you take part in the assault of Nota Elvis Dyani?

MR MAGQABI: He is not receiving the Xhosa version Mr Chairman. Is it number 2 Chairman?

MR MAPOMA: Did you take part in the assault of Mr Nota Elvis Dyani?

MR MAQOKO: Yes, I did assault him.

MR MAPOMA: With what?

MR MAQOKO: With a sjambok.

MR MAPOMA: How did Jane Nomkondu Fuzani get into the whole picture? Do you know Jane Fuzani?

MR MAQOKO: She is the wife of the deceased.

MR MAPOMA: Why did she happen to be assaulted too?

MR MAQOKO: They were asking for her husband's firearm. The comrades poured paraffine on her and I tried to stop him.

INTERPRETER: The applicant's microphone was off for a moment.

MR MAQOKO: I tried to stop the comrades as they were going to set her alight.

CHAIRPERSON: Is this what you are referring to in paragraph 6 of your affidavit where you said they threatened to burn the deceased alive, was it in fact the deceased's wife they threatened to burn?

MR MAQOKO: I did not say that they wanted to set alight the deceased. It is the wife of the deceased that they tried to set alight.

CHAIRPERSON: Are you seeking to amend paragraph 6 of the affidavit?

MR MAGQABI: Mr Chairman, I would humbly move for such an amendment, because quite clearly there was a misunderstanding between myself and my client in this regard.

CHAIRPERSON: Oh, it is the deceased's wife.

MR MAGQABI: It is the deceased's wife instead of the deceased, thank you.

MR MAPOMA: Did you yourself participate in the assault of the deceased's wife?

MR MAQOKO: No, I did not.

MR MAPOMA: Did you associate yourself with the actions of those who assaulted the deceased's wife?

MR MAQOKO: Yes, I did because I was present, but I did not assault the deceased's wife.

ADV DE JAGER: He dissuaded them according to his affidavit, so he didn't associate himself. At that stage I intervened and successfully dissuaded the comrades from burning the deceased's wife?

MR MAPOMA: No sir, I am not referring to the actual burning of her. I take it that she was assaulted before she was burned, an attempt to burn her was made? I was just referring to the actual assault.

Mr Chairman, I have no further questions, thank you sir.

NO FURTHER QUESTIONS BY MR MAPOMA.

CHAIRPERSON: Re-examination?

MR MAGQABI: No re-examination.

NO RE-EXAMINATION BY MR MAGQABI.

ADV DE JAGER: Why was Mr Nota assaulted?

MR MAQOKO: He said that his gun is with Nota.

INTERPRETER: The speaker keeps interfering with the microphone and it switches on and off, so we have a problem understanding what he is saying.

ADV DE JAGER: He wasn't assaulted because he was suspected of being a vigilante?

MR MAQOKO: Yes, but I did not know that he was a vigilante.

ADV DE JAGER: And the wife of the deceased, did anybody suspect her of being a vigilante?

MR MAQOKO: No, I did not hear any rumours like that.

ADV DE JAGER: You see, it seems to me as though Nota and the deceased's wife was assaulted because they didn't give any information about, or they couldn't give any information about the gun?

MR MAQOKO: Yes, he got beaten up because he said he did not know anything about the gun or the firearm of the deceased, but the deceased had said that he had the gun.

ADV DE JAGER: Could you then tell me what was your political motive in assaulting Mr Nota and the deceased's wife, what was the reason for assaulting them, politically? Or the political motivation or did it or didn't it have any relation to politics?

MR MAQOKO: When we were looking for the gun and asking Nota for the gun, Sebatana said that Nota had the gun but Nota denied this.

ADV DE JAGER: But the gun was - you wanted the gun because he committed a criminal offence with the gun by shooting at somebody?

MR MAQOKO: It is not Nota who shot with the gun.

ADV DE JAGER: No, okay but the deceased, he shot with - he handed it to Remamba?

MR MAQOKO: It is Remamba who ...

ADV DE JAGER: And the reason why you wanted the gun was because a criminal offence was committed with this gun?

MR MAQOKO: When Remamba had shot Mzikaize with this gun, the comrades reached a conclusion that this gun should be fetched from him, or confiscated.

ADV DE JAGER: Why did they want this gun to be confiscated?

MR MAQOKO: It is because he had tried to shoot at somebody.

