--------------------------------------------------------------------------CHAIRPERSON: Good morning. It is Thursday the 11th of November 1999. We are continuing with the session of the Amnesty Committee at JISS Centre in Johannesburg. We will deal with the application of L G Mohale this morning where the parties have to present their submissions on the merits of the application. Yes Mr Knopp have you got any submissions on the merits of your client's application?

MR KNOPP: Thank you Mr Chairman.

MR KNOPP IN ARGUMENT: It's my submission that there are three criteria which had to be satisfied in order for the Panel to grant amnesty to the applicant. The first is, does the applicant's application comply with the requirements of Act No 34 of 1955? Secondly, were the acts or offences committed by the applicant associated with a political objective? Thirdly, did the applicant make full disclosure of all the relevant facts to the Committee?

I'm going to go through the various motivations, but at the end of the day I'm going to submit that the applicant has complied with all these requirements.

Concerning the first requirement. Does the application comply with the requirements of the Act? The applicant's written application for amnesty is enclosed in the bundle before this Committee on page 126, 127. This is made on the 6th of December 1996.

CHAIRPERSON: Yes, I don't think you need to address us on the formal requirements, perhaps you can deal with the remaining two.

MR KNOPP: Thank you.

CHAIRPERSON: And possibly deal with that in respect of each of witnesses and the various incidents we have.

MR KNOPP: Thank you. The offences which we're concerned with here is the murder of the one one victim, the late Rev Namane. The date of that is given as 25th of June 1992 but I've gone through the court record again and the indictment was actually altered. The incident in fact took place on the 15th of June 1992. One can recall that the deceased didn't die immediately. After he was shot, he was first taken to hospital and he died in hospital, so the date of death is in fact 25th of June, but the instant in fact happened on the 15th of June.

The second instant is that of the attempted murder of Samuel Songo. The date of that is 26th of August. Fortunately that victim survived, therefore the conviction was only for attempted murder, not for murder.

The remaining offences relate to the unlawful possession of firearms and ammunition. The firearms involved here are the Stashkin pistol which the applicant, on his version, says was issued to him by the MK, in fact by Twana and Radebe together with an AK47 plus ammunition for these firearms. The other firearm which is relevant here is the .38 pistol, which is connected to the ...(intervention)

CHAIRPERSON: The .38 was that a revolver?

MR KNOPP: .38 revolver, sorry, which is connected to the attempted murder. We've heard evidence, both from the applicant and Ashley Sessing that it wasn't strictly issued by the MK for the purposes, it was recovered during a private instant but from part of an arms cache, so to speak, of the unit. So those are the three instances.

Firstly, concerning whether the acts were politically motivated or not, in this connection for what it's worth, I'd like to refer to the judgment of the high court trial, which has been reported in the law reports under State vs Mohale and Another 199 volume 2 SACR (i) Witwatersrand. However the judgment as reported in the Law Reports doesn't deal with the details of the sentence, but the judgment also appears in the bundle before this Commission from page 40 to 50, so I'd like to refer to passages of this judgment.

On page 42 of the judgment on the merits, the Judge had to consider whether the, incidentally the applicant was Accused 1 in that case and the witness Allie Tliane was Accused number 2, so the Judge had to consider whether Accused 1, that's the applicant, was a member of MK and he was acting out of political conviction and so on, so on page 42 of the judgment the Judge said, from line 21 onwards:

Then furthermore on pages 48 and 49 of the bundle which was part of the sentencing stage of the judgment, the learned Judge had to consider whether the offences were committed out of personal motive or some other personal circumstance, perhaps financial motive, were the political considerations and in this connection the learned Judge said the following:

And then the Judge goes on at the end of page 48 and 49 to allude to the possibility of political amnesty.

CHAIRPERSON: Yes of course the only real relevance of this kind of thing to us is possibly an indication that even at the trial stage there was a reference to the fact that this particular matter could have been politically motivated.

MR KNOPP: Yes.

CHAIRPERSON: Otherwise the views of the trial judge are really not all that relevant to our purposes. He was of course commenting on what was placed before him. We're performing a totally different function so you know, that's really the value of this sort of thing, otherwise we're not bound by what the court said. We, from our experience, we are always taken aback by the extent to which the administration of justice is being perverted and frustrated through misleading courts, presenting false testimony, so we have found that there is a limit to this sort of material. I thought I'd just raise it in case you had thought that perhaps you must go in great detail through the judgment which is not really necessary.

MR KNOPP: Yes, thank you Mr Chairman. Just to place things in perspective of time, the events occurred in 1992. The court is probably not aware that the 19th of October 1993 the applicant was arrested. He was not arrested for the offences which form the subject matter of the High Court trial and this tribunal, he was arrested for some unrelated offence.

Then on the 1st of November 1996 after having made arrangements for the police to come to Leeukop prison, he made his first confession and on the 8th of November 1996, he made his second confession. Just for the assistance of the tribunal, for some or other reason only the second confession was included in the bundle from pages 3 to 12. For some or other reason the first confession dated 1st of November, was not included in the bundle. Perhaps it's merely an administrative oversight or perhaps some difficulty in obtaining that document. However for the tribunal's information, the reason why there are two confessions and they were both made to the same Magistrate incidentally, is that because the confessions were so long, the Magistrate could not finish the confession completely on the 1st of November and therefore the applicant had to be brought back on the 8th of November to complete the second phase of the confession. Then, as I've already referred to, in December 1996, which is the date of the written amnesty application of the applicant, then the applicant stood trial in the High Court last year, 1998 and this year his amnesty hearing.

CHAIRPERSON: Why was his trial not suspended pending these proceedings?

MR KNOPP: I'm not quite sure. By the time I was seised of the brief, so to speak, it was like half-way through the trial and...

CHAIRPERSON: You're not sure what happened in the earlier stages?

MR KNOPP: I'm not sure what happened in the earlier stages but my point is this, that perhaps if the Amnesty Hearing had taken place before the trial, that trial would never have taken place in the first place.

CHAIRPERSON: Yes, well often that's the first thing that the legal representatives do. They stay the criminal proceedings. They stay the proceedings in the normal course and they deal with these proceedings, the amnesty proceedings first and often it saves resources, time, etc and makes good sense that is why it's just peculiar that your client having applied 96 for amnesty, his trial commenced in wherever in 97 last year and continued to it's conclusion without anybody mentioning a word about the fact that he's applied for amnesty. The court ...(indistinct) to have raised the point as well. It is normally for the accused to apply, to take corrective steps but I'm quite sure the court might very well have raised the possible waste of resources, but in any case, you're not sure what happened.

MR KNOPP: So that is the time context in which these events took place.

CHAIRPERSON: Yes.

MR KNOPP: Concerning the evidence of the if I can call them witnesses before the Panel, the first one was the applicant himself. He testified that he's now 31 years of age, so in 1992 he must have been 24 years of age and it's my submission that at the age of 24 one is still relatively young, one's character is still being formed and it's my submission that at that age, after having being trained in exile in both military affairs and politics, he must have been susceptible to instructions or suggestions from Commanders and leaders on his return to Tembisa.

1992 was before the first democratic elections in this country and in the High Court the Judge's comment on page 47 of the bundle:

CHAIRPERSON: I think that is common cause. You can accept that this Panel is aware of that situation.

MR KNOPP: Yes. So in other words the acts were not committed when things are relatively more settled today after two democratic elections.

CHAIRPERSON: Yes.

MR KNOPP: This was before the first democratic elections and there was a lot of political vying for possession and so on.

CHAIRPERSON: Yes.

MR KNOPP: And also lots of hate and suspicion about what was considered the old apartheid structures, councils and so on.

The objective as claimed by the applicant concerning the offences was to consolidate the ANC operations and stop interference by victims. Concerning Namane, Namane was considered to have aligned himself with the Civic structure, viewed as counter revolutionary to the ANC aligned Civic structures and concerning Songo, it was considered that he was unpopular among the community, most of the community because of his historical involvement with former council structures in Tembisa.

Now it's my respectful submission that the issue here is not whether those two victims, the deceased and Songo, were in fact guilty of the allegations as described, the issue here is whether there could have been a perception in the community that they were guilty of those allegations and furthermore whether the Twana/Radebe concerning Namane and Tliane, concerning Songo, could have told the applicant that they must be eliminated, the victims must be eliminated because of those so-called crimes and for instance when Radebe who was in the witness box, the one Panel member specifically asked him whether it was not unheard of that Councillors would be murdered because of it was considered that they were aligned to apartheid structures and the witness, after first being reluctant, later on conceded that there is such a possibility. So, then the applicant in that time context, 1992, returning to the area is now being told to murder people, assassinate them, eliminate them by Commanders and a leader and it's my submission that it's highly probable that the applicant would have been influenced by being told to do these things under those circumstances.

The question of course arises, how is it that there were political acts of violence perpetrated at a time which although before the first democratic elections, were after 1990, like the date of 1990 with respect is important because on the 6th of August 1990 the ANC formally committed itself to a cessation of armed hostility, there seems to be, on a superficial level, a conflict of contradiction in that respect. That's the one problematic aspect with this matter.

The second problematic aspect, if I may call it such, is it's all very well the applicant taking instructions to commit an act from MK Commanders, but with Allie Tliane, he's not a soldier or MK by any stretch of the imagination, he's merely a political leader. How is it that the applicant then could take instructions to act in committing a murder on his behalf?

CHAIRPERSON: Yes, that is perhaps not such a major problem, provided that the source of the orders represent leadership of the organisation. It might not be problematic. Perhaps a bigger problem that your client has in this matter, is that he has been contradicted on both incidents and perhaps that is where the biggest source of potential difficulty lies, which I'm quite sure you agree with.

MR KNOPP: Yes, I'm getting to that. But just briefly concerning these two problems, I want to refer the Panel to the ANC's statement to the Truth and Reconciliation Commission, which I've referred to earlier and on page 47 of the ANC statement with more specific reference to the ANC's approach to the role of armed actions in the struggle for democracy and which targets he considered legitimate to continuous threats in all ANC policies and public statements on this issue have been that armed struggle is only one of a range of interrelated methods of struggle with political leadership at all time directing the arms struggle, so here we see that the tradition in the ANC is always that the military action was never an end in itself, it was only to, as a vehicle, to execute the will of the political leadership, that's my interpretation of the statement.

