ADV DE JAGER: Before we start, could I make a request. Could you kindly put counsel's name and attorney's names before them, at a later stage, so that the moment it sometimes slips your mind and you don't know whether it's Mr Jakobs or Mr Swanepoel.

CHAIRPERSON: Yes, we resume after a substantial adjournment in order to afford the legal representatives and others an opportunity to sort out a confusing state of affairs. I trust that that has been done.

In the meantime I understand that two of the mentioned victims have appointed counsel to attend to their interests in the matter and I understand also that the Inkatha Freedom Party has engaged him to look after their interest as well.

I want to point out that the Inkatha Freedom Party is entitled to have done what they did to look after their political interests. Membership of any particular political party does not as a matter of course, lead to the interest of individuals being covered. It remains for the individual to do what is necessary and give necessary instructions if that person so desires to get representation and give instructions for his or her interests to be attended to.

Mr Xaba, you will have noticed that Mr Swanepoel is now in attendance at this hearing. You mentioned Mr Msizi during your testimony when we last sat. I'm going to ask you a few questions in order to put him in a position to equate himself with the material issues of your testimony, do you understand that?

MR XABA: Yes, I do.

CHAIRPERSON: Now you did testify that you were a member of the ANC and South African Communist Party, correct?

MR XABA: Yes, that is correct.

CHAIRPERSON: And your application for amnesty entails two crimes, correct?

MR XABA: Which one, which crimes are you talking about?

CHAIRPERSON: Now I'm asking - you remember you said it involves two crimes. I will deal with that now. You said attempted murder and arson, correct?

MR XABA: Yes, that's correct.

CHAIRPERSON: You were in the company of three other people when you committed those crimes, Messrs Baloi, Majeko and I think it's Dlamini, is it?

MR XABA: The only people I've mentioned was Perry Dlamini, Jerry Maju, Bafana Baloi and then the others died.

CHAIRPERSON: You also said that no-one in fact gave you the orders to commit this crime or these crimes, you took your own initiative as a group.

MR XABA: Yes, that is what I said.

CHAIRPERSON: And you say you committed these crimes at Mandesa Street I think, in 1990.

MR XABA: Yes, that is correct.

CHAIRPERSON: And you said that the reason why you people did what you did was because Mr Msizi was seen to be a township councillor bringing hardship to the community?

MR XABA: Yes, that is correct.

CHAIRPERSON: Is there anything you want to add to that, anything to your testimony or are you done?

MR XABA: No, nothing.

MS PATEL: I'm sorry, Judge, if I may. According to my notes the applicant also stated that he was the leader.

CHAIRPERSON: ...(inaudible)

MR XABA: Yes, I've also mentioned that.

CHAIRPERSON: ...(inaudible)

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: Before I give anybody else a chance to ask questions, I'd just like to clarify certain issues. How did you burn this house?

MR XABA: We made petrol bombs. After we finished making them we went straight to Mr Mzizi's house. We started checking the situation and the police were not there. Usually they were there. Then we threw the petrol bombs and then we ran away.

CHAIRPERSON: I see. Now did it matter to you whether Mr Msizi died as a result of being burnt out in that house or what?

MR XABA: As I've already mentioned, Mr Msizi was one person who'd bring hardships in Thokoza and other people lost their houses because of him and that is why people were dying in Thokoza. Therefore if Msizi died in that house, it was a job accomplished.

CHAIRPERSON: And what about his wife, did you worry or did you concern yourself as to whether she died or what, or his children or anybody else?

MR XABA: What we were sure of was that we first looked around the house, there were no police, there were no children and his wife as well wasn't there. Msizi was the only person. His children were not there and his wife as well wasn't there.

CHAIRPERSON: Did the house burn down?

MR XABA: Yes, the house burnt but not everything.

CHAIRPERSON: And you testified that once you people threw the petrol bombs inside the house, you escaped?

MR XABA: Yes, that is correct.

ADV DE JAGER: At what time of the day or night was it?

MR XABA: It was at night, something about 9 o'clock, between 9 and half past nine.

ADV DE JAGER: Were there any lights burning in the house?

MR XABA: No, I can't say that. We just threw the petrol bombs and then we ran away, there was no time to check the damage. We left immediately.

ADV DE JAGER: But you said you've checked whether his wife and children were there.

MR XABA: Yes, that's correct. Before we work or before we do this kind of job, you first check whether the people are there or the children are there. So most of the time Mr Msizi didn't used to stay with his children, the children used to stay at Mandela section.

ADV DE JAGER: But now I've been asking you whether there was any light burning in the house, whether you could see, could you see whether his wife and children were there or couldn't you see in the house?

MR XABA: As I've already mentioned, I went there first to check before we could throw the bombs, and I checked, I discovered that the wife and the children were not in the house.

CHAIRPERSON: Could you see that inside the house?

MR XABA: Yes, I saw the children and the wife leaving at about 7 o'clock, Msizi accompanied them and came back.

CHAIRPERSON: But when you threw the bomb, did you know whether the children and the wife were in the house? It's about two and a half hours after.

MR XABA: As I've already mentioned, there are people in the same street who are watching Msizi's house, so I came earlier to check with them that, if the children and the wife came back. They told us that no, they didn't come back, only Msizi came back. So I knew exactly that he was alone in the house.

CHAIRPERSON: Mr Swanepoel, have you got any questions?

MR SWANEPOEL: If it pleases you, Mr Chairman, not at this stage. I would like to take instructions on what has just been said, and maybe return at a later stage with any questions but at this stage I have no instructions on questions.

CHAIRPERSON: Ms Patel, anything?

MS PATEL: No, thank you, Honourable Chairperson.

CHAIRPERSON: Re-examination?

MR MAKANJEE: No re-examination, thank you, Mr Chairman.

CHAIRPERSON: Mr Xaba, you are excused but will you please remain in attendance. We will tell you when you can go, because Mr Swanepoel may have questions for you. Do you understand?

MR XABA: Yes, I understand.

CHAIRPERSON: You're excused for the time being.

CHAIRPERSON: Can the next witness be called please.

MR SAMUELS: I call Meshack Thulo, application 7714/97.

ADV DE JAGER: 771?

MR SAMUELS: 4. It's volume two on the second page.

ADV DE JAGER: ...(inaudible)

MR SAMUELS: 266.

CHAIRPERSON: Mr Thulo, what language would you prefer to speak?

MR THULO: Sotho, Sir.

MESHACK TSEKO THULO: (sworn states)

CHAIRPERSON: Please be seated.

EXAMINATION BY MR SAMUELS: Mr Thulo, are you 27 years old?

MR THULO: Yes, that is correct.

MR SAMUELS: I see. What work do you do know?

MR THULO: I'm a business councillor.

MR SAMUELS: Are you a member of the ANC?

MR THULO: Yes, that is correct.

MR SAMUELS: And from 1990 until now, did you live in Thokoza?

MR THULO: Yes, I was born in Thokoza.

MR SAMUELS: Were you a member of an SDU?

MR THULO: That is correct.

MR SAMUELS: And who was your commander?

MR THULO: That is Chris Motokwe.

MR SAMUELS: You are applying for amnesty for two crimes, the first on is kidnapping and the second one is possession of ammunition, is that correct?

MR THULO: Yes, that is correct.

MR SAMUELS: Okay. Describe in your own words to the hearing, the kidnapping.

MR THULO: I don't remember the actual date of that particular incident of kidnapping. What I remember is that it was on the day when people from the hostel were going to bury their members ...(indistinct) to Polla Park.

CHAIRPERSON: You're going too quickly.

ADV MOTATA: I didn't hear the question.

CHAIRPERSON: You're going to fast and the interpreters have to keep up.

MR THULO: I don't remember the actual date but it was in 1993. It was when the hostel dwellers were going to bury on of their members. They were coming from the hostel direction.

They started to shoot from the tennis court in Thokoza ...(intervention)

CHAIRPERSON: Who shot from the tennis court, the funeral marchers?

MR THULO: I would say those people who were shooting we were not able to identify them.

CHAIRPERSON: No, what I - shots from the general direction of the tennis courts were discharged in which direction, to whom?

MR THULO: They were in houses next to the tennis court. We did not agree with them that they should pass through Khumalo Street when they were going to the cemetery.

CHAIRPERSON: Who were these shots directed at?

MR THULO: Those people who attended the funeral were those who were shot.

CHAIRPERSON: Ja, yes, carry on.

MR THULO: After that shooting I was from Extension 5 towards Beirut. We met Peter Sewasi. We were three in that car. It was myself, Siphiwe Galata and Linda Radebe.

CHAIRPERSON: ...(inaudible)

MR THULO: Linda Radebe. I was driving towards Polla Park looking for AK47 ammunition because I was ordered to go and buy those ammunitions. Linda Radebe who has since died saw Peter Sewasi, who is my co-applicant. They asked me that my car should be used. Peter was having a red headband like members of the IFP whom we were fighting with.