ADV DE JAGER: But did it have any political motivation or was it only because he shot at somebody?

MR MAQOKO: At the time it was the comrades that were holding peace in the township, they did not want any Police to go into the township.

ADV DE JAGER: Yes, and you said that the Police were afraid of coming into the township at that stage, but if you could kindly assist me to tell us - I can understand if you said that the deceased was a vigilante, I could even understand that you were acting against him and hitting him because he was part of the enemy and you could even consider killing him because he was part of the enemy, but it seems as though that had nothing to do with the assaults on the other people?

MR MAQOKO: The problem with Nota is that the deceased said that Nota had his gun.

ADV DE JAGER: Right, and could you kindly tell us who ordered you to assault the deceased?

MR MAQOKO: It is the comrades that were present, but it was not the aim to assault anyone, we just wanted the gun. It happened then that assault took place.

ADV DE JAGER: But were you acting on the instructions of anybody when you hit him with the sjambok?

MR MAQOKO: There were no orders to assault Nota, but the comrades reached a conclusion on their own that they should assault Nota because he would not give the gun up.

ADV DE JAGER: But you say that the comrades reached the decision on their own.

MR MAQOKO: Yes, and I was part of that decision.

ADV DE JAGER: Yes, but then did the committee of the comrades instruct you or did you have a meeting of all the comrades who instructed you to assault him, how did it happen? Who were these comrades who instructed you?

MR MAQOKO: We were all there, it was dark, I could not see exactly who said it, but word did come out that Nota should be assaulted.

ADV DE JAGER: I can understand that you don't want to disclose the names of your friends and so on, but I can't really think that you didn't know who were present.

Do you know the names or don't you know?

MR MAQOKO: Because of the number of the people that were there, I can't know all of them off hand, but I remember that Vuyisile was there with me. Vuyisile was in the car when we went to fetch Nota, with me.

CHAIRPERSON: Thank you.

WITNESS EXCUSED.

MR MAGQABI: Thank you Mr Chairman, that will be the applicants' evidence.

CHAIRPERSON: Would you prefer to address us now or tomorrow morning?

MR MAGQABI: I will rather tomorrow morning Mr Chairman.

CHAIRPERSON: Can we start at nine o'clock tomorrow morning?

MR MAGQABI: Certainly Mr Chairman.

CHAIRPERSON: We will adjourn until nine o'clock tomorrow morning.

CHAIRPERSON: Before you start addressing us Mr Magqabi, I had occasion to look at the papers again yesterday and it struck me there was one aspect that ought to be clarified by your client. Do you have any objection to his giving evidence further?

MR MAGQABI: None whatsoever Mr Chairperson.

CHAIRPERSON: That is Mr Mjo.

ZWELENKOSI MJO: (still under oath)

CHAIRPERSON: I want to ask you a few questions arising from your affidavit. In your affidavit you talk of a shooting by Mr Remamba and how he was thereafter lured to the dark house, do you remember that?

MR MJO: Yes, I do.

CHAIRPERSON: And there you say he was interrogated and assaulted and after initially denying any knowledge of the firearm, he later said it was with Joseph Sebatana, the deceased, do you remember that?

MR MJO: Yes, I do.

CHAIRPERSON: And you then in your affidavit, in paragraph 11 said the deceased was then fetched to the dark house and both he and Mr Remamba was severely assaulted with sjamboks.

MR MJO: Yes, I do remember.

CHAIRPERSON: And Mr Remamba then said that it was in the possession of his brother, Mzikayise?

MR MJO: Yes, I do.

CHAIRPERSON: And the next paragraph you said at the dark house Mzikayise mentioned that the firearm was available but that it was at Emampondweni?

MR MJO: Yes, I do.

CHAIRPERSON: That was the firearm that you were looking for in connection with Mr Remamba's shooting?

MR MJO: Yes.

CHAIRPERSON: You then go on to say during interrogation, the deceased had mentioned that what he had was a pellet gun.

MR MJO: Yes.

CHAIRPERSON: What is a pellet gun?

MR MJO: A pellet gun is a gun used when you shoot birds, something like that.

CHAIRPERSON: It shoots small, soft lead pellets, doesn't it?

MR MJO: That is correct.

CHAIRPERSON: And for many years you did not require a licence to buy one?

MR MJO: That is true.

CHAIRPERSON: And it was no danger to human beings?