Then on page 48 of the statement:

So I would argue that in a sense the victims could have been regarded as, the applicant has called them proxies of apartheid.

MR LAX: Mr Knopp what, so that we don't confuse things here, that aspect of the statement is referring to a particular time of the struggle, are those comments applicable to a later phase, particularly as you've raised with us the fact that the arms struggle was ceased at that point in time and are these in fact not policy statements referring to a prior period? You see the structures that the ANC had to politically make the struggle accountable were quite detailed and quite extensive and those statements should be seen in that context, should they not?

MR KNOPP: Yes, that is correct. I'm coming ...(intervention)

MR LAX: We're dealing with a subtly different time frame here. One accepts that the so-called stooges of apartheid were legitimate targets at one time or another so that's not in issue I don't think.

MR KNOPP: If I may come then to the 1992 period. On page 65 of the Statement, I quote:

Then later on:

And in the next paragraph:

So, it's my submission that this statement, taken together with the applicant's testimony that he set up SDU Units at that time. He did this as part of his duties as an MK cadre, that he's assisted in this by Twana and Radebe and obtained firearms and ammunition from them and that despite the cessation of violent acts, there were still violent acts being perpetrated and furthermore according to the applicant, there was a lot of suspicion whether the government would keep to it's undertaking and therefore it was thought prudent to keep caches of firearms and operate underground.

MR LAX: It's common cause that SDUs were formed and that they had arms and that they kept those arms hidden from the police and that they were raided continuously. It's common cause that there was violence during that period. Your client however, places himself outside the bounds of the SDUs in a so-called MK unit. Now MK units weren't authorised to act at that time. Only SDU units were authorised to act at that time, in defence of the community. That's one of the problems, from my point of view, I'd like addressed.

MR KNOPP: Mr Commissioner, it's my respectful submission that things weren't well-organised at that time in Tembisa. There wasn't a well-oiled military machine over there like perhaps SANDF or the Police Force, things were a bit chaotic, cadres were coming from exile and it's my submission that there had not been uniformed training, the discipline was not all that strict and it's my submission that there must have been some confusion between strictly the SD units and the MK units, not always clear boundary and also not always a clear boundary concerning what orders or instructions the applicant was obligated to carry out.

CHAIRPERSON: Yes, it appears that the returnees were assumed into the local structures.

MR KNOPP: Yes.

CHAIRPERSON: In fact I think that the applicant said that he didn't come back with any specific instructions from the MK Command. They accepted as returnees that they had to join up with the local situation, to put it that way.

MR KNOPP: Yes. If I could borrow a term from Administrative Law, perhaps there was a sort of a legitimate expectation that after having been trained in exile to perform military functions, he then came back and assumed that he was supposed to do that.

CHAIRPERSON: Yes, there wasn't the sort of conventional MK operation against government installations, that sort of high-profiled warfare going on, those kind of hostilities had been ceased in terms of the Agreements that were entered into by the parties, but they joined up with the local realities, they were now citizens back at home, residents of the townships and so on and so forth. Obviously they participated in whatever was going at that stage, it seems.

MR KNOPP: In this connection it's interesting that Allie Tliane had a long acquaintance with both Patrick Twana and Radebe. They'd known each other for a long time. Although this didn't come out specifically in their evidence, assuming that for the sake of argument, the applicant had performed the murder of the late Rev Namane on instructions of Twana and Radebe, that was in June 1992, now Allie Tliane gets to hear that this hit man is in town, he's been trained overseas, he's friendly with the brother-in-law of the hit man and this now is a good opportunity to use him to do the dirty work with Namane. It's my submission that that is highly probable, if one accepts the first proposition.

Concerning the applicant's evidence himself, it's my submission that he was not compelled to come out with any information whilst he was serving out a sentence in Leeukop, he could have remained silent, yet all of a sudden he comes out with these two confessions in 1996. It's my submission that the confessions made in those circumstances tend to indicate that he has made full disclosure of the facts as he experienced them and what is more, he's been consistent, largely consistent, in his version from 1996 throughout the High Court trial, although in the High Court trial there were some problems because his first advocate was, according to him, not carrying out his instructions, but from when I took over as counsel and also his version here before this Tribunal is largely consistent. So it's my submission that he has made full disclosure.

CHAIRPERSON: Did he say in his confession that Twana and Radebe gave him the orders to kill Namane? If you can remember offhand, I'll look at the confession again.

MR KNOPP: No, no, that's not so. I'll check up on that point but if my memory serves me correctly, he didn't say that.

CHAIRPERSON: Yes.

MR LAX: Just on that point, that's contained in the first confession I would think, because the second confession deals with the Songo incident and it might be helpful if we had a copy of that in due course please.

MR KNOPP: If the Tribunal will just bear with me.

CHAIRPERSON: Have you got a copy of that first one?

MR KNOPP: I have a copy. I've made some marks on it, but ...

CHAIRPERSON: Oh, is that the one you're looking at?

MR KNOPP: Yes. If the Tribunal doesn't mind, I can have copies made for you.

CHAIRPERSON: Yes. Does it jog your memory a bit having looked at that? Is there any reference to Twana and Radebe there?

MR KNOPP: Yes, indeed there is.

CHAIRPERSON: It doesn't matter.

MR KNOPP: Yes, the Namane incident is linked to Twana and Radebe and then he touches on his stay in KwaNdebele and how he had to come back for monies from KwaNdebele and the second confession goes into, I think, into the other, the Songo offence.

CHAIRPERSON: We'll have a look at that. Thank you Mr Knopp.

MR KNOPP: So it's my respectful submission that the applicant has been largely consistent and he's made full confession. He did so in his confessions, he did so in the High Court and he's done so before this Panel.

I'm going to get presently to the evidence of the other witnesses but, so my main submission is that the Tribunal should accept the version of the applicant above those of the other witnesses.

However, my alternative submission is this, even if the Panel finds that Twana, Radebe and Tliane, one or more of them, did not in fact instruct the applicant to commit these crimes, the preponderance of the evidence would seem to suggest that it's quite likely that some other persons told the applicant to commit these crimes in a political context. I say that for the following reasons: If one looks at the Namane incident, the applicant didn't know this victim from a bar of soap, if I can use that crude term. He comes back from exile, he doesn't know who the victim is, he's never heard of his name before, he doesn't even know where he lives, he's got no personal connection or grudge or argument with the victim, then all of a sudden he's got to make elaborate preparations to stalk this victim and then go and murder him.

MR SIBANYONI: In the same breath, wouldn't you say concerning his hiding place in KwaNdebele, the applicant didn't know Ephraim Gohale or the other person Felapi, but he ...(indistinct) he knows Ephraim Mohale, they were together in prison and also on some political organisations?

MR KNOPP: Yes, I would submit that too.

CHAIRPERSON: There is, speaking for myself, there is some force in your submission concerning the lack of a personal motive on the part of the applicant to act against Namane.

MR KNOPP: Yes.

CHAIRPERSON: The only issue that arises on the basis of your submission is that if it is found that neither Twana nor Radebe ordered him to commit that deed, then of course the question of a full disclosure comes into the picture and even though more than likely it would have been a politically motivated attack and more than likely emanating from some or other political authority in the area, you might, your client might have difficulty with the full disclosure element of it.

MR KNOPP: Yes, with respect, I foresee that problem.

CHAIRPERSON: Yes.

MR KNOPP: My respectful submission in that case would be that applicant would then have made full enough disclosure before the Tribunal. We know that principle in our criminal law connection with intent dolus, is a principle called, doctrine called dolus indeterminatus. Say you aim at one particular person who has an identity in an attempt to kill him, but for some or other reason the shot doesn't strike him, it misses him and strikes someone else that one had no intention of striking in the first place, one is just as guilty of the murder or culpable homicide of the other victim as one is of the first, so in that context I would argue that even if it isn't one or more of these Commanders or leaders that gave instructions, someone did give him instructions.

MR LAX: Surely the issue of instructions is a relevant fact?

MR KNOPP: Yes.

MR LAX: And the Act speaks about full disclosure of the relevant facts.

MR KNOPP: Yes.

MR LAX: Furthermore your client is relying on the fact that he received instructions from someone. If you don't disclose the source of the instruction, isn't that an issue which affects full disclosure? Yes, with respect, it would be very relevant.

CHAIRPERSON: Yes, what you'd also bear in mind, I know that we are jumping a bit, but just to give you some advance notice, the significant difference between the two incidents, your client is contradicted on both by would-be instructors. However, in respect of the second incident, in respect of Songo, your client is, on the face of it now, let's assume for the purposes of this debate, he seems to be corroborated by at least somebody.

MR KNOPP: By Sessing.

CHAIRPERSON: Yes. And then my colleague has referred to one of the factors that would come into the picture in regard to KwaNdebele and so on and then various others that one can identify. It seems to affect the probabilities. However, there's a material difference in respect of the first incident because there your client is pitted against the evidence of the instructors who say that they have not instructed him to do this.

MR KNOPP: Yes.

CHAIRPERSON: And I'm quite sure you will deal with the significance of that.

MR KNOPP: Yes.

CHAIRPERSON: And how we should be approaching this matter if for example it is found that in respect of the one your client has not made a full disclosure in regard to the source of the instructions as the two people that he alleges gave the instructions did not, his version is rejected on that score, but on the second incident, his version is accepted. Whether there are any submissions to be made around that sort of approach.

MR KNOPP: Thank you.

CHAIRPERSON: But as I say, just to give advance notice. I'm quite sure you'll get to all these things.

MR KNOPP: Thank you Mr Chairman. Concerning, if I may get then to actually assessing, this was the witness called by the applicant to support his case. It's my submission he corroborates the applicant on the attempted murder of Songo. Of course the difference between the two instances is that in the first instant the applicant acted as a sole perpetrator. He didn't have a right-hand man or other persons acting with him as accomplices. If that had been so, perhaps he would have had witnesses to call to support him, but in the second instant, the Songo instant, the applicants had then formed the SDU units and in this particular unit it was Simon himself as the Commander and Sessing, whom the applicant refers to as his right-hand man, the so-called accomplice. So that's why, it's my submission, that's why he's in a position to call Sessing on the second instant, but he doesn't have witnesses for the first.