When he was put in the car, because police were many and the soldiers. We drove to Polla Park. When we arrived at Polla Park we found that there was a meeting of neighbours around Polla Park. We explained that we were afraid to take along one person who had a red band, in case the police and the soldiers saw us and seeing that person in our car.

I was driving a Kadette 1992 model. It was white in colour. Registration of that car is RRS674T. ...(intervention)

CHAIRPERSON: I don't understand, just hold on. This person with the red band, where did that person come from?

MR THULO: We found him immediately after those people who were shooting dispersed. Many things happened which he was implicated in those things around our area. When we took that person we wanted him to explain the neighbours of Unit F. Because there were people who disappeared, he was seen with people who were members of the hostel, who were staying in the hostel. We wanted him to come and explain as to whether what happened to those people who were kidnapped by hostel dwellers whom he was with at that time.

MR SAMUELS: Okay, Mr Thulo, ...(intervention)

ADV DE JAGER: Could you kindly explain, did he get into your car voluntarily or did you grab him, how did he land in your car?

MR THULO: We requested him to get inside the car but he wanted to run away, then we forced him inside the car.

MR SAMUELS: Now Mr Thulo, ...(intervention)

CHAIRPERSON: And what did you want him to explain?

MR THULO: He was involved in - there were allegations that he was involved in incidents of people who were kidnapped. Where I'm staying is near the hostel. When there were shootings he identified with Buyafuti's hostel dwellers.

He was again seen taking three boys who were just walking in the street around the township in Unit F. I don't know where they came from, but unfortunately they were stabbed with assegais by residents of Bhuyafuti hostel and he was present.

CHAIRPERSON: So you believed that he had associated himself with the commission of crimes?

MR THULO: Yes, that was my belief, Sir.

CHAIRPERSON: Now before I interrupted you you told us that you said to certain people that you were uncomfortable with taking this person into your car because he had a red band on.

MR THULO: Yes, that's what I said.

CHAIRPERSON: Please explain that to me, I don't follow that.

MR THULO: When we met with Peter, we met at Sheagwe. it's near Polla Park. When we took him inside the car we were afraid to pass through the township because the police and the soldiers were around that area. We took him to Polla Park where I was supposed to go and buy AK47 ammunition.

When we arrived there we saw people assembled in a meeting. It was near to a water tank next to Polla Park. When I explained to the meeting, because they saw me driving faster inside, we told them that we should take that person to Unit F because we were not protected and we were afraid that the police and soldiers would see us.

We wanted to leave him there and then we would return later when the police have left the township. I bought what I was supposed to buy. I left those ammunitions in Section F.

MR SAMUELS: Sorry, Mr Thulo, just on the point of the meeting, you say that you took Peter Sewasi to this meeting, did you leave him there?

MR THULO: Yes, I left him there.

CHAIRPERSON: ...(inaudible)

MR THULO: I left him there.

MR SAMUELS: And where did you go to?

MR THULO: I returned to Section F, after buying the AK ammunition.

MR SAMUELS: Did you have anything else to do with Peter Sewasi at that meeting?

MR THULO: I requested that I should leave him there.

MR SAMUELS: I see. Do you in fact know what happened to Peter Sewasi at that meeting after you left?

MR THULO: As I've already explained, I left them, I went to Unit F. When I returned to Polla Park later I found him dead. When I tried to find out as to what happened to him, they showed me where they burnt him.

CHAIRPERSON: Did you expect to see him alive when you got there?

MR THULO: Yes, I expected to find him alive, Sir.

CHAIRPERSON: I just want to know something here now, how much ammunition did you buy?

MR THULO: Between 1993 and 1994 I think I've bought plus-minus three thousand rounds.

CHAIRPERSON: I'm talking about that day.

MR THULO: I bought 250 rounds.

CHAIRPERSON: From whom?

MR THULO: There was a person who was selling ammunition. His name is Uys. We were calling each other by code names, so I did not know and I don't know his full names.

CHAIRPERSON: Do you know where he would have obtained these rounds?

MR THULO: It was difficult to find out as to where he got them from.

CHAIRPERSON: Is this source of ammunition still available in the area?

MR THULO: No, he has since died.

CHAIRPERSON: Is one able to unlawfully buy bullets in the area still?

MR THULO: Yes, we were able to buy them from Polla Park.

CHAIRPERSON: Where would this - where would the distributors of this illegal ammunition, where would they get it from?

MR THULO: As I've already explained, we met at safe places. I wouldn't be in a position to ask him questions about that because we were not trusting each other because there were people who were collaborating with the police and collecting information. That is why it was not possible to ask him where he found those ammunitions from.

CHAIRPERSON: Why would people need the ammunition now, after 1994?

MR THULO: Do you mean after 1994, Sir?

CHAIRPERSON: Ja.

MR THULO: I never bought those ammunitions after the elections.

CHAIRPERSON: No, I'm not saying you bought it, I'm just asking you, you told me that one is still able to buy unlawful ammunition or illegal ammunition, sorry. Do you know why people would still want to buy ammunition in this country today?

MR THULO: I am not able to account to that question, Sir.

CHAIRPERSON: Are you still a member of the ANC?

MR THULO: Yes, that is correct.

CHAIRPERSON: Do you hold any office in its hierarchy?

MR THULO: I am an ordinary member of the ANC.

CHAIRPERSON: Yes, carry on.

MR SAMUELS: And finally, Mr Thulo, did you know that it was illegal for you to possess these bullets at that time?

MR THULO: Yes, I knew.

MR SAMUELS: Thank you.

CHAIRPERSON: Mr Swanepoel, I don't suppose you have any questions to this witness have you?

MR SWANEPOEL: Not at this stage, thank you, Mr Chair.

CHAIRPERSON: Ms Patel?

CROSS-EXAMINATION BY MS PATEL: Thank you, Honourable Chairperson.

Sir, could you please tell us, you stated earlier that you were ordered to buy ammunition, is that correct?

MR THULO: Yes, that is correct.

MS PATEL: By whom?

MR THULO: That is Chris Motokwe.

MS PATEL: I'm sorry, could you repeat that please?

MR THULO: Chris Motowe: M-O-T-O-W-E. Chris Motowe.

ADV DE JAGER: ...(inaudible)

MR THULO: Chris Motokwe. I beg your pardon, Chris Motokwe: M-O-T-O-K-W-E.

MS PATEL: And who is he?

MR THULO: He was the commander after I left that position.

MS PATEL: Sir, of which section would that be?

MR THULO: That is Unit F.

MS PATEL: Was he specific in his instructions to you in terms of purchasing of weapons, in terms of where you needed to go and what needed to be done with the weapons?

MR THULO: I was given money that I should go and try to find the place where I would be able to buy that ammunition. Fortunately we were able to trace that place in Polla Park.

MS PATEL: Okay. What would happen to the weapons after you had purchased them?

MR THULO: We were near Buyafuti hostel. In many instances our section was attacked by people who were hostel dwellers. That is why we went to buy ammunition to defend ourselves.

MS PATEL: Okay. Would this then be distributed to the various members of your unit?

MR THULO: Yes, that is correct.

MS PATEL: You stated that Peters Sewasi was involved with the police hit squad, in your application, do you confirm that?

MR THULO: Yes, I verify that because the police were associating themselves with hostel dwellers.

MS PATEL: So what other information did you base this on? Was there any specific information that Peter Sewasi himself was involved with the police hit squad or are you saying this generally because you think that police were involved with the hostel dwellers?

MR THULO: Those people who were attacking us at all times were driven by police cars. When people were stabbed with assegais, they were attacked in the full view of the police.

MS PATEL: Were there any other incidents that you can recall that relate to Peter Sewasi, upon which you based your decision or upon which the unit had based its decision?

MR THULO: I would say I've said a mouthful by saying one member of the youth was attacked with assegais, because I'm staying near that hostel. He was attacked in front of the police or in the presence of the police.

MS PATEL: Do you ...(intervention)

ADV DE JAGER: It was Peter Sibya at that stage?

MR THULO: Yes, he was present when that person was attacked.

MS PATEL: Do you have any idea why this person was attacked?

MR THULO: They would ask questions about people who were not seen regularly near the hostels and they would use Zulu. Then if you are not able to respond in Zulu, therefore you would be attacked, especially when you can tell them that you come from Beirut or Cathrada or Sesulu or other sections, you would be attacked. You would survive if you can tell them that you come from Vosloorus or other places outside that area.

MS PATEL: So you're saying very simply that these people were attacked because they were not Zulu speaking?

MR THULO: That's the method which was used, that those people who were not conversant in Zulu would be attacked. I would say that in short.