MR MJO: That is true.

CHAIRPERSON: So this was the gun that the deceased had. Why was he then assaulted further to say where it was?

MR MJO: The reason is this, as I have said yesterday, when his name was mentioned there in the dark house, before he was being fetched, there was one - between the comrades, who said he knew this Joseph Sebatana as one of the vigilantes who were harassing the comrades.

So now, when he mentioned that he has a pellet gun, we didn't come to an agreement with him because we were of the opinion that he was lying as we know that vigilante used to be given guns by the Police.

CHAIRPERSON: I thought you said sometimes they were given guns by the Police, sometimes they were given other weapons?

MR MJO: That is correct, I said so.

CHAIRPERSON: And he told you he had a pellet gun, you had no evidence that he had any other sort of firearm at all, had you?

MR MJO: When he said that he has a pellet gun, knowing at the same time that the Police used to give the vigilantes guns or sometimes not give them guns, it came to our understanding, our understanding that maybe by saying that he is having a pellet gun, he is lying to us, there is a real gun.

CHAIRPERSON: So it was just maybe there was a real gun?

MR MJO: Yes.

CHAIRPERSON: No other information, merely a suspicion that there might be one?

MR MJO: Yes, there was a suspicion that he may be having one and at the same time, the point that he is one of the vigilantes.

CHAIRPERSON: Yes, was he assaulted because he was a vigilante?

MR MJO: Yes.

CHAIRPERSON: Is that why you went on beating him with a sjambok, because he was a vigilante?

MR MJO: That is correct, but in addition is that we wanted to see where the pellet gun is, so that we can be sure that he is having a pellet gun instead of a gun.

CHAIRPERSON: I thought a moment ago you told me you thought he had been given another gun by the Police and not a pellet gun.

MR MJO: I didn't say he was given another gun by the Policemen.

CHAIRPERSON: You believed it?

MR MJO: Sorry?

CHAIRPERSON: I thought you said you came to - our understanding that maybe there was a real gun?

MR MJO: Yes, simply because he is a vigilante.

CHAIRPERSON: Was that why you continued assaulting him, it had nothing to do with the gun that Remamba had used?

MR MJO: Yes, I can say so.

CHAIRPERSON: Any questions? Are there any questions you wish to ask Mr Magqabi?

MR MAGQABI: Thank you Mr Chair, no questions, no re-examination.

NO FURTHER QUESTIONS BY MR MAGQABI.

CHAIRPERSON: Thank you.

WITNESS EXCUSED.

MR MAGQABI: May I then proceed Mr Chairman?

CHAIRPERSON: Right.

MR MAGQABI IN ARGUMENT: Thank you very much. Mr Chairperson, before I proceed with my argument in support of the two applicants' applications, there is an Exhibit that I would ask leave of the Chair, the honourable Committee, which is a letter from the ANC Provincial TRC desk, which I really found or rather acquired at a very late stage.

I trust that it - it merely confirms the membership of the two applicants and very briefly does give some input of the organisation.

CHAIRPERSON: Can we see it?

MR MAGQABI: I don't know if I should read it to the record perhaps Mr Chair?

CHAIRPERSON: It was attached to the affidavits.

MR MAGQABI: Is it, I just confirmed with my learned friend, he said it was not there. Very well, then Mr Chair, I will ...

MR MAPOMA: It was only on one copy Chairperson.

CHAIRPERSON: We've all got it.

MR MAGQABI: Mr Chairperson, as a point of departure, it is my submission that both applicants have ...

CHAIRPERSON: Sorry, before you begin, have you written out your argument?

MR MAGQABI: No, I haven't Mr Chair.

CHAIRPERSON: Oh.

MR MAGQABI: Unfortunately. It is my submission Mr Chair, that the two applicants have met the requirements of the Act, they have indeed met the trait of the requirements that of the (indistinct) of compliance, political objective and that of full disclosure.

It is my submission that dealing with the aspect of full disclosure, there can be no question about the fact that both applicants, both in their affidavits and orally here before the hearing, disclosed all the evidence that is contained in the judgement and that would have been led on trial. They indeed had nothing to hide and were quite clearly committed in taking the Committee into their confidence.

They were prepared to admit and concede to even sensitive and serious conclusions to the effect that they may have been wrong, they could have been tempted to insist to be adamant of the fact that their subjective beliefs at the time, were justified and they strongly believed that the deceased had the firearm.