I've already touched on this aspect during the Hearing, that for the Tribunal's information, Sessing was warned as a possible accomplice during the High Court trial in terms of Section 204 of the Criminal Procedure Act. That was at the commencement of Sessing's evidence. In the judgment of the High Court, it's interesting that, page 44 of the bundle:

So there are some problems with Sessing's evidence but it's my submission that Sessing does largely corroborate the applicant concerning the Songo incident and what is more, although it doesn't appear from the judgment as published, I was in the High Court trial and at the end of everything the Judge in fact granted Sessing indemnity in terms of Section 204 of the Criminal Procedure Act, so despite any reservations which the judge might have had concerning Sessing's credibility, it does seem as if the judge was satisfied to indemnify him, that he's made full disclosure in the High Court and likewise my submission here is that I would ask the Tribunal to accept the evidence of Sessing as being a full disclosure and the truth as well and that definitely supports the applicant at least on the second instant.

One can also see what type of hit men were used in the offence. These are not persons in their twenties, sorry thirties and forties, mature cadres, they're youngsters. Sessing had barely come from school and the applicant, 24 years old, young political firebrands, not very mature. That's the type of hit men that were used for the tasks.

It's my submission there is some slight difference about whether Sessing did freeze when he was supposed to shoot the victim himself, whether there was an exchange of the firearm from Sessing to Simon or not, but it's my submission that those are minor discrepancies and in essence, his version does corroborate that of the applicant.

Still on the second instant, although not in strict chronological order, I come to Allie Tliane, because he was the last witness in fact. Now it seems to be common cause that the applicant didn't know Tliane from before. There was never, and even when he got to know him, there was no real close personal relationship between the two men. The connection was the brother-in-law of the applicant George Bila, he was also a political activist and served on the same committee as Tliane. There was that connection.

Now one knows from the evidence that the applicant had been using the motor vehicle, or motor vehicles of George Bila, in other words his own family motor cars and it seems there was a shortage of motor cars in Tembisa, people had to borrow cars of other people to use and I think it was Patrick Twana that said they did use George Bila's motor vehicles from time to time for various things, requirements. So it seems that George Bila was the Avis Car Hire company, if I can call it that, of the Tembisa activists, political activists. But in the Songo instant lo and behold, it's not the George Bila vehicle which is used. We know for a fact that Allie Tliane obtained the transport from someone else, some old man he said Julius Mane.

CHAIRPERSON: Yes and under false pretences.

MR KNOPP: Under false pretences and to the prejudice of the owner of the motor car whom he has a stronger connection to than the applicant and ...

CHAIRPERSON: And it appears that this owner of the vehicle was not just an average resident, he was politically involved, he was the chairperson of one of the local structures there.

MR KNOPP: Yes.

CHAIRPERSON: So it's not as if it would be somebody who's standing unsympathetic towards returned MK cadres who might have personal difficulties with transport even if you know it's a well-looked after car of an older person.

MR KNOPP: Yes. Then the applicant had no valid driver's licence. Allie Tliane, he says, well he assumed he must have had a licence because he had been driving the motor car of his brother-in-law, but if one's concerned about the safety of a motor car, of a close contact, surely you do some more diligent investigations about the valid driver's licence which he concedes he didn't do. So the transport is obtained under false pretences to the prejudice of the owner of the car and then entrusted to the applicant, on Tliane's version not for political purposes, but for the applicant to take his mother to Standerton. It's my submission, with respect, that this whole version of Tliane is absurd and it's a pack of lies.

The second aspect concerning the criticism of Tliane is that we know that SANCO and other political organisations were not wealthy organisations in Tembisa. They had to scrounge around to find a few rand for petrol and so on when cars are available.

Now it comes to - the applicant makes these two confessions and now all of a sudden Tliane, with a delegation from SANCO, comes to visit the applicant in Leeukop prison and lo and behold an amount of nearly R40 000 is conjured up from SANCO coffers to pay for the legal defence of the applicant and the same organisation also funded the legal defence of Tliane himself.

MR LAX: The only difference, Mr Knopp, is that this point was 96, 97, 98, SANCO was quite a different structure, the whole political scenario was different and of course that's just from a financial point of view, there was a completely different situation to what existed and pertained in 92, but that aside I think the issue of the delegations and all that stuff, well that's a different matter.

MR KNOPP: Yes. It's my respectful submission, the applicant qualified for legal aid, he was sitting there in prison, he was unemployed and in fact he did get legal aid eventually, that's how I was instructed in the matter.

MR LAX: Of course the applicant didn't refuse the assistance.

MR KNOPP: No, he didn't refuse the assistance until a certain point and that point came in the High Court trial when according to the applicant, that counsel was not carrying out the instructions of the applicant for obvious reasons. It's the applicant's version that the reason why funding was obtained from SANCO with Tliane behind this, this was referred to in the High Court judgment on page 45 of the bundle:

And that's what the applicant says, that when this delegation came to the prison, the funding for legal representation and so on, the whole idea behind it was to persuade the applicant not to implicate Tliane in the High Court trial.

MR LAX: But of course if that was the thesis, why did he then accept the assistance and then appear to go along with that plot, if that was in fact the reason why they came to see him, and then only later changed his mind.

MR KNOPP: Yes.

MR LAX: So, it's a situation where you can't have your cake and eat it, sort of, the one thesis is correct, then his conduct seems to defeat it. Of course the judge does go on to say in the next sentence:

but all I'm doing is saying that if one makes one inference, you've got to stick with the logical consequences of that inference.

M KNOPP: Yes, I won't labour this point then too much, but ...

CHAIRPERSON: We've taken the point.

MR KNOPP: Yes. So it's my submission that this Tribunal cannot rely on the version of Allie Tliane, he's a self-confessed liar, his version is absurd, it's a lying version and I would ask the Tribunal to accept the version of the applicant above that of Tliane, the applicant as supported by the evidence of Sessing.

Coming then to Radebe and Twana, these were high up functionaries in MK and Twana in the ANC in Tembisa and it's my submission, one gets the impression that they're trying to give the impression to this Tribunal that whatever they did was acting in accordance with the official policy of the ANC and the MK. It's my submission that they would have noted not to own up to having instructed the applicant to commit these offences because it may bring the ANC and the MK into disrepute. It's not strictly in accordance with the policies of the ANC and the MK.

It's my submission furthermore that they're underplaying their role and the Tribunal should be wary when approaching their evidence. Because they're not owning up, it's easy to see why the applicant feels betrayed at the end of the day. As he stated:

So that's the feeling that the applicant ...

CHAIRPERSON: What possible reason did Twana or Radebe have for wanting to get rid of Namane, having him killed?

MR KNOPP: Well I would submit, that is one of the puzzling aspects of this whole thing. What is clear is that there were political divisions to a greater or lesser extent. There were divisions between the PAC and the ANC. That victim was a PAC member.

CHAIRPERSON: How strong was the PAC? How much of a force were they, on what is before us?

MR KNOPP: Apparently not very strong. Then there was the association with the old council.

CHAIRPERSON: But was there - I had the initial impression that Namane was actually a, or had been a councillor but then from the subsequent testimony it appears that he hasn't been, it appears that he's been on the side of the liberatory forces all along.

MR KNOPP: Yes. Yes.

CHAIRPERSON: And it appeared he was part of the Tembisa Civic Association, the original community structure which was a sort of a church, whatever the expression is, that accommodated, an umbrella sort of a body that accommodated all sorts of political sentiments and then there was this ANC, pro ANC breakaway.

MR KNOPP: TRA.

CHAIRPERSON: Yes, the TRA subsequently.

MR KNOPP: Yes.

CHAIRPERSON: But Namane seemed to have been part of the TCA structure.

MR KNOPP: Yes.

CHAIRPERSON: And seemed to have been into the Pan Africanist Congress structures.

MR KNOPP: Yes.

CHAIRPERSON: So I became a bit confused and my eventual impression, the one that lingers on now is that he was not linked to the council structures, he was not a councillor.

MR KNOPP: Yes.

CHAIRPERSON: And that is probably why I was thinking of the possible reason for getting rid of him. He seemed to have been though into some sort of a property development business.

MR KNOPP: Yes.

CHAIRPERSON: In respect of which Twana and Radebe don't seem to have any sort of interest. I don't know what Tliane's position is in respect of that sort of activity, bearing in mind of course also that Sessing said at one stage that Tliane reminded him about the Namane hit. So it's all those kind of issues that are hanging loose.

MR KNOPP: I concede that on the face of things, no strong reason has come out for murdering that victim but it may be that there was a reason which didn't come to the fore and which Twana and Radebe aren't being honest about.

CHAIRPERSON: Yes. There are all these reasons, I mean, for conduct, except that of course here we've got to weigh all of these things up. You have these two versions, mutually exclusive versions, so we have to look at all the surrounding factors to try and assist us in coming to a conclusion.

MR KNOPP: Yes, but assuming that there was some other reason fro Radebe and Twana wanting to take out Namane. It's not to say that they would be honest with the applicant in telling that is the reason, they would then try and clothe the whole thing in a respectability of a political motivation.

CHAIRPERSON: Yes, it was always open to abuse, to use people with a military knowledge, to settle personal feuds, yes indeed, so that is always a possibility particularly when it comes to the political realm where often there are these personal differences.

MR KNOPP: Yes.

MR LAX: Just one other thing on the issue of Namane. It was your client's version and his evidence in chief that Namane was a problem because he was associated with the councils. It wasn't just what his instructions were, he appeared to have verified that himself and in fact that was never so.

MR KNOPP: Yes.

MR LAX: Even he was under that misapprehension, even if we give him the benefit of the doubt, which sort of - one wonders how that could be, when he was clearly not of that ilk.