MS PATEL: You've mentioned the Polla Park Kangaroo Court in your application, could you briefly explain how the court operated?

MR THULO: As I've already explained earlier, that we found that meeting being on - maybe you would - I said a meeting, not a Kangaroo Court. That is where we left Peter there in that meeting.

MS PATEL: Now if you would turn to page 268 of the bundle, at 9(b), you mention specifically the Polla Park Kangaroo Court, you didn't mention it in your testimony here today, but it is mentioned in your application.

MR THULO: Yes, I see that.

CHAIRPERSON: Didn't he say Ms Patel, that when he came back expecting to find this person, that he discovered that that person had been killed and he was shown where this person was burnt?

MS PATEL: But he didn't mention the Kangaroo Court specifically, he just mentioned a meeting generally. So the gist of my question is really, does this applicant know how that Kangaroo Court operated.

MR THULO: I have no knowledge of their operations. Maybe I included that Kangaroo Court by mistake but in that meeting, in many instances that is where they would discuss about people who were collaborating with the police and then those people would come and attack Polla Park and Beirut.

CHAIRPERSON: Maybe you don't know, Mr Thulo, what happened that day, but are you saying you have no knowledge what has to come to be known in these newspapers as the Kangaroo Court, you don't know how these things operate?

MR THULO: That is where people would be asked questions to get some light about particular issues. That is why I - perhaps I would say they would be question then when I arrive we will be able to have information as to whether why was he, why did he associate himself with attackers of the residents.

CHAIRPERSON: I'm not talking - I prefaced my question by saying I'm not talking about the events of that day, I'm talking generally, are you not aware how the people's courts operated?

MR THULO: I don't have ..(end of tape - no recording on side B of English only tape)

CHAIRPERSON: ...(no recording) 1984 to 1994, you have never been in a position to understand or be told how these courts work and why and how people were convicted and executed by way of being burnt, in most cases by being burnt with a tyre around them? You never heard of that?

MR THULO: I'm not able to explain because I would not identify that kind of a meeting as a Kangaroo Court or what, but I know that it was just a general meeting so that at the end of the day they would question a person then they would make a decision and burn that person.

CHAIRPERSON: Yes.

MS PATEL: Under whose instructions did you leave Peter Sewasi at that meeting?

MR THULO: I left Siphiwe and Linda there in that meeting.

CHAIRPERSON: I think he testified that he requested that he, that the deceased be left there because he wasn't comfortable with riding around with him.

MS PATEL: Was it your understanding that he would be left there so that the persons present at the meeting could question him, could question Peter Sewasi on his activities?

MR THULO: No, as I've already explained, I requested that he should remain there because the police were roaming around the township, so I was not comfortable that we'd meet the police if we could go around with him. I did not leave any instruction that they should question him about his activities.

MS PATEL: Okay, then perhaps you could explain to us, persons who were present at the meeting, for what purpose were they gathered there?

MR THULO: I explain that in many instances we would hold meetings to try to solve the problems in our area, about attacks and about people who were helping the police, so that they should be identified and then we should remove them from the association of the police and come to our side.

MS PATEL: Are you saying that the purpose of the meeting, parties that had gathered there, that their sole function would be to try to ensure that persons who were involved with the police would then through some kind of process with them, cease that activity and become a part of the organisation?

MR THULO: I'm requesting that you should repeat your question.

CHAIRPERSON: Was the purpose of this meeting to persuade third force, for example, members to stop their activities against the community and join the community or to join a favourable political party?

MR THULO: I believed so in short.

CHAIRPERSON: Mr Patel, when you get to a convenient stage we will adjourn for tea. We adjourn for ...

MS PATEL: Mr Thulo, by the time of the abduction of Mr Sewasi, for how long had you been involved in the Self Defence Units, up until that stage?

INTERPRETER: The speaker's mike is not activated.

MR THULO: It was about a year and six months then.

MS PATEL: During that time, in terms of your experience, how did the community generally deal with persons who were in Mr Sewasi's position, ie: assisting police generally involved in acts of terror against your community? How did the community generally deal with people of that kind?

MR THULO: The community would try to convince them so they can change and be part of the community again.

MS PATEL: And what would happen if they refused?

MR THULO: I did not experience that kind of an incident, as to what would happen to those people who did not want to co-operate, but in our section we were encouraging people to be rehabilitated.

ADV DE JAGER: Did you attend any meeting where they in fact convinced or persuaded a collaborator to change his views and join the movement?

MR THULO: I don't remember attending such meetings.

ADV DE JAGER: Have you heard of any person who has been named as a collaborator, who changed his point of view?

MR THULO: Yes, I do.

MS PATEL: After you had abducted Mr Sewasi, was there a conversation that took place between yourself and the other persons in the car?

MR THULO: That thing happened in a very short space of time. We did not have an opportunity to discuss with him because the car was seen when we put him in, by other people.

MS PATEL: Was there a discussion before you had abducted him?

MR THULO: We requested that he should co-operate with us and go with us to that particular place, that is Unit F, then he denied, then we forced him inside the car.

MS PATEL: And what was the plan, what were you going to do with him?

MR THULO: Our intention was to get information from him because many parents lost their children and some of them disappeared to unknown places. Within the black community if a member of the family dies, that family should be informed and therefore they should get the remains of the deceased and bury him.

MS PATEL: Who would authorise this plan, whose idea was it?

MR THULO: Because I was a driver I explained that the person whose name is Linda Radebe, identified Peter within attackers.

MS PATEL: Do you still stand by your earlier testimony that the purpose of abducting him was to try to persuade him to desist from the activities that he was involved in?

MR THULO: Yes, I still maintain that view.

MS PATEL: What was the primary objective though, was it to illicit information as to where persons who had gone missing, where they were or what had happened to them or was it to convert him?

MR THULO: It was that he should be rehabilitated and be accepted by the community because we lived with him in that Unit F. We did not believe that we should take a decision on our own and ill a person.

MS PATEL: What would you have done with him if he refused to give the information regarding the persons who are missing?

MR THULO: Our primary objective - I don't know what could have happened to tell you the truth, because we did not have an opportunity to talk with him. I would not predict and say what would happen if he denied, but I our intention was to rehabilitate him so that he will be acceptable within the community.

MS PATEL: I ask you once again, Sir, what would you expect to have happened to him if he refused to co-operate with you? Surely that must have been discussed, or in terms of the manner in which the organisation had operated, or the community had operated before then, there were certain expectations that you had, what were those?

MR THULO: In our meetings as a community, together with the commanders and members of the committee who were responsible to resolve the problems or our area, I believe that they would have an ability to persuade him to give up that information.

ADV MOTATA: No, but when he refused to co-operate, what did you expect to happen to him, would you leave him just like that and say: "You are refusing to co-operate"?

MR THULO: I would not be able to respond to that question, as to whether what could have happened if he denied because he was taken to a place where he was supposed to be. That is where they would see what would happen if he denied or if he gave out information.

ADV DE JAGER: Mr Thulo, isn't it a fact that during those turbulent years, if he would have refused and he was seen as a collaborator, wouldn't you expect the community to kill him?

MR THULO: I did not believe that he could have been killed. As I've explain, we did not have a right to kill.

ADV MOTATA: Were you surprised when they showed you where he was burnt and were you surprised that he was eventually killed and burnt, were you surprised?

MR THULO: Yes, I was surprised. I did not even have the ability to ask questions because I was afraid that something would happen to me if I ask questions about that incident.

ADV MOTATA: Was there no bad blood between ANC and such members of the Self Defence Unit and people like Peter Sewasi who was IFP aligned, were you not fighting each other?

MR THULO: It was not war in that sense, we were in a position to defend the community against the attacks which was launched by hostel dwellers.

ADV MOTATA: You were buying arms and ammunition which is illegal and if you defend yourself against such attacks, wouldn't you kill?

MR THULO: The Self Defence Unit was created to defend the people and then in that defence you'd be able to kill, people would die in that kind of a defence.

MS PATEL: Mr Thulo, here was a man who you'd abducted, who by your own admission had been involved in gross human rights violations against the very persons whom you had undertaken to protect, do you seriously want this Committee to believe that if he had not given his co-operation to you and your colleagues, that it was not reasonably foreseeable that he would be killed or at the very least seriously injured?

MR THULO: We did not foresee or think about that because those things happened in a very short space of time. That is why I had to leave and go and hand over that ammunition to my commander.

MS PATEL: Let me ask you this, what was Mr Sewasi's behaviour like after you forced him into the vehicle with you?

MR THULO: He denied to co-operate with us, that is why we forced him inside the car.

MS PATEL: Given that, what made you believe that he would co-operate with you in terms of giving you the information that you required?