But through Mr Mjo they are prepared to concede that they may have made a mistake. It is my most respectful submission Mr Chair that the conduct of the two applicants in this application, bears the very spirit and the underlying principles of this very process of truth and reconciliation process.

It is my submission that quite clearly there is nothing that they have left out in their disclosure and that it has to be accepted, I ask that it be accepted that they have complied with that percept.

There is obviously perhaps a more challenging aspect namely that of justifying or motivating for their act and offence that it had political objectives. Quite clearly Mr Chairman, this whole incident which forms the subject matter of this application, was sparked by a criminal element. There can be no question about that. Remamba having shot at his brother.

But the matter does not end there Mr Chairman. There comes into the picture the question of the identities of the people involved. The applicants knew Remamba or at least it was brought to their attention that he was a vigilante and at the time the comrades of whom the applicants formed part, were in a mission if I may, to fight against the Police who represented the apartheid regime at the time.

It is in their affidavits that the Police solicited assistance of other members of the community who came to be known as the vigilantes. So therefore as it were politically speaking they were at war with the vigilantes. Remamba represented that faction of the community.

The deceased's name came from Remamba, and it came to be known to them at that gathering with the comrades, that the deceased was another vigilante. They have testified that their subjective belief was further strengthened by the fact that the deceased was a Zulu and it was generally known if not perceived that there was a group of this Zulu's that were affiliated or associated with the Inkatha Freedom Party who were assisting the Police.

That made the deceased so to speak and generally speaking a some sort of a political target because his actions were counter revolutionary. It is so that the purpose of bringing the deceased to the so-called dark house, was to interrogate him for purposes of finding this gun, which gun was a threat not only to the two applicants, but they were a street committee which effectively had taken over the task of the Police who had failed them.

They were categorical in their testimony about the fact that, in fact it was a response to your direct question, that they had lost confidence in the Police.

It is my submission therefore that when the deceased was brought, initially the purpose and the motive of the assault was to forcefully cause him to surrender the firearm, but then quite clearly because it came out that he was a vigilante as well, then quite clearly the matter did not only end with the firearm that was being sought from him.

The fact that he was a vigilante, Mr Mjo has clearly in the questioning today, spelt out the fact that it had a factor. The question I submit respectfully, that must weigh with the Committee, is whether the assault on the deceased, the brutal assault on the deceased given the fact that they strongly believed that he was a vigilante, does that not conform to the definition of political connotations or did that not give the act, the criminal act a political complexion. It is my respectful submission that given the climate and circumstances of the time, there were many cases of this nature where Police informers were assaulted and sometimes killed.

It is my submission and I am sure the Committee would have dealt with these matters, that those matters fall within the parameters of political cases.

CHAIRPERSON: Isn't the problem here that neither of your clients as I recollect it and from my notes, are able to say who said the deceased was a vigilante, merely somebody said, they had no knowledge of the fact.

MR MAGQABI: That is correct, that is correct Mr Chair. And they advance a reason why they are unable to say who precisely said that because by definition if I may, the house was dark, it was called a dark house and there were many people there, but somebody did say that.

It is to be understood that during the climate of the time where the freedom fighters or the comrades were being so much infiltrated, back stabbed by their fellow comrades, the situation - it must be taken within the context of the situation - whereby no abundance of proof was necessary to come to a conclusion that a person was indeed such an informer.

It is my submission ...

CHAIRPERSON: That entitled you to kill him, is that what you are saying?

MR MAGQABI: Mr Chairman, I submit that no reason can entitle anybody to kill anybody and therefore my answer is no and I submit respectfully that it perhaps is not the approach whether they were justified to killing, but whether there was a political motive in the killing, and I submit respectfully that the fact that subjectively as it is, and perhaps with our benefit of hindsight and perhaps not only that, but objectively looking at it, a human life was lost. There was no evidence to be led that this man had informed on anybody or that he was seen with the Police.

But given the climate of the time, it is my submission that what has to be shown by the two applicants was that they believed the deceased to be a vigilante at the time that they perpetrated the offence.

Whether they were justified ...

CHAIRPERSON: The question I ask you, do you say, can you argue that they were justified because they believed a man was a vigilante, to beat him to death?

MR MAGQABI: Well, it would depend Mr Chairman ...