MR KNOPP: Well perhaps it was some disinformation that was fed to the applicant. So the question then arises why the applicant would, out of the blue, then accuse these two Commanders if they had nothing to do with the instant. It would have been easier to have pointed a finger perhaps at the people that had disappeared from society or had since died, because one couldn't then follow up the leads but here he points at two MK Commanders. In fact my impression, when I got the brief to defend the applicant, I saw the two names and in going through the papers I thought to myself, these must be two persons that have either disappeared or can't be traced and lo and behold I then managed to trace them to Tembisa, they were still very much around, so that's why I'm arguing, with respect, that it seems very strange that the applicant would point his finger at two persons who are very much still around in the area.

CHAIRPERSON: This whole statement was taken first by the police, the confessions or the statements. I know Radebe made a statement, Twana as well, if I'm not mistaken. Were those taken first, prior to the 1st of November, or ...?

MR KNOPP: If I may just be given an opportunity to refer to the bundle.

CHAIRPERSON: Yes.

MR KNOPP: He only made a statement in August 92.

CHAIRPERSON: Who's that?

MR KNOPP: Mr Tliane, that's on page 16 of the secondary bundle and Radebe and Twana in November and October 1996.

CHAIRPERSON: November and October. Who made the October statement?

MR KNOPP: That's Twana.

CHAIRPERSON: Twana, so that was before the confessions was it?

MR LAX: No the confession was in August.

MR KNOPP: The confession was in November.

CHAIRPERSON: You said November?

MR LAX: November, I beg your pardon.

MR KNOPP: November 96.

CHAIRPERSON: November 96?

MR KNOPP: Yes.

CHAIRPERSON: So Twana's statement was prior to the confession?

MR KNOPP: Yes.

CHAIRPERSON: And what about Radebe?

MR KNOPP: Radebe, ...

CHAIRPERSON: After the confession?

MR KNOPP: Yes.

CHAIRPERSON: 20th of November?

MR KNOPP: Yes.

CHAIRPERSON: So the police, did the police get to Twana first before they got to your client?

MR KNOPP: Unless the dates are wrong, it seems like that must have been the case.

CHAIRPERSON: Yes. Yes, thank you.

MR KNOPP: So it's my submission that the Tribunal should accept the version of the applicant and should find that he has satisfied all the requirements which I've dealt with. Those are my submissions. If I may be given an opportunity perhaps later I can have copies made of the first confession of the applicant.

CHAIRPERSON: Yes, thank you, we'll appreciate that Mr Knopp. Ms Vilakazi?

MS VILAKAZI IN ARGUMENT: Thank you Mr Chairman. As I indicated yesterday, that the submission of the Namane family would form part of my closing argument, I would start off with their submission.

I'll start first with the message that Mrs Namane asked me to convey to the applicant himself and the message is that firstly she feels compelled as a Christian to forgive him for having killed her husband because as a Christian she also expects that she would be forgiven by those that she transgresses against, but that her willingness to forgive does not, on it's own, mean that all is forgiven. Her message is that she's not in a position to forgive the applicant on behalf of the deceased himself and she's also not in a position to forgive on behalf of her kids and all the people who have been affected by the death of Mr Namane. She further says that by killing Mr Namane, the applicant has not only deprived her of her husband, but it has affected quite a number of people and it has affected the deceased himself in the sense that he has been deprived of the opportunity to be part of the development of his own kids and also to play a meaningful role in their upbringing and to see how they develop as kids and into adulthood. But the children have also been affected by this in the sense that they have not had a fatherly figure to look up to in their critical developmental stages of their lives. She says that Rev Namane was a very active person in the Tembisa community. As a Reverend in his congregation, or in his church, he was involved with raising funds for the building of a church for the community and he was the key figure because of the connections that he had in the fund-raising campaign. His death has affected the process of building the church for the community. Rev Namane was also actively involved in finding temporary or casual jobs over holidays for youth within his community. His death has affected those youths who benefited from his involvement in that regard.

It is on that basis that Mrs Namane feels that her own perceptions of her own reaction to the plea for pardon by the applicant play an insignificant role. With regard to the application itself, I should mention that the family came to the hearings with quite an expectation. They went through the trial. The trial has at least to some extent, assisted the family in answering the question as to who killed their loved one. But the question that remained unanswered at the conclusion of the trial, or let me say two questions that remained unanswered were firstly who gave the instructions that Rev Namane should be killed and secondly, why did he have to be killed?

So the family expected that these hearings would provide the answers to those two questions. The family understands the context in which this application is made being that it is part of the process of reconciliation and therefore the family appreciates the fact that it is expected to accept what has happened in a positive spirit, painful as it may be, but the family expects also that this process would help it to close the chapter. It is my submissions that the expectations of the family are yet to be met.

The Committee is required in terms of Section 20 of the Act to focus on the requirements outlined in determining whether or not to grant amnesty. It is my respectful submission that the focus should not be only on the three requirements but that the Committee should at all times be mindful of the greater context in which the Hearings take place. The context being that of seeking reconciliation amongst perpetrators and victims and it is in that context that the whole matter should be approached. It is common cause, I submit, that the applicants did not have any personal grounds to kill Mr Namane. It has never been actively conversed that the applicant knew Rev Namane personally or that he had anything to do with Rev Namane and on that basis, I would submit that it should be accepted that the applicant did not have any personal motivation to kill Rev Namane.

The question that remains is, or before I come to that, it is also I submit common cause that the applicant acted on instructions. Now the question that is pertinent is, whose instructions was he acting on? The version of the applicant is that, with regard to the death of Rev Namane, he was acting on the instructions of Mr Radebe and Mr Twana. Mr Radebe and Mr Twana have vehemently denied, vehemently and consistently denied ever giving instructions to the applicant to kill Rev Namane. The caution is, why would the applicant implicate Mr Twana and Mr Radebe, in view of the fact that firstly the applicant was not arrested in connection with the death of Rev Namane, he volunteered information relating to the death, so why would he initiate the process and then lie about it? That is the question that hangs in the air and the question that has to be answered.

The next question is, if indeed it is to be accepted that Mr Twana and Mr Radebe did not give instructions to the applicant to kill Rev Namane, Mr Twana and Mr Radebe being prominent members in the Tembisa community would at least have a hint as to who would have given those instructions or who might be behind the killing of Rev Namane. I posed the question to Mr Twana as to who could have given instructions and his response was that he doesn't know.

CHAIRPERSON: Isn't it a bit difficult for him to speculate under oath at a very public hearing of this nature? A) he might very well have suspicions, everybody might have suspicions but I mean it's a bit tough and it occurred to me when you did ask him the question, that it puts a witness in a very difficult position if he is asked that question under these circumstances. It might assist if the question is repeated outside of this sort of context and he might very well have some responses. The other point that I wanted to just raise with you, did the applicant actually volunteer information or did he only make a statement after he was approached by the police because there was a bit of uncertainty around this question, but the impression that I have and that's why I'm asking you, I might be mistaken, from the eventual situation is that he was first approached by the police and then he co-operated with them because there was an impression created I think by Mr Knopp's questioning that the applicant in fact initiated the contact with the police, almost like calling the police to the prison to now tell them a story that they didn't know about, whereas eventually it seems to me that what happened was that he was, the applicant was approached by the police and then he started giving those statements. I'm not sure whether you have any clearer recollection of that particular aspect.

MS VILAKAZI: Now that you have hinted on it, Mr Chairman, my recollection is that yes, indeed, from the applicant's version itself, he did indicate that he was approached by the police and then he volunteered the information.

I was still on the aspect of the question that I asked to Mr Twana. I accept the view that it might have been difficult for him to just volunteer information given the nature of the context in which he was asked, or the circumstances in which the question was asked, but the fact of the matter is he stands implicated and I submit that it would be in his interests to clear his name, particularly in view of the position that he holds in the society.

MR LAX: Did he not offer or allude to a possible cause, which was to do with the building and the houses and the development and the conflict around that, but he couldn't take it any more than that. That was the only thing that he could think of that might have been some basis for that.

So it's not fair to say he didn't give any reasons bearing in mind the problems raised by the Chair. He still speculated, well that's the only thing he could possibly think of.

MS VILAKAZI: The impression that I gained, it might be an incorrect impression, but the impression that I gained from the response of Mr Twana, he said something like: "The applicant knows who gave him instructions, let him talk" and the inference that I drew from that is that you know, he sounded so confident that there is somebody else that could have. Perhaps it's a wrong inference to draw but I have reason to believe that Mr Twana has a slight idea as to who might have been instrumental in this whole matter.

CHAIRPERSON: ...(indistinct) your clients might even be tempted to pursue that line with him outside of this context. They might get some information. I mean to put your head on a block to do it under oath here and possibly defame people and to open yourself up to consequences might be a bit of a hard call on him, but he's still there, I mean he hasn't disappeared, he's still around. I don't know if your clients have ever done it before, they might want to do it now. Who knows? In any case that's just by the way.

MS VILAKAZI: Okay, but I would really take that point up with the family.

Alright. Now the three implicated persons have highlighted the fact that Rev Namane was not a threat to anyone within the political structures and although Rev Namane was a member of the PAC, he was not an active member, he was not in the leadership of the PAC and it appears from the versions of the three implicated persons that his membership of the PAC was not even known. Mr Tliane himself has said that if he was a member he didn't know that he was a member, so it rules out the possibility that perhaps his death could be linked to the feeling that might have existed between the ANC and the PAC. What has come out strongly is the fact that Rev Namane was an active member in the Civic arrangement within the community and that raises the possibility that his death might be linked to the Civic movement, the intentions that Mr Tliane has indicated that existed within the Civic movement and the fact that there were some splits within the Civic movement. Now the point that I want to put across is that there are ever so many possibilities as to why Rev Namane was killed and who instructed him or who might have instructed the applicant to kill. The fact of the matter is that for as long as there is that question mark, the question still remains as to whether or not there has been full disclosure and I think the Panel has also indicated that the lack of clarity in that manner is likely to affect the question as to whether or not there has been full disclosure.

CHAIRPERSON: And also under all those circumstances, has there been a political objective established before us for the death of Rev Namane under those circumstances? Is there indeed a political objective which has been established on what has been placed before us in respect of his death? That's the other requirement.