MR THULO: If you're a person you have a conscience, then you have fear. I would say that he would be frightened that something would happen to him. If we were prepared to kill him we could have advised those people we left him with so that they should kill him in our absence.

ADV DE JAGER: The purpose of this hearing is not to ascertain whether you were guilty of a crime or not. We're not a criminal Court, we are a body who would give amnesty to people who come forward and tell us the whole truth.

So as a matter of fact we are granting amnesty to people who would say: "I'm guilty of doing this or that or another thing", and openly talk about it so that the community can hear what happened and then if you've committed a crime and it was for political reasons, we must give you amnesty according to the Act.

So there is no reason to be afraid to tell us the whole truth and what in fact happened during those days.

MR THULO: Yes, I do understand. I believe that what I am saying is the truth. As I have taken an oath, I am mindful of the fact that I'm coming here for amnesty. That is why I did not know what would happen thereafter when I've left that meeting. If questions have been asked, I am not able to tell this Committee because I did not know what would happen thereafter or what would happen.

ADV DE JAGER: Could you tell us who was in control of the meeting, who was the chairman and to whom have you handed Peter?

MR THULO: I explained that Siphiwe and Linda, I left them in that meeting so that they would take care of Peter, together with the committee which was present or in that meeting.

What happened after I had left to hand over the ammunition to Unit F, I don't have knowledge of what happened thereafter.

MS PATEL: Is it correct that persons at that meeting were in fact waiting for you to bring Peter Sewasi there?

MR THULO: No, that is not the truth.

MS PATEL: So this was pure coincidence, that you ended up there and left him there?

CHAIRPERSON: Did you know there was a meeting there? When you picked up Peter, did you know there was a meeting near that water tank?

MR THULO: I did not know that there was a meeting.

CHAIRPERSON: So you just per chance landed up at that meeting?

MR THULO: Yes, that is correct, it was a coincidence.

CHAIRPERSON: And you left Peter there because you were scared of riding around with him because of the presence of police and whoever else, correct?

MR THULO: Yes, that is correct.

CHAIRPERSON: What would you have done with Peter had there not been a meeting?

MR THULO: Our intention, we were supposed to take him to the places where he was involved in those political crimes or those crimes.

CHAIRPERSON: No, where were you going to persuade him to change his ways, if there wasn't a meeting at the water tank? That was your reason for picking him up, isn't it?

MR THULO: May you please repeat your question, Sir?

CHAIRPERSON: The reason for your kidnapping Peter, was to ask him certain questions about the disappearance and the injuries and the deaths of certain people, as well as to persuade him to change his ways for the betterment of the community, not so?

MR THULO: Yes, that is correct.

CHAIRPERSON: You didn't know that meeting was taking place at the water tank, when you picked him up?

MR THULO: Yes, I did not have the information about that meeting.

CHAIRPERSON: Where were you going to take him to persuade him to change his ways and to give information about these missing people?

MR THULO: I've explained that we would take him to Unit F where we would meet with our commander so that we would call a meeting of the defence committee, because in many instances those were the people responsible to give us money to buy guns and ammunition after the community has contributed money to that regard.

CHAIRPERSON: Why didn't you just take him there instead of just leaving him in that meeting that you didn't know about?

MR THULO: I don't know as to whether I made it clear, that on my way to meet Peter, I was going to buy ammunition. That place was near to the place where we met Peter. And then because of the confusion and the presence of the police and the soldiers and that there were people who saw my car and they saw me taking him inside my car, I decided to take him to Polla Park where I was going to buy the ammunition.

MS PATEL: You said the intention was to take him to the Defence Unit and to hand him over to the commander, is that correct?

MR THULO: Yes, that is correct.

MS PATEL: Okay. What would the procedure then have been after that?

MR THULO: That defence committee was able to persuade people who associated themselves with the hostel dwellers. There is one, I just forgot his name, he succeeded to go back home after he was involved with the hostel dwellers in the attacks of the people. So they were able to persuade him to come back and be acceptable within our community.

MS PATEL: And how would they persuade him?

MR THULO: The attempts they made was that he must disassociate himself with war talk so that he will be able to see that people who are hostel dwellers are the enemies of the community.

MS PATEL: Are you saying that only verbal persuasion would be used?

MR THULO: Yes, the one I know, he was persuaded verbally.

MS PATEL: And that's the only method that was used by the Defence Unit, verbal persuasion?

MR THULO: I don't remember that there was a person who was tortured or assaulted so that he should be persuaded to change his mind.

MS PATEL: When you came back and found that they had killed Peter, who did you speak to?

MR THULO: I met Siphiwe.

MS PATEL: What exactly did he say to you?

MR THULO: When I asked him where Peter went he said that he would show where he is. He led to where he was murdered.

MS PATEL: ...(inaudible) he was murdered?

MR THULO: He did not explain.

MS PATEL: This Siphiwe that you referred to, who exactly was he and what was his function?

MR THULO: He was an operator in the Section of the Defence Unit.

MS PATEL: Why didn't you ask him what had happened? Here was somebody whom you had assisted to abduct, do you want us to believe that verbal persuasion would have been used in order to achieve the desired intentions of having abducted him, and you find him burnt to death, weren't you at the very least curious as to what happened?

MR THULO: The question I asked is, what is the reason that he was killed? The explanation I received was that people who attended that meeting took him and then that is why it happened the way it happened.

ADV DE JAGER: Before this meeting and before you saw this body that's been burnt there, were you aware of any other people who had been killed and burnt, necklaced?

MR THULO: I read from the papers.

ADV DE JAGER: So were you so surprised when this happened to him? Wasn't it often reported in the newspapers, that Councillors and people collaborating with the police were burnt?

MR THULO: I said he was stabbed, I don't know of people who were burnt.

CHAIRPERSON: ...(inaudible) were you involved in the struggle?

MR THULO: I started in 1986 when I was still at high school.

CHAIRPERSON: How old were you?

MR THULO: I was 25 years old - I was 18 years old.

CHAIRPERSON: You belonged to the youth movement, not so?

MR THULO: Yes, that is correct.

CHAIRPERSON: And during that time when you were a member of the youth movement, ...(inaudible) very important part in the struggle, not so?

MR THULO: Yes, I know.

CHAIRPERSON: And part of the strategy of the youth was to attack collaborators, is that not so?

MR THULO: Yes, that is correct.

CHAIRPERSON: In particular black people who sold their own souls?

MR THULO: May you please repeat your question?

CHAIRPERSON: In particular black people who sold their own souls to apartheid?

MR THULO: I saw it only in the newspapers, I don't remember being part of the youth group which attacked or killed collaborators.

CHAIRPERSON: Which group were you attached to?

MR THULO: I was a member of Thokoza Youth Congress.

CHAIRPERSON: ...(inaudible) the Thokoza Youth League must have been the only league who didn't do that in the whole country, would you agree?

MR THULO: I would not dispute or agree that Thokoza Youth League did not attack people, but what I'm saying is that I was never part to a group of the youth congress which attacked people.

CHAIRPERSON: Not even community councils?

MR THULO: The attacks which I remember were attacks against the police with petrol bombs.

CHAIRPERSON: You remember the time when our people said we are not going to vote? Do you remember that time?

MR THULO: Yes, I do although I don't remember the year.

CHAIRPERSON: And during that time the youth rose to the occasion, correct?

MR THULO: Yes, that is correct.

CHAIRPERSON: If I'm not mistaken that was around 1987/1998, October.

MR THULO: I would agree with you.

CHAIRPERSON: And despite the objections from many quarters, progressive quarters, certain people in all the locations, Indian, Coloured, African, there were people who were prepared to sell their souls, do you remember?

MR THULO: Yes, I do.

CHAIRPERSON: And those people were dealt with, do you recall, by the youth congress? Not only the youth congress, but the youth congress was involved in dealing with those people, do you remember?

MR THULO: Yes, I do.

CHAIRPERSON: And do you recall what happened to those people and their properties?

MR THULO: What I remember is that they were beaten with batons or sjambucks.

CHAIRPERSON: I don't know if you recall in the Eastern Cape, a gentlemen by the name Kenny Kini, much publicised in the whole country, do you remember?

MR THULO: I don't remember him.

CHAIRPERSON: You don't recall any of the community councillors being killed, even here in Gauteng which was then the Transvaal?

MR THULO: I remember that petrol bombs were thrown to a member of the council in Daveton, that is Tom Boya.

CHAIRPERSON: Is that all that happened to him?

MR THULO: Yes, I remember only the petrol bombs which were used.

CHAIRPERSON: And you never heard or read in the newspapers that somewhere in the country some of these community councillors who made themselves available for this apartheid system, they were killed, they were burnt, a tyre was put over them with petrol and set alight?

MR THULO: When I was reading the newspapers or listening to news I learnt that they were using petrol bombs to burn the people to death.