CHAIRPERSON: It was not the policy as I understand it, of the ANC? It has not been put forward in any of their submissions, has it?

MR MAGQABI: Not in so many words Mr Chairman, but if one has a look at the letter accompanying their application from the ANC, in the first place the ANC was not there, it was the UDF that was reigning at the time.

There was a tacit understanding that the forces that countered the revolution of the people, even if it was not said in so many words that they should be eliminated, but definitely it was part of the struggle against apartheid. It is my submission that eliminating the forces that assisted the apartheid regime, would conform to that broad strategy of the mother organisation.

Definitely it would not go to the level as street committees that you must do this when you meet an informer, but the fact that it was generally accepted that for instance if a Policeman were killed at the time, it is in the same line of understanding that the people who countered the revolution, had to be dealt with.

Therefore vigilantes within that context, it can safely be said that they were targets of the time, and therefore actions of the nature that the applicants committed, would there have the sanction of the ANC in the end.

It is my submission further ...

CHAIRPERSON: As I understand it, it was not their intention to kill him, they didn't kill him. The beat him and carried him home. Isn't that the position?

MR MAGQABI: The position Mr Chair is that the deceased died as a result of their - beating perpetrated by the two applicants amongst other people who beat him.

CHAIRPERSON: Yes. So it was not a question of killing a vigilante because he was a vigilante, it was a question of beating this man for a long period, different places to get information about a pellet gun?

MR MAGQABI: The motive the applicants have said in their affidavits, both the affidavits and orally under oath, that they had no direct intention to kill him, even as they were assaulting him. In other words they were not bent on killing a vigilante, but it was the reason for the assault.

In other words they did not go there to kill a vigilante, but it transpired that this man was a vigilante and this man has a gun. He has just testified that they also needed that gun. In other words the intension was not just to assault, it was twofold from what he says.

Both to dispossess him. They did not believe that he had a pellet gun although he said that is the only thing that he had. He had just testified that they thought he may have been lying.

CHAIRPERSON: Yes, but you see in his evidence yesterday he said the gun we wanted to get from Sebatana was the gun that Remamba had used to shoot at his brother.

That is what he said when he was cross-examined yesterday.

MR MAGQABI: That is correct.

CHAIRPERSON: Now he says no, we knew that wasn't the gun we wanted to get from him. We now think that he might have been given the gun by the Police so we wanted him to produce the pellet gun - a very different story isn't it?

MR MAGQABI: But if you look at the evidence in its entirety Mr Chair, you will notice that initially Remamba had said the gun was with Sebatana but subsequently he said it was with his brother, and his brother was brought.

That is only when it became clear that the gun indeed was not with Sebatana because the brother came to say that the gun was at Emampondweni. Therefore initially when the deceased was brought, the understanding was that he had Remamba's gun, but it later transpired that the gun was indeed at Emampondweni, it is Remamba's gun.

Therefore the deceased must have had another gun, not Remamba's gun. That was the understanding of the applicants. Therefore - and if the deceased associated with Remamba to such a point that he would - Remamba would implicate him to be having the gun, that must have further reinforced the applicants' perception that the deceased was indeed part of the vigilantes or why would they give each other guns.

ADV POTGIETER: Is it clear that Remamba was regarded as a vigilante, was that the point of departure?

MR MAGQABI: That was the point of departure in the first place.

ADV POTGIETER: So can we say that they associating the deceased with the firearm, would have been more credible from their perspective, because it is now within the realm of vigilantes?

MR MAGQABI: That is precisely my point Mr Chair.

CHAIRPERSON: Have you got a note at the beginning of his cross-examination? Didn't your client yesterday at the beginning of cross-examination say the suspicion that the deceased had a gun, came from Remamba who was not a member of any political organisation?

MR MAGQABI: The way I had it Mr Chair, because it was not my understanding, was that Remamba from the very word go, it is even in the affidavit, that Remamba was a vigilante.

CHAIRPERSON: (Indistinct)

MR MAGQABI: That would be - Remamba was known to the comrades -

CHAIRPERSON: It appears to be a general statement.

MR MAGQABI: Yes, but the way I remember it Mr Chair, it was mentioned during yesterday's testimony that Remamba was a vigilante, particularly by Mr Mjo and I am sure the record would bear me out.