MS VILAKAZI: The only political connotation that exists, I submit, is the fact that the people who are said to have given instructions are members of the MK but as to the motive or the objective, the political objective to be achieved by the killing of Rev Namane, that has not been proved.

CHAIRPERSON: Yes, I mean the implicated dispute the evidence implicating them and they go a step further. They say but there is absolutely no reason why Rev Namane should be killed from a political perspective.

MS VILAKAZI: Of course that is the position, but perhaps if one could view it from the point of view of the applicant, it could be that he was made to believe that there was a political objective, whether it existed or not is something else.

CHAIRPERSON: Yes. I take your submission.

MS VILAKAZI: I think in conclusion I would make a submission to the Committee that the evidence put before it with regard to the death of Rev Namane has not been sufficient enough to answer the questions as to why he had to be killed and who gave instructions that he should be killed. The tensions that have been referred to time and again may have played a role and I underline the word "may", may have played a role in the killing of Rev Namane and I think it would be in the interests of the community that that aspect should be cleared. It's not only in the interest of the Namane family that the possible link between, of the tensions within the Civic movement could be the reason behind the death of Rev Namane but the community has to be assured that the members of the community are not likely to be sacrificed in the quest for leadership within the Civic movement.

The question still remains who gave instructions as to the killing of Rev Namane and why were those instructions issued and I would submit that the conspiracy that Mr Tliane referred to more than once is a possibility that needs to be explored as to what the conspiracy involves and who is involved and for that reason I would submit that whether or not amnesty is granted to the applicant, a thorough investigation still needs to be conducted.

I submit that with the question still hanging in the air, it would be a travesty of justice for amnesty to be granted despite the fact that there are still questions to be answered but on the other hand I would also submit that it will also be a travesty of justice that the applicant be the only one who pays the price whereas there is that apparent possibility that there are certain other people who are involved.

In the absence of questions of the Panel, I would conclude in that fashion.

CHAIRPERSON: Yes, yes we note your concluding remarks as well and those might very well be questions that have to be dealt with beyond the framework of the work of this Committee but can I just ask you pertinently what are your submissions, has there been a full disclosure in this matter and secondly has a political objective been established in respect of the death of Rev Namane? Just a crisp answer to those questions. You might very well have answered them in your submissions, but just to conclude.

MS VILAKAZI: Well in short, the two requirements have not been met. The political objective has not been proved. There hasn't been full disclosure because there's still that question as to who instructed him to kill.

CHAIRPERSON: Yes, thank you Ms Vilakazi. Ms Mtanga, do you have any submissions?

MS MTANGA IN ARGUMENT: The issues I wanted to canvass in my submissions have been touched on by the lawyer for the applicant. I am not opposing this application and my basic position is that the applicant has disclosed information within his knowledge. As regards to the political objective, I would say he has also disclosed what he was told. If the Committee is to believe that he was acting upon instructions of some other people to carry out these two offences, he has disclosed information in as far as why this would have been furthering the political objectives of his organisation.

CHAIRPERSON: Now if it is found that the persons that, on his version, gave the orders did not do so, would there have been a full disclosure or not? In other words, the point that was raised by my colleague earlier whether the identity of, under these circumstances, the identity of those who gave the orders, is that a relevant fact that has to be disclosed?

MS MTANGA: Chairperson in the event that the Committee finds that he was not acting upon instructions of any person, I would say there definitely has not been full disclosure because the applicant on his own could not own up or account to what activities were the two victims involved in which would have made them legitimate targets for his organisation and therefore he would have grounds to claim that his actions were actions that were furthering the political objectives of his organisation.

CHAIRPERSON: Thank you. Mr Kopp, have you got any further issues that you want to respond to?

MR KNOPP: Just briefly, three issues.

MR KNOPP IN REPLY: Concerning Songo, the applicant also had not personal or financial motive for instance to get at him. The only connection there was that Songo was a former school teacher who taught him Mathematics at school. There were no problems between the two of them. The applicant then goes into exile, he doesn't see him for a large number of years. He comes back and he'd already broken contact with this person. There was really no connection between the two of them by the time the applicant came back. In fact the applicant's evidence is that he respected this person as a teacher so likewise with Rev Namane, the motivation for the act could not have been otherwise than political with regard to Songo. This was also touched on by the High Court. The High Court said that the applicant was in a dilemma. On the one hand he had these instructions, on the other hand he respected Songo as a school teacher. That's the one aspect.

The other aspect is although my learned colleague, Adv Vilakazi ...(indistinct) on behalf of the one victim and the family of the deceased Namane, she does not act on behalf of the other victim Songo. Songo is still alive, he did testify in the High Court trial but for reasons better known to himself, he has not attended this Tribunal Hearing. However, it's my submission that Songo and the applicant have made peace and there has been reconciliation and in this connection I would refer the Panel to page 49 of the bundle, that's the sentencing part of the Judgment, from line 10 onwards. I quote:

I confirm that.

CHAIRPERSON: Yes, he has also joined the ANC.

MR KNOPP: Yes, so in the High Court trial in fact he was called as a defence witness in regard to sentence.

Then just briefly with regard to how the applicant came to make his confessions, whether it was voluntary or whether the police came there and extracted it from him, my instructions are that the applicant in fact at first approached the Ministry of I think it was Public Safety and Security. I think there were two Ministries, one for police and one for safety and security, but the applicant first approached the Ministry and some officials were sent to see the applicant in Leeukop but that wasn't taken any further. He never heard from them again and after that delegation then the police came to him and he told the police: "I want to make the confession." In this connection I refer the Panel, there is an illusion to this firstly in the document that I'm going to hand up to the Panel presently, that's the first one on page 2, paragraph 12 (i), he's asked:

And his answer is:

That's the one allusion to that. The other is also in the second confession which is already part of the bundle before the Tribunal, page 2, paragraph 12(i):

Answer:

So that is what the applicant says happened. He first approached the ministerial officials, when they never pursued the matter then the police came to attend to the confession. That is all.

CHAIRPERSON: Yes, thank you Mr Knopp. That concludes this matter. The Panel will consider the applicant and will notify the parties as soon as a decision is available in this matter. We will, under the circumstances, reserve the Panel's decision on the application. We would in conclusion express our gratitude to Mr Knopp and Ms Vilakazi and Ms Mtanga for their assistance in this matter.

MR KNOPP: Thank you Mr Chairman.

CHAIRPERSON: And we excuse you Mr Knopp.

MR KNOPP: Thank you Mr Chairman.

CHAIRPERSON: Yes. We will take the short adjournment at this stage. We will adjourn for 15 minutes and reconvene and deal with the remaining matters on the roll. We're adjourned.

ON RESUMPTION:

CHAIRPERSON: The Panel is constituted as would be apparent from the record. On behalf of the applicant, Ms van der Westhuizen, do you just want to put yourself on record?

MS VAN DER WESTHUIZEN: Anina van der Westhuizen, appearing on behalf of the applicant.

CHAIRPERSON: Thank you. And for the leader of evidence?

MS MTANGA: Lulama Mtanga, the Evidence Leader. I will be assisting the families in this matter.

CHAIRPERSON: Thank you Ms Mtanga.

MS MTANGA: Chairperson, can I further place on record the names of the victims who have attended because we have encountered problems about other victims. The situation is that Mr Ndebele passed away.

CHAIRPERSON: Sorry, who's that? Who passed away?

MS MTANGA: Jerry Ndebele. He died in 1994 then the cause of death is unrelated to the incident here but he was shot at by unknown people. An advertisement was then placed in the Sowetan in October to try and locate his next of kin being the parents. That did not succeed because information was received that they had moved to KwaZulu and then in November another advertisement was place on ....(indistinct) trying to trace his parents. It was not known then that he was married and we've learned from the victims who have attended here today, Pendile Kabela that he was married to Pendile's sister and his wife is Happy Kabela. Because of this lack of knowledge Happy Kabela was not notified and she is not here today. The second victim who is in attendance is Nohlanhla Kabela who is the daughter of Kendile Kabela. They're both here, the mother and the daughter, they were shot at in the incident. The parents of Jabu Mbatha we were unable to locate. The same procedure was followed. An advertisement was place in the Sowetan and then they could not be located and information was obtained that they had moved to KwaZulu Natal, but the Kabela family could not confirm where they had moved to. Another advertisement was placed in the paper to locate them, that is the ...(indistinct). They have not contacted the TRC, so they have not attended the hearing. That is all I wish to place on record, Chairperson.

MR SIBANYONI: May I just ask one question? In view of the fact that most of our people are not readers of newspapers and a request was made to investigators that also national radio stations and community radio stations broadcasting in African languages should be contacted to assist. Has that been done?

MS MTANGA: Chairperson, I carried over this matter. I was briefed about it and at the time of the briefing it was not indicated to me whether the victims were missing or not and according to the instructions I have here, no advertisement or no notice was given to the radio stations, only the newspapers were informed.

MR LAX: Do you have the details of the parents of Jabu Mbatha? Do you at least know their names?

MS MTANGA: Their names were not known at the time the advertisement was place, but I can ascertain that from the victims who are here because they do know the family.

MR LAX: Okay.

CHAIRPERSON: Happy Kabela, that you say is the wife, you only found out subsequently that she was married to Jerry Ndebele.

MS MTANGA: Chairperson, I've just gathered that information from one of the victims now. We were not aware. Even the office is still not aware that he was married and also that I had asked the family why did she not attend the hearing and I was advised that her employer refused to allow her to come here because she did not have any proof of notice being served on her.

CHAIRPERSON: There's no indication that she is in a position to shed any light on the merits of this application?

MS MTANGA: Chairperson, I've spoken to her on the phone and I asked her to write a statement about what she knows and then we agreed that I'd try and phone her over lunchtime and see if she'll manage to fax it because she'll try and - she said the only fax she can make use of that she has access to is a bit far from her work so she'll endeavour to have the statement faxed to me.

CHAIRPERSON: There is no indication whether she's got any ...(intervention)

MS MTANGA: Information?

CHAIRPERSON: Knowledge about the merits of what happened here?