CHAIRPERSON: And did you ever hear the newspapers coin the phrase "Kangaroo Courts"?

MR THULO: Yes, I did.

CHAIRPERSON: Did you not find out from your comrades what this was all about, what is this Kangaroo Court that the newspapers are referring to?

MR THULO: I learnt that those people who were collaborators with the previous system were brought to that particular institution so that they would be able to be questioned about their activities.

CHAIRPERSON: ...(inaudible)

MR THULO: I remember that people were sjambucked in the Kangaroo Court.

CHAIRPERSON: That's all?

MR THULO: Yes.

CHAIRPERSON: You didn't hear in these courts that the chairman would assume at times the names of appointed judges in the country?

MR THULO: Yes, I do know.

CHAIRPERSON: And they would conduct a trial of those people who were brought before the meeting, not so?

MR THULO: Yes, that is correct, but I've never witnessed that, I just heard about it. I never witnessed the process of the Kangaroo Court or I never met somebody who was a member of the Kangaroo Court.

CHAIRPERSON: And you know at times what happened at the end of the day when certain people were found guilty and how they were punished, they were burnt to death, isn't it, because they sold the people, correct?

MR THULO: Yes, that is correct.

CHAIRPERSON: Now on this day when you kidnapped Peter, you were aware of such things and that such things had occurred before, not so?

MR THULO: I would not identify that meeting with a Kangaroo Court ...(intervention)

CHAIRPERSON: ...(inaudible) Kangaroo Court. You said you didn't know what was happening, you unexpectedly came across that gathering.

MR THULO: As I've explained that people used to meet and discuss how they can avoid the attacks we suffered by members of the Thokoza community which came from many directions.

I believed that they were discussing those kind of issues. The explanation I gave about the Kangaroo Court, with a judge and other members of that committee, I don't know that one.

CHAIRPERSON: Yes, Ms Patel, have you got any questions left?

ADV DE JAGER: Sorry. This application, is this your handwriting, on page 268?

MR THULO: I believe so. Somewhere is not my handwriting but somewhere is my handwriting.

ADV DE JAGER: Okay, look at page 268, do you see paragraph (b), was that your handwriting?

MS PATEL: Yes, that is my handwriting.

ADV DE JAGER: And there they ask you:

And you said:

You've written that yourself.

MR THULO: That is correct.

ADV DE JAGER: Now what do you want to convey or wanted to convey at the stage when you wrote that?

MR THULO: I explained earlier that it is because of not understanding the English language, so that I'd be able to identify a particular meeting because a Kangaroo Court in many instances was seen where many people have met or assembled.

So it is a misuse of that word because I did not understand exactly what it meant.

ADV MOTATA: Mr Thulo, when you refer further - if you look at that very (b), you say:

and you have:

Wouldn't the conclusion be that when Peter was taken there, that those people who had assembled there formed a Kangaroo Court and hence his execution?

MR THULO: I was trying to explain where I included the name Peter to identify the victim of a person who was taken to that particular meeting.

MS PATEL: Mr Thulo, on page 69 you have stated that you would also like to apply for general amnesty for things that you may not recall, is that still your request?

CHAIRPERSON: ...(inaudible) relevant Ms Patel, whether it's still his request, he can't get it.

MR THULO: My legal representative explained to me that the way the TRC Act operates does not allow a person to apply for amnesty for the things he does not know. That is why apply for amnesty for things I know.

MS PATEL: Just finally though, were you involved in so many incidents that you can't recall what you were involved in?

MR THULO: When I tried to explain about things which I do not remember, I was thinking of those issues, that the cameras which were used by the police during the attack, if we would go to help the community in a different manner, maybe I appear in their videos. That is why I say those are the things which I cannot recollect.

MS PATEL: Sorry, if you would bear with me just one moment.

You've mentioned in your application, under whose approval you acted, you say:

Is this the same as Chris Motokwe?

MR THULO: Yes, that is Chris Motokwe, that is my commander.

MS PATEL: Who is Chris Mdago, or is it the same person?

MR THULO: It is a slip of my hand because I don't know the correct spelling but I know that he's Chris Motokwe, but the way it's written here does not correspond with the real name.

MS PATEL: Alright. Thank you, Honourable Chairperson, I have no further questions for this witness.

ADV DE JAGER: Ms Patel, do you know whether the deceased had any relations or where he stayed, any notice given perhaps in newspapers in recent days or so?

MS PATEL: If I may place on record, Honourable Chairperson, that ads were placed both in newspapers and on the radio some time back, for victims to come forward. The response was very poor.

I might add also that another ad was placed last week, to which we have had no response. And in terms of the report from our Investigative Unit, they haven't had any luck in terms of this.

ADV DE JAGER: So as far as the Amnesty Committee or its staff could possibly have done, they've tried to get hold or give notices to everyone involved and the victims involved?

MS PATEL: That is correct, Honourable Chairperson.

CHAIRPERSON: Any re-examination?

MR SAMUELS: No re-examination. That is the evidence for this applicant.

CHAIRPERSON: Thank you.

CHAIRPERSON: You can call your next witness, we will deal with his evidence-in-chief.

MR SAMUELS: I call Lucky Richard Molahlehi, application number 7098/97 and it's on page 111 ...(indistinct)

CHAIRPERSON: Mr Molahlehi, what language would you like to use?

MR MOLAHLEHI: Lucky Molahlehi, that is my name.

CHAIRPERSON: What language would you like to use?

MR MOLAHLEHI: I'd use South Sesotho.

CHAIRPERSON: As you wish.

INTERPRETER: We are requesting a minute, Sir. The interpreters did not hear your question, Sir.

LUCKY RICHARD MOLAHLEHI: (sworn states)

CHAIRPERSON: Please be seated.

MR SAMUELS: Mr Chairman, before I start, may I have leave to amend the list that I'd handed up to you this morning, recording the specific details about Lucky Molahleni's offences? It has been listed as attempted murder only. May I have leave to increase that list by adding possession of an AK47 and possession of an R4 rifle? It all relates to the same incident at the same time. May I proceed?

EXAMINATION BY MR SAMUELS: Mr Molahleni, how old are you?

MR MOLAHLEHI: 27 years old, Sir.

MR SAMUELS: And you belong to the ANC?

MR MOLAHLEHI: That is correct.

MR SAMUELS: Do you live in Thokoza?

MR MOLAHLEHI: Yes.

MR SAMUELS: And were you a Self Defence Unit member in Thokoza during the early 90's?

MR MOLAHLEHI: Yes, that is correct.

MR SAMUELS: And who was your commander?

MR MOLAHLEHI: Mr Xnube.

MR SAMUELS: I see. You are applying for amnesty for three offences, attempted murder, possession of AK47 and possession of an R4, is that correct?

MR MOLAHLEHI: Yes, that is correct.

ADV DE JAGER: Could you perhaps in his application itself, from page 111, show us where he mentions any of these offences.

MR SAMUELS: No, it's not mentioned specifically. On page 113, 112, in answer to the question: Furnish sufficient particulars of any acts, he says:

My submission is that at the time when these applications were filled in, not all the applicants were ad idem on what it is that they were going to specifically write in each application. There had been - and it may be viewed incorrectly that a policy decision was taken on how to fill in these forms and on that reason my submission is, there will logically be a difference between what the applicant will be saying now in oral testimony as opposed to that paragraph A(1).

I appreciate that can be argued on a matter of inconsistency and therefore can be rejected as evidence. My argument would be that a general phrase was written and it is only now that the specifics are available, that we have tried to hand them up. I understand your question.

CHAIRPERSON: You see the problem that we face, and I think you're going to have to argue this very strongly, is that when they say "in general defence of the community", that in itself is not a crime.

MR SAMUELS: I agree.

CHAIRPERSON: And hence the question, how does the application fit in here?

MR SAMUELS: Yes, again my only submission is, it was a general policy decision taken not by this specific applicant, by his political party, that these forms will be filled in in a certain way. And in fact this also reflects on our previous difficulties of wanting to lead previous witnesses and history and the manner in which the hearings would have been held.

My submission is that the specific acts that the applicant will now testify to, or the general defence of the community encompasses those specific acts, being defending his community against marchers along a certain street. I would submit that his specific acts that he will tell us about now can be included within that very, very general phrase, "general defence of the community." That is my only submission on that point. If you wish us to argue on ...(intervention)

CHAIRPERSON: No, I think let me allow you to lead the evidence, with the rider that I'm not particularly convinced that this is a proper application at this stage. Perhaps you will at the end persuade us all that is okay, and we will wait till then.

MR SAMUELS: Okay, thank you. May I continue?

ADV DE JAGER: Only for the record, Ms Patel, were particulars asked at a certain stage and where they supplied, when and so on?

MS PATEL: If you grant me a moment I will double-check.