Indeed he did say Remamba was no member of an organisation, in the same way as vigilantes really did not have an organisation, but I am certain that it was mentioned in yesterday's testimony that he was a vigilante.

ADV DE JAGER: I have looked through my notes, I can't find a note - I won't say it hadn't been said but I can't find the note and I can't remember him saying it.

CHAIRPERSON: Nor can I.

MR MAGQABI: Perhaps the tapes could assist us Mr Chairman, in that regard, because I am one hundred percent sure of that.

ADV DE JAGER: When it is retyped, I don't think it is - we will make a note of your clear recollection and we will take note of it.

MR MAGQABI: Thank you Mr Chairman.

MR MAPOMA: Excuse me Chair, excuse me sir, perhaps it would assist, from paragraph 8, 9, 10, it sets out the background, but if I may read out particularly the beginning of paragraph 10, it says I did not personally know the deceased, but it was stated amongst the comrades that the deceased was another informer and they were known as vigilantes.

They were known, that refers to the deceased and Remamba.

CHAIRPERSON: Doesn't it refer to informers, he was another informer and they were known, informers were known as vigilantes?

MR MAGQABI: It will seem to be, in fact it is a continuation from paragraph 9 actually Mr Chair. I assaulted him with a sjambok repeatedly, meaning Remamba. The purpose of the assault was to cause him to say where the firearm was because it was a danger to the community.

He initially denied any knowledge of it and later said it as with a certain Joseph Sebatana, the deceased. I did not personally know the deceased, but it was stated amongst the comrades that the deceased was another Police informer and they were known as the vigilantes.

I would think that that another would other than Remamba.

CHAIRPERSON: You are saying it was said specifically. You can draw all these sorts of inferences, but our recollection is that it was not said and we will check that when the record becomes available.

MR MAGQABI: Thank you Mr Chair. Mr Chairman, I will not take that matter any further save to say that with the applicants' knowledge of Remamba being a vigilante, and him mentioning the deceased. Of course I am being repetitive because I have already submitted that that is why - that is how it was reinforced the view that the deceased was also a vigilante, and of course that was not the only reason.

I have already submitted that in their subjective opinions the fact that he also spoke Zulu was another factor that weighed with them. Stupid as it may sound to us as we sit here, but that was the situation at the time.

It can safely be submitted that there were certainly not many Zulu's who stayed with them in their area, so therefore it was within that context that it served to reinforce their view that the deceased was indeed a vigilante.

ADV POTGIETER: Then it went a step further, that led to them disbelieving his allegation that what he had was a pellet gun?

MR MAGQABI: Precisely so Mr Chairperson. As he has also repeated it under oath today, that he did not believe that it was indeed a pellet gun because although the Police did not give all of them guns, but they did give some of them real guns, so therefore they still entertained that belief that he could be having a real gun with him and so the assault continued, with that objective in mind.

I submit respectfully that that objective certainly does have political undertones, and would and should therefore be accepted as falling within this element or requirement of a political objective.

I have already addressed the Committee on the aspect of the full disclosure and I submit in all the premises therefore that the two applicants are entitled to receive amnesty under the Act.

Thank you, that will be all Mr Chairman.

MR MAPOMA: Thank you sir, I have nothing to say.

ADV DE JAGER: So your submission is although there was no order given by any superiors, they committed this act because they believed that the deceased was an enemy of the liberation movement?

MR MAGQABI: Although there was no direct order, that is correct. That is correct and it is my submission that for it to be politically motivated, it is not a requirement per se but there must have been a direct order from their seniors.

ADV DE JAGER: Is your submission that it is only one of the elements that could be considered to decide whether a political, a specific act was politically motivated or associated with a political objective and that it is not a requirement as such?

MR MAGQABI: That is really my point Mr Chairman, it is not irrelevant but it is not a prerequisite. That is my submission precisely.

ADV DE JAGER: And even the approval isn't a prerequisite?

MR MAGQABI: Well, approval could take many forms. But I wouldn't think of any reason why something will be any less politically motivated because the leaders disapproved. I would think that it is politically motivated because the circumstances of the time, found a definition of it accordingly as a politically motivated act, I would think that it is another thing at all, it is another inquiry at all whether the organisation went along with it.

So long as the circumstances at the time justified it as a politically motivated act.

CHAIRPERSON: We will take time, we will now take a short adjournment prior to the next hearing.