MS MTANGA: When I spoke to her Chairperson, she works in an environment where she is rendering service to clients, to customers, she said she could not speak but she said she wanted, there is something she wanted to elaborate on, so I said whatever she wants to say she must just put down in writing and I told her what exactly would be, around the membership of her husband and what she knows was the cause of the attack in her knowledge. She has agreed to do that.

CHAIRPERSON: Yes. Yes, very well and you'll follow that up, you say, over lunchtime?

MS MTANGA: That is so, Chairperson.

CHAIRPERSON: Yes. Ms van der Westhuizen do you want your client to be sworn in or is there anything else that you want to put on record?

MS VAN DER WESTHUIZEN: Nothing, Honourable Chairperson.

CHAIRPERSON: Yes.

POKOMANE ALEX NDINISANE: (sworn states)

CHAIRPERSON: Ms van der Westhuizen.

MS VAN DER WESTHUIZEN: Thank you Honourable Chairperson.

EXAMINATION BY MS VAN DER WESTHUIZEN: Mr Ndinisane, is it correct that you applied for amnesty for all the events that took place on the 16th of August 1993 at Zonkizizwe and more particularly the squatters hut at 1041?

MR NDINISANE: That is correct.

MS VAN DER WESTHUIZEN: In your court trial, you were not convicted of attempted murder on Jerry Ndebele, is that correct?

MR NDINISANE: That's correct.

MS VAN DER WESTHUIZEN: Is it also correct that you want to add this and also apply for amnesty for attempted murder on Jerry Ndebele?

MR NDINISANE: That is correct.

MS VAN DER WESTHUIZEN: Now, can you just briefly tell us about your political background when you lived in Thokoza? Just very briefly.

MR NDINISANE:

MS VAN DER WESTHUIZEN: Just to interrupt you there, the Mr Ndebele that you are referring to, would that be Mr Jerry Ndebele?

MR NDINISANE: That is correct.

MS VAN DER WESTHUIZEN: Did you have any position at that stage in Zonkizizwe within the IFP?

MR NDINISANE: Please repeat that.

MS VAN DER WESTHUIZEN: You yourself, did you have any position, for instance Secretary etc, within the IFP in Zonkizizwe?

MR NDINISANE: Yes.

MS VAN DER WESTHUIZEN: What is that?

MR NDINISANE: I was the Youth Leader.

MS VAN DER WESTHUIZEN: You can continue to describe the dispute that erupted with Mr Ndebele.

MR NDINISANE:

MS VAN DER WESTHUIZEN: Before you continue with what actually happened on that day, just to clarify it to the Honourable Committee, you mentioned, you actually testified very quickly here but what, did you believe that Mr Jerry Ndebele now joined the ANC, what was your thoughts on that and why did you think, if so, why did you think he was now an ANC supporter?

MR NDINISANE: I had seen him in the company of Mr Prince who was a leader in the ANC at Phola Park.

MS VAN DER WESTHUIZEN: Where did you see him in the company of Prince?

MR NDINISANE: When I saw them they were on a road in Phola Park and I was in a taxi just passing past. It was not just the two of them, they were in the company of other people.

MS VAN DER WESTHUIZEN: Okay. You can continue. What happened on that specific day?

MR LAX: Sorry. If I may interpose. When did you see this happen, this meeting between Prince and Ndebele? When was that, this incident where you saw them?

MR NDINISANE: I do not remember the date, because a long time has elapsed since.

MR LAX: Was it weeks before the incident, months before the incident, years before the incident, after it, whenever?

MR NDINISANE: It was less than a week before the incident.

MR LAX: Please continue. Sorry.

MS VAN DER WESTHUIZEN: You can continue by telling what happened on that day when the shooting took place.

MR NDINISANE:

MR LAX: Can you just slow down a little bit. I'm really struggling to keep up with your evidence and I'm sure the interpreter's struggling a bit and I'd hate us to lose some of the essence of what you're saying. So can you just go back a little bit please? I started losing you at the point where you were saying that you didn't see him coming out of the house and you were then looking through the doorway. Can you carry on from there please but just a little bit more slowly?

MR NDINISANE:

MS VAN DER WESTHUIZEN: Before you continue, this firearm that you used, is it correct that that was an AK47 rifle?

MR NDINISANE: That is correct.

MS VAN DER WESTHUIZEN: Now just to take you back a little bit. You say that you fired to scare off little children that you saw in the vicinity, how many shots did you fire? Was it one?

MR NDINISANE: Just once.

MS VAN DER WESTHUIZEN: And from the trial I'm sure you learned that there were certain women coming out of the house that you actually injured and who, through your bullets, were hit by the bullets that you fired. Did you actually see these women coming out of the house?

MR NDINISANE: No, I did not see them because it all happened quickly and I was just firing wildly. Had I seen them, I would not have continued firing because my intention was not to kill or shoot them.

MS VAN DER WESTHUIZEN: Therefore you didn't see any of them fall down or run away?

MR NDINISANE: No, I did not see any.

MS VAN DER WESTHUIZEN: Now can you explain to the Committee, what was your political motive for killing Mr Jerry Ndebele, or attempting to kill Mr Ndebele? What did you think were you achieving for the IFP?

MR NDINISANE: I would not particularly address myself to the IFP but the community would benefit in the sense that the attacks on the community would be ceased and the community would be free of those attacks.

MS VAN DER WESTHUIZEN: You testified that you heard shots being fired at you, could you see where those shots were coming from and who was firing them?

MR NDINISANE: I do not know, I did not see where those shots were coming from. That is why I became very scared and started firing wildly, because I did not know what was happening at that time.

MS VAN DER WESTHUIZEN: Would you agree with me that on that day when you set out to go to this house, you were going there to kill Mr Jerry Ndebele?

MR NDINISANE: That is correct.

MS VAN DER WESTHUIZEN: So even if these shots weren't fired, you would have still tried to find him and kill him?

MR NDINISANE: Yes, I would have done so because my intention was to shoot him.

MS VAN DER WESTHUIZEN: Am I right if I put it to you that this dispute that we're talking about first happened between, or it was first a dispute between IFP and IFP and it later turned into what you believe IFP/ANC?

CHAIRPERSON: Which dispute is that?

MS VAN DER WESTHUIZEN: This is basically the dispute started off by Mr Ndebele, his position, the question about money and him then breaking away and then later the applicant said he perceived him as now having joined the ANC.

CHAIRPERSON: No, but what has that got to do with the dispute?

MS VAN DER WESTHUIZEN: It's just what sparked off this whole incident.

CHAIRPERSON: Yes, no, no, I'm trying to understand what the perceived company of Mr Ndebele had to do with the dispute. I believe that he was seen, according to your client, he was seen in the street with a number of people including a certain Mr Prince.

MS VAN DER WESTHUIZEN: Who was from the ANC.

CHAIRPERSON: Yes, now have you laid any basis for linking that to this dispute about the money?

MS VAN DER WESTHUIZEN: No, it's got actually nothing to do with the dispute about the money. It actually, the dispute about the money and the firearms actually led to Mr Ndebele eventually leaving the IFP according to this witness.

CHAIRPERSON: Yes.

MS VAN DER WESTHUIZEN: And then after he saw him in the company of the ANC representative or leader from Phola Park, a certain Mr Prince, I don't know if it's a name or a surname, and after reports about, after they captured certain people who gave them reports as well as where the instructions came from to attack IFP members, or some of their members, then he started believe it, it then in his mind became ANC.

CHAIRPERSON: No, I didn't know about that. Mr Ndinisane, these attacks that were launched on the members of the community where you were living, in your view, who was responsible for those attacks?

MR NDINISANE: Please repeat.

CHAIRPERSON: Were there attacks on the people who were living with you?

MR NDINISANE: Yes.

CHAIRPERSON: In your view, who was responsible for those attacks?

MR NDINISANE: As I've explained before, Mr Ndebele authorised those people to attack the community and the one person that we captured explained everything to us with regards to those attacks. He explained that they were responsible for carrying out those attacks on the orders of Mr Ndebele.

CHAIRPERSON: So was your view that Mr Ndebele was responsible for these attacks on the people that were living with you?

MR NDINISANE: I will say so because if I for instance send people to attack, I am responsible for those attacks.

CHAIRPERSON: So in your view it was Mr Ndebele that was behind these attacks? He ordered these people, these attackers to come and attack the people that were living with you?

MR NDINISANE: That is correct.

CHAIRPERSON: And is that why you went to attack him again?

MR NDINISANE: That is correct.

CHAIRPERSON: And if I understood you correctly, you said you don't want to speak about the IFP, you are speaking about the community and the objective of your attack was to benefit your community, to stop these attacks on your community. Did I hear you correctly?

MR NDINISANE: That is correct.

CHAIRPERSON: Now, in your view, apart from Mr Ndebele, was there any organisation that was behind these attacks on the people that were living with you?

MR NDINISANE: Yes.

CHAIRPERSON: Which organisation was that?

MR NDINISANE: The ANC.

CHAIRPERSON: The ANC. Which ANC is that, which - was it an ANC branch, was it, can you give us some more details?

MR NDINISANE: I'm referring to the ANC people who had been driven out of the area. They went and built shacks in the neighbourhood, in the neighbouring area and they would come in the evenings to carry out attacks. For instance the eNugeni place was attacked on one night. They were shot at and killed and they were all women and children. We tried to follow these people but we were unsuccessful because they fled into that very same area that the people who had fled Zonkizizwe resided.

CHAIRPERSON: So there was also a fight between the ANC and the IFP where you were living? In fact I think you have described it as a war, would that be right?

MR NDINISANE: Yes, there was violence but not inside our area. These ANC members lived in an area just close by.

CHAIRPERSON: Now what I can't understand and you must help me, where did Mr Ndebele fit into all this because he was also behind attacks you say. Now where did he fit into this picture that you have sketched to us?

MR NDINISANE: Mr Ndebele's problem started after we had encountered problems with him with regards to the mismanagement of the funds that had been collected for money and thereafter he was also seen in the company of ANC people.

CHAIRPERSON: Now at that time, when there was this problem with the money, about the money, were you already involved in fights between the IFP and the ANC?

MR NDINISANE: Yes, it had already started.

CHAIRPERSON: And was that why you had to buy those weapons that you spoke about?