ADV DE JAGER: ...(inaudible)

ADV MOTATA: Mr Samuels, I just want to clear one thing. I just want the correct spelling of his surname.

MR SAMUELS: Sure.

ADV MOTATA: Are you Molahlehi or Molahleni?

MR MOLAHLEHI: That is Molahlehi, H-I at the end.

ADV MOTATA: Thank you.

ADV DE JAGER: Sorry, M-O-L?

MR MOLAHLEHI: M-O-L-O-L-A-H-I, H-L-E-H-I, Molahlehi.

MR SAMUELS: You have applied for amnesty for the attempted murder of IFP marchers, is that correct?

MR MOLAHLEHI: Yes, that is correct.

MR SAMUELS: When did this incident occur?

MR MOLAHLEHI: It was late 1992, towards the end of 1992.

MR SAMUELS: And in which street did this incident occur?

MR MOLAHLEHI: Schoeman Road.

MR SAMUELS: And where about is that, in which neighbourhood?

MR MOLAHLEHI: It is between Unit F and Buyafuti hostel.

MR SAMUELS: Now describe in your own words what happened.

MR MOLAHLEHI: What happened that day, the Inkatha marchers were singing from the hostel. Because we were afraid that when they come back they will come and attack us we went into Unit F so that we could see the direction that they were taking.

When we arrived there, we saw them moving towards our houses, so we tried to stop them. While trying to stop them we were armed with AK47s as members of the ...(inaudible)

CHAIRPERSON: What were you trying to stop them from doing?

MR MOLAHLEHI: It is known that whenever they march, when they come back they will kill people and we didn't want them to reach our places because we knew that they would attack us. That's why we stopped them.

So the shootout ensued because they were also shooting at us and we were also shooting at them. They were accompanied by the Stability Unit. This unit was also helping them to shoot us until we surrendered because we realised that they were being helped by the Stability Unit. Then we ran away.

During that incident one member of Inkatha was in the front. During that shootout he fell. He had an R4. So I had a chance to go and take that R4 and then I took that R4 and ran away with it.

MR SAMUELS: Where is that R4 now?

MR MOLAHLEHI: When we were told to hand our hand over our weapons after the elections, I returned that R4, I handed it over.

MR SAMUELS: Who did you give it to?

MR MOLAHLEHI: I didn't give it to a specific person, we just handed them over at the stadium. We didn't know where they were taken to.

MR SAMUELS: Now you said that when the IFP marchers were coming along Schoeman Street, you were shooting in their direction, how far away did you stand from these marchers, approximately?

MR MOLAHLEHI: It could be about 100 metres from where I was standing.

MR SAMUELS: I see. And the AK47 that you had in your possession, did you know that it was illegal to have an Ak47 in your possession?

MR MOLAHLEHI: Yes, I did, but because of the situation then, I was forced to have it in my possession.

MR SAMUELS: And did you also know that to hold the R4 was unlawful, illegal?

MR MOLAHLEHI: Yes, I do.

MR SAMUELS: I see, thank you. Thank you, Mr Chairman.

CHAIRPERSON: Do you know if anybody was killed or injured during that event?

MR MOLAHLEHI: No, Chairperson, I don't know of any person that was injured or killed during that shoot-out.

ADV DE JAGER: Sorry, but didn't you tell us about somebody, and you in fact took his R4 or was that not on that occasion?

MR MOLAHLEHI: That's correct, he was injured but I don't know him.

CHAIRPERSON: That's what I asked, if anybody was injured or killed. ...(inaudible) the name.

MR MOLAHLEHI: Yes, I agree that people got injured because we were fighting.

CHAIRPERSON: Yes, we'll break for the lunch adjournment.

MR SAMUELS: That is the applicant's evidence-in-chief.

CROSS-EXAMINATION BY MR SWANEPOEL: Thank you, Mr Chairman. I have a few questions. I just want to clarify something.

Sir, you were present when the previous applicant gave evidence about a shooting at a funeral which proceeded down Schoeman Street, do you recall that evidence?

ADV DE JAGER: I think it's the same applicant. He testified about a shooting down Schoeman Street.

MR SWANEPOEL: Indeed Sir, but the previous applicant also testified about a shooting down Schoeman Street, near the tennis courts, if I remember correctly.

CHAIRPERSON: Did he say Schoeman Street? I'm not too sure.

MR SWANEPOEL: If my memory serves me correctly, I'm just trying to ascertain whether we are talking about the same event. If not, I will ... Thank you, Mr Chairperson.

Shall I repeat the question, Sir?

MR MOLAHLEHI: Yes.

MR SWANEPOEL: You were present when the previous applicant testified about a shooting that occurred at a funeral march down Schoeman Street, and if my memory serves me correctly, he specifically mentioned near the tennis courts and he also mentioned people shooting from houses, do you recall that testimony.

MR MOLAHLEHI: Yes, I remember, but it's not the same incident.

MR SWANEPOEL: Alright. I'll leave that there then ...(intervention)

CHAIRPERSON: Schoeman Street seems to be a war zone.

MR SWANEPOEL: Apparently so, Sir, also very close to the cemetery.

Let me ask you this. When the person at the front of the march fell, did he fall because he was shot?

MR MOLAHLEHI: Can you repeat the question, Sir?

MR SWANEPOEL: When the person at the front of the march, the person whose R4 rifle you took fell, did he fall because he was shot?

MR MOLAHLEHI: I believe so.

MR SWANEPOEL: And did you see where he was shot?

MR MOLAHLEHI: No.

MR SWANEPOEL: I have nothing further, Mr Chairman.

CHAIRPERSON: Ms Patel, have you got any questions?

CROSS-EXAMINATION BY MS PATEL: Yes, just one aspect I'd like clarity on, Honourable Chairperson.

Mr Molahlehi, can you recall at the start of the incident where the first shots came from? Did you act in response to shots being fired upon you or were you the aggressors in this matter?

MR MOLAHLEHI: They started shooting and then we responded.

MS PATEL: Are you saying then that you acted in self defence?

MR MOLAHLEHI: Yes, that is correct.

MS PATEL: Thank you, Honourable Chairperson, I have no further questions.

ADV DE JAGER: Were any people on your side injured?

MR MOLAHLEHI: No.

ADV DE JAGER: Was there a lot of gunfire from the other side?

MR MOLAHLEHI: Yes, that is correct.

ADV DE JAGER: Anybody injured on your side?

MR MOLAHLEHI: No person on our side was injured because we had a place where we shielded ourselves.

ADV DE JAGER: So you were not openly confronting each other?

MR MOLAHLEHI: We were confronting each other but we took cover.

ADV DE JAGER: Were you taking cover in houses, or where did you take cover?

MR MOLAHLEHI: We were outside the houses but inside the yard. We used the whole fences of those houses.

ADV DE JAGER: When you ran out to take the R4, were they still shooting at that stage?

MR MOLAHLEHI: Yes, they were shooting at that time. The person who was leading the march was near me, that is why I was able to go and take that R5.

ADV DE JAGER: How far from you did he fall?

MR MOLAHLEHI: Approximately 40 metres.

CHAIRPERSON: Have you got any re-examination?

MR SWANEPOEL: No re-examination, thank you.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

MR SAMUELS: Mr Chairperson, earlier on we indicated that Perry Dlamini who was a co-conspirator with Mr Xaba who gave evidence today, was unavailable. We have since traced him and I would now like to call Parry Dlamini to the witness stand.

MR SWANEPOEL: Mr Chairperson, if I may. I have in the meantime taken instructions from the victims whom I represent in this matter. Maybe this is a convenient time to finish the cross-examination of Mr Xaba and then proceed with ...(intervention)

CHAIRPERSON: Do you have any questions of him?

MR SWANEPOEL: I have one or two questions, depending on the answers, Mr Chair. As you please.

CHAIRPERSON: We recall Mr Xaba.

Mr Xaba, you are still under oath to speak the truth, do you understand? Has he heard that?

INTERPRETER: If he can just tune in on channel 4.

CHAIRPERSON: You are still under oath to speak the truth, do you understand?

THEMBA RICHARD XABA: (s.u.o.)

CHAIRPERSON: Mr Swanepoel?

MR SWANEPOEL: Thank you, Mr Chairperson.

Mr Xaba, do I understand your evidence correctly to be that you based your assumption that only Mr Msizi was in the house, on information that you received from people who watched the house for you in the street?

MR XABA: Yes, I've said so. We were sure that it was only Mr Msizi and his children were not there, and his wife wasn't there, we confirmed this.

CHAIRPERSON: In other words, you only make application in respect of an attempt to murder Mr Msizi?

MR XABA: Yes, he was an IFP member and a leader. We wanted him to resign.