MR NDINISANE: That is correct.

CHAIRPERSON: Right. Now then you had a disagreement with Mr Ndebele and he left and he formed his own organisation which he called the IFP as well. Am I still right?

MR NDINISANE: That is correct.

CHAIRPERSON: And then you had a meeting with the IFP leadership where Mr Ndebele was also present and where he said, Mr Ndebele said well he'll now stop the trouble, he'll now start working together. Is that still right, or what?

MR NDINISANE: Yes, he did not promise just me but the whole community as such.

CHAIRPERSON: But then there were further attacks on your community, is it right?

MR NDINISANE: That's correct.

CHAIRPERSON: Now you say that according to the people that you captured, Mr Ndebele authorised these attacks, right?

MR NDINISANE: That's correct.

CHAIRPERSON: Now apart from those attacks, were there still other attacks involving the ANC and the IFP, or was it only these attacks which Mr Ndebele was instigating?

MR NDINISANE: There were other incidents because there had been many instances where our members had been shot at.

CHAIRPERSON: Now those other instances, was that the fight that involved the ANC and the IFP?

MR NDINISANE: That is correct.

CHAIRPERSON: Now, just explain if you can, did Mr Ndebele fight with the ANC or did he fight on his own against you, or what? What was the position?

MR NDINISANE: I would say these attacks that were carried out by Mr Ndebele, he did this in cahoots with the ANC because if that was not the case, he would not have continued and carried out attacks against members of the same organisation that he belonged to. That is why I say he was involved with the ANC although the people that he was close to, were not aware that he now collaborated with ANC leaders, but in my opinion, he now belonged to the other camp because he would not have proceeded and attacked his fellow members of the IFP particularly after we had had the discussion.

CHAIRPERSON: So in your view then, he was no longer IFP, he was no longer a break-away, he no longer led a break-away IFP group, he had now joined the ANC. Is that correct?

MR NDINISANE: That is correct. He was trying to make attempts not to alarm these followers, these IFP followers that he had not - he was trying that they do not catch up with him that he was now in cahoots with the ANC.

CHAIRPERSON: Yes, I'm not sure, but any case Ms van der Westhuizen.

MS VAN DER WESTHUIZEN: Thank you Honourable Chairperson. I notice it is already 1 o'clock. I might just have one or two questions to clear up certain aspects. Would it be - can we probably adjourn at this stage?

CHAIRPERSON: Yes.

MS VAN DER WESTHUIZEN: Thank you Honourable Chair.

CHAIRPERSON: We'll adjourn until 2 o'clock.

POKOMANE ALEX NDINISANE: (s.u.o.)

CHAIRPERSON: Yes, Ms van der Westhuizen, you said you had a few questions left.

EXAMINATION BY MS VAN DER WESTHUIZEN: (cont.)

Thank you Honourable Chairperson, there are actually no further questions left, but the applicant just said that he wanted to add something to his evidence.

CHAIRPERSON: Yes. Well Mr Ndinisane, you want to add something to what you've said, you can go ahead.

MR NDINISANE: I would like to say that with regards to what I did and to what happened to innocent people, I would like to apologise to them because it was not my intention to harm them. I would like to ask for forgiveness. It was due to the situation that I went out to carry out this act and it was directed only to the person intended, not the other innocent people.

MS VAN DER WESTHUIZEN: Chairperson, we do not intend calling any other witnesses, thank you.

CHAIRPERSON: Thank you Ms van der Westhuizen. Ms Mtanga, have you got any questions?

MS MTANGA: Yes, Chairperson. Chairperson, before I commence with my cross-examination, can I place on record, the mother of Jerry Ndebele has arrived. Her name is Zishiela Dlamini.

MR LAX: Just repeat that again, sorry.

MS MTANGA: Her name is Zishiela Dlamini. Her contact address is 5395 Zone 5, Zonkizizwe, that's where the brothers of Jerry Ndebele live. And I am still waiting for the statement of Happy Kabela, she said she sent someone to fax it for her, Chairperson.

CHAIRPERSON: Okay, we note that. You can go ahead.

CROSS-EXAMINATION BY MS MTANGA: Mr Ndinisane in your testimony today you testified that at the time the dispute arose within the IFP, Mr Ndebele was removed from his position, who removed him?

MR NDINISANE: He was removed by the Community.

MS MTANGA: What was the position of Mr Ndebele at that time?

MR NDINISANE: He was a community leader and he was also a leader within the IFP.

MS MTANGA: When you say he was a community leader, was there a structure in the community that he belonged to, that he also led, was there a structure?

MR NDINISANE: Please repeat the question.

MS MTANGA: Within the community, you said he was a leader of the IFP and the leader of the community, can you indicate whether there was a structure in both the IFP and the community that he belonged to? Was he just a leader on his own in the community and also a leader on his own in the IFP without any other people assisting him? Was there something like a committee or a structure within the community of the IFP to which he belonged as a leader? Can you explain that?

MR NDINISANE: No. At that time no person had been elected as a leader or had been assigned a portfolio. As I explained before he had not been elected into that office, but it was because of the assistance that he rendered to the community, but there were no structures at that time.

MS MTANGA: According to the family of Mr Ndebele, Mr Ndebele formed - he was a leader of a structure that dealt with the problems of the IFP at Zonkizizwe, so there was something like a committee which he belonged to, so there was a structure of leadership within the community or within the IFP that he was operating within. What do you say to this?

MR NDINISANE: As I explained before, I would agree with that assertion that he was a member of a certain committee, but that committee had not been voted into office, so no one had a distinct portfolio of the positions that they held within the community.

MS MTANGA: The family also goes on to say that he was known as the Mayor, do you know if Mr Ndebele was called the Mayor, or was he perceived as the Mayor by both the community and the IFP which was more or less one thing, because the community was an IFP stronghold area anyway?

MR NDINISANE: From the way things ran, I would say that yes, he was a leader, but I would not call him a Mayor. He was a leader within the community as well as within the IFP, but he was not a Mayor.

MS MTANGA: When he was removed from his position as a leader, who took over from him?

MR NDINISANE: It was Mr Samuel Ngobane. That was a person elected by the IFP.

MR MTANGA: According to the family of Mr Ndebele, Mr Ndebele was never removed by the IFP from his position, he was never removed. He stayed in that structure as a leader and what in fact took place, Mr Simon Ngobane formed his new structure which they referred to as committee, so at Zonkizizwe at the time, in 1993, there were two committees which were competing against each other, one led by Simon Ngobane and the other one led by Mr Ndebele. What do you say to this?

MR NDINISANE: That puzzles me because as I explained before, there were later two opposing groups after Mr Ndebele had broken away to form his own group and I was present as a Youth Leader and I witnessed and knew who did what and I knew what position a person held. With regard to that allegation that Mr Ngobane is the one who broke away to form his own group is not true. Maybe they were not aware of how things progressed when the other committee was elected.

MS MTANGA: The family further on says that the committee formed by Mr Ngobane came to be known as the new committee and Mr Ndebele's committee was known as the old committee and further that when they dealt with community issues, the people had a choice which committee they favoured, it was not an issue of whose side you are, you just decided which committee you would approach to deal with your problems but both committees were serving the IFP, or IFP followers in the area and were know to be IFP committees who were just competing with each other. What do you say to this?

MR NDINISANE: That is puzzling to me. After that split, the community was divided into two because as I explained before there were people who followed Mr Ndebele so it is true that some of the people would approach Mr Ndebele and others would approach Mr Ngobane but it was not for the reason that Mr Ndebele still held that position. It is just that his followers would contact him or would approach him, but those who were not his followers would not do so, but there was never a new or old committee. But after Mr Ndebele has split away to form his own group, that would be the new group, because we did not regard them as legitimate.

MS MTANGA: Mr Ndinisane I get your point. I further wish to put it to you, I won't lead evidence in this regard, but according to your evidence, Mr Ndebele was attacked on the 16th of August 1993 and according to your current councillor, when he arrived in the area that is after this incident had taken place, the two structures were still in existence and they were both known as IFP even though he doesn't know the source of the conflict but a long time the conflict was still in existence and I'm not going to lead this evidence, I'm just putting it to you for your comment, the two structures were still in existence and they were both known to be IFP structures and then later these were reconciled by Temba Xhosa, or attempts were made by, amongst other people, Temba Xhosa to bring together the two structures and that did take place. What do you say to this?

MR NDINISANE: I cannot comment on the reconciliation.

INTERPRETER: The applicant said he cannot comment on the reconciliation because he has been away in prison.

MS MTANGA: I am asking you Mr Ndinisane to comment about the fact that even after this incident in, your reason for attacking Mr Ndebele was that he had formed this new organisation and you had a suspicion that he was an ANC member. What I'm saying to you is that according to the councillor of Zonkizizwe, the person who is a current councillor of Zonkizizwe now, after the incident, he moved into Zonkizizwe after the incident where Mr Ndebele had been attacked and even at that time when he moved to Zonkizizwe there were these two structures and they were both known to be IFP structures even though they were not getting along or they were competing with each other but they were still viewed as IFP structures. I'm asking you to comment on that.

MR NDINISANE: I would agree with you that there were indeed two camps. As I mentioned earlier on, after Mr Ndebele had been removed from his position, he formed another group and in that way the community was divided into two. There were people who followed him and he called that group the IFP and that was the very same group that he led.

MS MTANGA: Mr Ndinisane what I'm trying to get at is that even at the time you attacked Mr Ndebele and even at the time after the attack on Mr Ndebele, he was viewed by some people, by the people in the area as IFP and your information that he was an ANC was not common knowledge in the area. What do you say to this? He may have been in conflict with another IFP group, but he remained IFP and his structure was well-known as an IFP structure, that's what I wanted you to comment on. I know you had removed him from his own structure, according to you, but that structure was still known as IFP. Do you dispute that it was known as IFP and viewed so by a majority of people in the area, but they were just in conflict with each other?

MR NDINISANE: It was known as an IFP group, but that was the perception amongst his own followers, that is the community that followed him, but we and the community that had removed him from office, did not regard him as a person who was still our ally or who was still a member of the IFP because of his activities. He did form that group and he did call it an IFP group, but it was no longer a legitimate group in the community because he had already been removed from the position that he held, by the community.