MR SWANEPOEL: Now, I have taken instructions, and Mr Msizi will come and testify if necessary, but my instructions are that his whole family was in the house that evening when you threw the petrol bomb into the house, what do you say to that?

MR XABA: I'm certain his family wasn't inside the house. It's a lie that his family was inside the house.

CHAIRPERSON: But you said you relied on the information of your informants, correct?

MR XABA: I said like that and I also said that I took it my job to make sure that Msizi was alone and his family wasn't inside the house. When he came at ten to nine he was alone, his family wasn't there.

CHAIRPERSON: Mr Xaba, I don't want to sound rude but you've told us this so you don't have to repeat it. We don't want to hear a long version. All I'm asking is simply, that as I understand your evidence thusfar, that you had people watching the house and prior to your throwing or the group throwing that petrol bomb into the Msizi house, your information from those people who were watching that house was that Mr Msizi took his family away and returned alone, and consequently you drew the conclusion that when you threw or when your group threw that petrol bomb into the house, Mr Msizi was there alone, am I correct?

MR XABA: Yes, you are correct.

CHAIRPERSON: Now if your informants were incorrect or they were wrong or they lied to you, you wouldn't know, isn't it?

MR XABA: Yes, that's correct.

CHAIRPERSON: And therefore it was put to you that you would not be able to dispute in those circumstances, if Mr Msizi were to come and testify that he and his family were indeed in the house when that petrol bomb was thrown into it.

MR XABA: Let me just explain this this way. I came 15 minutes before we did what we did and when Msizi came into his house I was outside his house, and he was alone.

CHAIRPERSON: Yes, but his family may have been inside the house. I'm not saying, and I don't think the advocate is suggesting that your honest belief may have been that Mr Msizi was alone, but the factual issue may have been otherwise, would you not agree with that?

MR XABA: I do agree that probably there may have been other people in the house.

MR SWANEPOEL: Thank you, Mr Chair.

Now let me understand your complaint against Mr Msizi correctly, is your only complaint that he was an IFP member and a council member and that he was opposed to the ANC?

CHAIRPERSON: I don't think that was - his complaint was initially, you may get other answers now, but he was councillor whose activities didn't favour the community.

MR SWANEPOEL: Thank you, Mr Chair.

Let me rephrase my question. Did you ever see Mr Msizi attack the community or being involved in crimes against the community?

MR XABA: ...(no English translation)

CHAIRPERSON: I think you better be very careful, to define what you mean by crime to the witness. What you and I may regard as common law crimes or statutory crimes, there are other crimes which are moral, which the witness may refer to as crimes. They've always being doing so in political talk.

MR SWANEPOEL: Thank you, Mr Chair.

I'll rephrase to state: did you ever see Mr Msizi involved in attacks against the community?

MR XABA: No, I haven't.

MR SWANEPOEL: So when you say that the reason for you committing the offence, in your application on page 70 of the bundle, is:

the word "defence" is not strictly speaking correct, is that true?

CHAIRPERSON: That's precisely what I was getting to, Mr Swanepoel. I don't want to put words into the witness's mouth but I have come across interpretations of offences by victims, for example corruption, taking away their homes for whatever reason, manipulating a list of people who are waiting to be allocated houses, that sort of thing.

Strictly speaking that may not be crime as we understand it, but there have been applications that I've come across, where people refer to those kind of activities as crimes and defending the community against such activities.

MR SWANEPOEL: Thank you, Mr Chair, I'll leave that aspect for argument.

One final question, Mr Xaba. Could you just refresh my memory, who exactly was with you when the attack was launched?

MR XABA: It was Perry Dlamini, Bafana Baloi and Jacky Macheo.

MR SWANEPOEL: I have no further questions, Mr Chairperson.

ADV DE JAGER: You testified that you prepared the petrol bombs.

MR XABA: Yes, that's correct.

ADV DE JAGER: When were those bombs prepared?

MR XABA: Before we went and attacked Mr Msizi's house.

ADV DE JAGER: Yes, how long before, an hour before or two hours before?

MR XABA: We prepared these from 6 o'clock and the attack took place at 9 o'clock.

ADV DE JAGER: And when did you start - you said you went to the house, I couldn't catch it, was it 50 minutes, 50, or 15 before the attack?

MR XABA: 15 minutes before the attack.

ADV DE JAGER: And you didn't look into the house at that stage, through a window or a door?

MR XABA: Msizi's house used to have policemen all the time and it was not easy for one to look through the windows or the doors because of that.

ADV DE JAGER: Ja, but we know that there were no policemen on that evening.

MR XABA: I'm talking about 9 o'clock, and these people changed shifts, so the other group left and the other group was about to come. It was not easy for us to enter, to actually enter Msizi's house but we could see from a distance.

ADV DE JAGER: When did the police leave, the first shift? Did you see them leaving?

MR XABA: Yes, we saw the police leaving.

ADV DE JAGER: And after they left, didn't you go up to the window to look who is there?

MR XABA: No, Msizi was there and he was our only target. We were not worried about others. As soon as the police left, we attacked.

ADV DE JAGER: So you don't know whether there were others in the house?

MR XABA: As I have mentioned, we were sure that Msizi's family had already gone and he came back alone and the police had gone already, so we were sure that he was alone. We didn't know that there were other people whom we don't know.

ADV DE JAGER: And how long before the attack did the police go?

MR XABA: It took us three minutes. As soon as the police left, we attacked.

ADV DE JAGER: Thank you.

ADV MOTATA: Mr Xaba, you said after you hurled these petrol bombs you ran away, did I hear you correctly?

MR XABA: Yes, we ran away.

ADV MOTATA: Do you know what damage was done to Mr Msizi's house?

MR XABA: I saw the damage the following day.

ADV MOTATA: How much was the damage?

MR XABA: Now if you're talking about monetary, I wouldn't know but it was damaged.

ADV MOTATA: I mean how were the walls damaged or what burnt because of the petrol bombs?

MR XABA: The roof was damaged but the walls were still there.

ADV MOTATA: Thank you, Chairperson, I've got no further questions.

MR SAMUELS: I have no further questions, Mr Chairman. May the witness be excused? Thank you.

WITNESS EXCUSED

MR MAKANJEE: Mr Chairperson, we call Perry Nhlanhla Dlamini, applicant number 7239/97. It's on page 30 of volume two, Mr Chairperson.

Mr Chairperson, if we could just get some clarity. What channel does the witness use to hear in Zulu.

INTERPRETER: The Zulu is 4.

MR MAKANJEE: Thank you.

CHAIRPERSON: Mr Dlamini, which language do you prefer to use?

MR DLAMINI: Zulu.

PERRY NHLANHLA DLAMINI: (sworn states)

CHAIRPERSON: Yes, be seated. Yes, proceed.

EXAMINATION BY MR MAKANJEE: Thank you, Mr Chairperson.

Mr Dlamini, you're applying for amnesty, is that correct?

MR DLAMINI: That's correct.

MR MAKANJEE: Mr Dlamini, do you belong to any political party?

MR DLAMINI: Yes, I do.

MR MAKANJEE: What is the name of the political party you belong to?

MR DLAMINI: ANC/SACP.

MR MAKANJEE: Can you tell the Committee what offences you are applying for amnesty for?

MR DLAMINI: In 1990, me and comrade Themba Xaba, Bafana Baloi and Jacky Macheo, we attacked Mr Msizi's house.

MR MAKANJEE: You mentioned comrade Xaba, is that the applicant who testified prior to you?

MR DLAMINI: Yes, that's correct.

MR MAKANJEE: Very briefly would you tell us the events itself that led you to making this amnesty application?

MR DLAMINI: It was myself, comrade Themba, Jacky Macheo and Bafana Baloi. In 1990 we attacked Mr Msizi's house, we threw petrol bombs. We did so because Msizi was one of the councillors who used to harass and give hardships to the community. It includes arresting people and evicting people from their houses.

MR MAKANJEE: Did Mr Msizi belong to any particular political party?

MR DLAMINI: Yes, he was a member of the IFP and we considered him as someone who was collaborating with the apartheid regime at the time.

MR MAKANJEE: Who was present at Mr Msizi's house when you threw the petrol bombs at the house?

MR DLAMINI: There was - comrade Themba Xaba was a commander and he is the one who went and checked and he reported back to us that the police who were guarding Mr Msizi's house had just left. Then we took the chance to go and attack Mr Msizi's house.

We were not sure as to who was there because we didn't check, except for Themba Xaba but Msizi was inside the house.

MR MAKANJEE: So am I correct then in saying that the offences which you are applying for amnesty for are in fact arson and attempted murder, is that correct?

MR DLAMINI: Yes, that's correct.

MR MAKANJEE: You have heard the counsel for Mr Msizi testify to the fact that Mr Msizi's family was present at the time of the petrol bombing, can you comment on that?

MR DLAMINI: I can't comment on that but for what we received from Themba, since he was the commander and he was the one who was checking and searching every information. He is the one who told us that Msizi was alone in his house.

MR MAKANJEE: Are there any other offences for which you wish to apply for amnesty?

MR DLAMINI: No, nothing.

MR MAKANJEE: Thank you, Mr Chairperson.

ADV DE JAGER: Before we proceed I would like to mention to you a few problems that I've got. In the application he is applying for amnesty for the general defence of the township. Dates:

A very exact starting date being given. Now he's applying for an offence which was committed in 1990. Apart from that, on the next page:

No name mentioned, no victims mentioned. Wasn't he all the way aware of who the victim was, and why didn't he mention this in his application? And this application was attested to that it's the truth that is mentioned herein. So how did it come - why does he remember the name of the victim today and he didn't put it in at the stage of his application?

MR MAKANJEE: Thank you, Mr Chair. My instructions are that this application, along with the bulk of the applications that are before the Panel, were made as a general submission to avoid missing the deadline for such amnesty applications.

CHAIRPERSON: But that doesn't help with the specific dates which are mentioned in the application.

MR MAKANJEE: Mr Chairperson, my instructions are that the form was filled in erroneously, the date was meant to be 28.02.1990 till 1992.

CHAIRPERSON: When you signed that - Mr Dlamini, you signed this document, not so?

MR DLAMINI: Yes, I did sign.

CHAIRPERSON: Is that your signature on page 35?

MR DLAMINI: Yes, that's my signature.

CHAIRPERSON: And you signed it to signify that you are aware of the contents of this document?

MR DLAMINI: Yes.

CHAIRPERSON: And at that time when you signed it you found nothing wrong with the document, not so?

MR DLAMINI: No, I didn't notice, we were in a hurry.

CHAIRPERSON: Why in a hurry? This is a document that affects your future, it affects your life, not so? It is even more important than your ID document. By the way, who assisted you in filling in this, or did you do it on your own?

MR DLAMINI: I did it myself and Sally helped us.

CHAIRPERSON: Who is Sally?

MR DLAMINI: Sally Sealey.

CHAIRPERSON: And she was there when you filled in this form?

MR DLAMINI: Yes, she was there but she was standing by at the side.

CHAIRPERSON: And you signed this knowing full well what the contents of this document was. You were satisfied that this document reflected what you wanted it to reflect right up till 10 minutes ago?

MR DLAMINI: Yes, I was satisfied.

CHAIRPERSON: So you knew full well that you are applying for incidents that occurred between the 28th of February 1991 to, in your favour, the 31st of December 1992, correct?

MR DLAMINI: Yes, I knew.

CHAIRPERSON: Mr Makanjee, what is the position?

MR MAKANJEE: Mr Chairperson, if I could ...(no sound) again please.

MR MAKANJEE: Mr Chairperson, my instructions are again that my client at the time of filling in this form did so in a hurried manner ...(intervention)

CHAIRPERSON: We accept that, we have sympathy for that, we'll even find that, how does that help?

MR MAKANJEE: With regards to the dates supplied for the ...(intervention)

CHAIRPERSON: You cannot amend the application, you can supplement it. Now how does one supplement this to bring it in line with a successful application? I have difficulty to perceived that. That it could have been a mistake or is a mistake, well I have sympathy for that but the fact of the matter is I'm stuck with it, or this Committee is stuck with it, you are stuck with it, the applicant is stuck with it.

MR MAKANJEE: We cannot change the facts that the applicant has testified to already. We will argue in our closing argument on why Mr Dlamini's testimony should be accepted to fall within the ambit of his application form.

CHAIRPERSON: Mr Makanjee, either we have a proper application before us or not, because I have to decide now, depending on what you insist on, whether there is an application before us which entitles other people to cross-examine or not. If we haven't got a proper application then there's no point carrying on. If we do have, well then we've got to go through the full business. If you can persuade me that this is a proper application, I'll gladly allow the matter to go through.

MR MAKANJEE: Thank you, Chairperson.

CHAIRPERSON: ...(inaudible) to make it quite easy, and I hope your client can understand it, is that he could very well testify now about incidents that occurred between the 28th of February 1991 to the 31st of December 1992 but what he has already testified to is something that by his own admission occurred in 1990. He has not made application in respect of that incident, therefore there is no application for that incident before us.

ADV DE JAGER: You see, if he'd only mentioned the name for instance of the victim, then we could say well there's something to link it to that 1990 incident and the date may be a mistake.

CHAIRPERSON: But there's nothing.

MR MAKANJEE: I agree with the Panel, that it is a very generally worded application ...(intervention)

CHAIRPERSON: ...(inaudible)

MR MAKANJEE: That's very true.

CHAIRPERSON: Mr Makanjee, I think it is obvious to all of us what should happen. I appreciate your difficulty. I am going to adjourn for five minutes. You can explain the position to your client and hopefully you'll be able to explain it properly, that he understands and that sanity prevails.

MR MAKANJEE: Thank you, Mr Chairperson.

PERRY NHLANHLA DLAMINI: (s.u.o.)

MR MAKANJEE: Thank you, Mr Chairperson. Mr Chairperson, after taking instructions from my client, my instructions are that my client is adamant that it was a mistake on the form and he does wish to proceed with his application. The findings can only be left in the hands of the Panel. Thank you, Mr Chairperson.

CHAIRPERSON: Any other questions?

MR MAKANJEE: No more questions, thank you, Mr Chairperson.

MR SWANEPOEL: Thank you, Mr Chairperson.

Just briefly, Sir, whose idea was it to go and bomb this house?

MR DLAMINI: The idea was from Sally(?) but the commander was comrade Themba and Bafana and Jacky and myself ...(intervention)

CHAIRPERSON: Just repeat that name please.

MR DLAMINI: The idea was from all of us but the commander was comrade Themba.

CHAIRPERSON: Now just repeat the names that you mentioned about a minute ago.

MR DLAMINI: Themba Xaba, Bafana Baloi, Jacky Macheo and myself.

CHAIRPERSON: Is that all?

MR DLAMINI: Yes, that's all.

CHAIRPERSON: That's not all the names you mentioned.

MR DLAMINI: Sally was the one who was responsible for us to fill the amnesty application forms.

CHAIRPERSON: But you were asked whose idea it was and you mentioned a name similar to Sally, was that a mistake?

MR DLAMINI: Yes, it was a mistake, I didn't understand the question very well.

CHAIRPERSON: I find that strange because all the other names you mentioned you repeated, but anyway you say it was a mistake.

Yes, Mr Swanepoel?

MR SWANEPOEL: Thank you, Mr Chairperson.

And when did you first decide to attack this house?

MR DLAMINI: We first decided as an organisation. As members of the ANC we decided that it was important for us to attack houses which belonged to people who were like Mr Msizi because they were harassing people and some people even lost their houses because of them. Therefore we decided that if we can burn his house, he will be forced to resign as a councillor.

ADV DE JAGER: The question was only this, when did you decide? Now you've given us a long answer with reasons and you didn't listen to the question, you only recited your own answer.

MR DLAMINI: We decided on the very same day.

MR SWANEPOEL: About what time?

MR DLAMINI: It was about 7 o'clock. We started preparing the petrol bombs and then we waited for a while and then at 9 o'clock we started attacking Mr Msizi's house.

MR SWANEPOEL: Did you see what damage was done to the house after the attack?

MR DLAMINI: I didn't see that, or the damage the same day. The next day we came and we realised that the windows were broken and the roof but the walls were still ...

MR SWANEPOEL: I have nothing further, Mr Chairperson.

CHAIRPERSON: Ms Patel?

MS PATEL: No thank you, Honourable Chairperson.

CHAIRPERSON: Any re-examination, Mr Chairperson, thank you.

WITNESS EXCUSED

MR MAKANJEE: Mr Chairperson, the next applicant we call is Embrose May, application number 7208/97.

ADV DE JAGER: Is there no other applications connected with this?

MR MAKANJEE: As far as I am aware, there is no other application connected to this incident.

MR MAKANJEE: Volume three, page 157.

CHAIRPERSON: Mr May, what language would you prefer to use?

MR MAY: Xhosa.

CHAIRPERSON: What number of the machine would that be?

INTERPRETER: Unfortunately we don't have a Xhosa interpreter.

CHAIRPERSON: Are we able to get one tomorrow?

MS PATEL: I'll make the necessary arrangements, Honourable Chairperson.

MR MAKANJEE: We don't have any other applicants ready today. These were the five applicants who were in fact ...(intervention)

CHAIRPERSON: From tomorrow onwards all the applicants will have to be here.

MR MAKANJEE: As discussed earlier.

CHAIRPERSON: Ja. We'll adjourn till 9 o'clock tomorrow morning.