MS MTANGA: I wish to put it to you Mr Ndebele that there's a difference of opinion as to whether he was removed or another Committee was formed in a way to replace what his committee was doing but he was there operating in that old structure he was in. You can comment on that and then I'll move on, if you want to comment.

MR NDINISANE: It is difficult for me to comment because what I know is that we removed him from that position and he was no longer a leader in the community.

MS MTANGA: I understand your position.

CHAIRPERSON: Well, Mr Ndinisane, those people that supported Mr Ndebele, were they IFP members?

MR NDINISANE: Those people were the very same people who had been in the leadership with him in the IFP.

CHAIRPERSON: Yes, now the group, look you say that he formed his own group, now those people that were in his group, were they IFP members?

MR NDINISANE: Yes, they were IFP members.

CHAIRPERSON: Yes, Ms Mtanga.

MS MTANGA: Thank you Chairperson. You also testified that before you moved to Zonkizizwe you resided at Phola Park. When was this? In which year was it?

MR NDINISANE: ...(not translated)

MS MTANGA: When did you reside at Phola Park?

MR NDINISANE: It was 1988 and 1989 as well as 1990.

MS MTANGA: And when were you driven out of Phola Park by, your testimony was that there was, a dispute arose between Zulus and Xhosas and then Zulus were driven out of Phola Park and that's when you left Phola Park. When did you move out of, when were you driven out of Phola Park?

MR NDINISANE: The hostel and shacks were demolished in 1990.

MS MTANGA: At the time when you were driven out, were all Zulu speaking people who were alleged to be IFP, driven out or were there some people left behind?

MR NDINISANE: I am not in a position to clarify that because I do not know about the people who remained, so I'm not in a position to say who left and who remained. I can only comment on the people that I left with.

MS MTANGA: So you don't know if there were IFP or Zulu people were in conflict with the Xhosa at that time who were left in Phola Park, you don't know?

MR NDINISANE: No, I do not know.

MS MTANGA: In your testimony you testified that you saw Mr Ndebele in the company of Prince and this was on some street at Phola Park. What were you doing at Phola Park?

MR NDINISANE: As I explained earlier, I was in a taxi, travelling in a taxi and when we passed by there I saw him in the company of Mr Prince and others. He was there on the road.

MS MTANGA: Why did your taxi go past Phola Park?

MR NDINISANE: It was a road that was used from Thokoza to Zonkizizwe.

MS MTANGA: Were you the only person who saw Mr Ndebele with this person known as Prince?

MR NDINISANE: I was with Alfred Ngobese, the late Alfred Ngobese, when I saw him.

MS MTANGA: I will move on to the incident.

CHAIRPERSON: Sorry, just a minute Ms Mtanga. I don't understand this. Were these people walking in the street, Mr Ndebele and Mr Prince and I assume from what you said, the group of people?

MR NDINISANE: When I saw them they were standing.

CHAIRPERSON: In the street, the group of people?

MR NDINISANE: They were standing as if they were deep in discussion.

CHAIRPERSON: The taxi was just driving past?

MR NDINISANE: Yes, it was driving past.

CHAIRPERSON: Like these taxis normally drive, they just go past?

MR NDINISANE: It was driving past, but it had stopped to off-load some passengers, in fact the taxi stopped just a distance after we had passed them.

CHAIRPERSON: So you didn't know what they were doing then?

MR NDINISANE: Yes, I'm not in a position to say what they were doing. It had just shocked me to see him standing with an ANC leader, people we were in conflict with.

CHAIRPERSON: But you didn't know what they were doing, whether they were arguing or whether they were debating or whether they were talking about the weather, you can't say what they were doing there. Wouldn't that be right?

MR NDINISANE: I am not in a position to explain what was happening, but it did not look as if they'd been arguing because it is possible to tell if people are having a debate or an argument.

CHAIRPERSON: And is this the reason why you say that Mr Ndebele joined the ANC, or he was fighting on the side of the ANC against you?

MR NDINISANE: That was the second reason because even within the township some of our members had been killed because of him.

CHAIRPERSON: Yes. Ms Mtanga.

MR LAX: Just one question while we're on this if I may Chair, before it gets cold, so to speak.

CHAIRPERSON: Yes.

MR LAX: Why didn't you contact the IFP leaders and say to them: "Look man, I've seen this man with this well-known ANC leader. Why don't you call him in and discipline him for this and ask him what on earth's going on here?"

MR NDINISANE: I did contact the IFP leaders. I went to the Induna Mr Mbatha and informed him that I had seen him at such and such a place. He then promised to discuss it with other leaders, but I never got any feedback as to what had happened.

MR LAX: So they never did anything about it?

MR NDINISANE: I would say they didn't do anything about it because nothing happened about it thereafter. I never heard of anything.

MR LAX: Please continue Ms Mtanga.

MS MTANGA: Thank you Chairperson. Mr Ndinisane I put it to you that you are lying about having seen Mr Ndebele with this person on his premises. What do you say to this? You are conveniently fabricating evidence to give an impression that Mr Ndebele was a political enemy.

MR NDINISANE: What I have said is what I know and what I witnessed. I would not come here to seek for forgiveness for something that is not true. I am talking about something that I know and something that I witnessed.

MS MTANGA: My next question is, you indicated in your evidence that you didn't tell the Induna of Zonkizizwe about your intended attack on Mr Ndebele, did I understand you correctly when I say that? You did not inform him or get an approval from him.

MR NDINISANE: Yes, that is correct, I did not inform the Induna.

CHAIRPERSON: The other part of the question is, and is it correct that you didn't get his approval, or her approval, I'm not sure?

MR NDINISANE: Please repeat that.

CHAIRPERSON: The second part of Ms Mtanga's question was, you didn't get the approval of the Induna for the action that you took.

MR NDINISANE: That is correct.

CHAIRPERSON: Thank you.

MS MTANGA: Why did you not inform the Induna?

MR NDINISANE: As I mentioned before, I had already realised that we were being slaughtered. I could even be the next victim. We would report these matters to them, but they did not want to take any action about it, that is why I decided to take the matter into my own hands because I could see that they had no intentions of doing anything about it except for contacting the leadership of the IFP when we needed to discuss the matter with Mr Ndebele.

MS MTANGA: Mr Ndinisane if I recall what your evidence was in addition to what you've just indicated now, you also said that you didn't tell the Induna because you knew he would not approve of your actions. I'm not sure if I took my notes correctly, but that's what I have on my notes. You said you knew he wouldn't approve of your actions in fighting that Mr Ndebele.

MR NDINISANE: That is so because he had not approved of my decision even before, that is why I decided to take it into my own hands.

MS MTANGA: Chairperson, can I just correct, it wasn't even before, he said from the very beginning, that's my interpretation. The interpretation, it was not before, he said from the beginning.

CHAIRPERSON: You said that the proper interpretation ...(intervention)

MS MTANGA: The Zulu that he used was ...(ethnic) and then the interpretation said even before, but the appropriate one would be "from the very beginning".

CHAIRPERSON: From the very beginning?

MS MTANGA: Yes.

CHAIRPERSON: Thank you. Do you agree, does the interpreter agree?

INTERPRETER: Generally yes.

CHAIRPERSON: Alright. Generally we'll accept that.

MS MTANGA: Mr Ndinisane, when you went to attack Mr Ndebele, you've given evidence that you'd been following him and you followed him into his home. My question to you is, at the time you fired shots at the house, were you not concerned that there could have been people who had nothing to do with Mr Ndebele's actions, such as his wife, his children, or the family?

MR NDINISANE: That did not occur to me because I'd already fired a shot whilst I was outside, that is after I had seen the children playing there.

MS MTANGA: What was your attitude towards people who were in the same house as Mr Ndebele? What was your attitude about them getting injured or killed?

MR NDINISANE: Please repeat the question.

MS MTANGA: I'm asking you what was your attitude about the people who could have been in the house as there were indeed people in the house. What was your attitude at the time you were shooting or firing shots at the house? Did you care that they could get injured? What was your attitude towards them when you were firing shots? Did you care that they could get injured, or did you not care, or get killed by your shooting? Did you want them injured, what was your attitude towards them?

MR NDINISANE: No, I did not intend to injure or kill anyone else because my intention was to get Mr Ndebele. That is the reason why I fired a shot in the air, so that the children flee but when I heard gunfire, I thought that he was the person firing, because he had become a danger in the community, that is the reason why I started firing, but it was not my intention to kill anyone else inside. It did not occur to me that there might be somebody inside the house because when he went into the house, he opened the door that had been closed. I'm not even sure whether it was locked or not. Therefore I had not intended to injure or kill other people, just him.

MS MTANGA: Mr Ndinisane, you could not have thought that there were no people inside this house. You had followed Mr Ndebele and you had noticed children sitting around the fireplace outside, so you couldn't have thought that there were no people in the house if there was a fire on outside the very shack which you fired shots at.

MR NDINISANE: I do not understand that.

MS MTANGA: I am saying that I disagree with you when you say that you didn't think there were people inside. I am saying, you could not have thought there were no people outside when you had seen children sitting outside around a fireplace, around a fire that was on.

MR NDINISANE: It was difficult for me to have such thoughts, because everything happened very quickly, so you could not sit down and think about, are there people inside or not. My sole intention was to get this person and kill him, that was all.

MS MTANGA: Further to this point, Mr Ndinisane, one of the victims, Pumelele Sithole gave evidence in court that he had spotted you carrying a firearm and then when you noticed her, you pointed the firearm at her and fired a shot at her, which injured her. What do you say to this? You had seen her and you fired shots at her and she was a female and you, outside the shack and Ndebele was inside the shack. What do you say to this?

MR NDINISANE: I will say it is possible that she saw me, but I did not see her. She may have thought that I saw her but because of the situation that I had heard gunshots from elsewhere, I was very shocked and I did everything very quickly. I'll not dispute that she may have seen me, but I did not see her because had I seen her I would not have shot at her because she was not my target.

MS MTANGA: It was also noted by the court that you shot Pumelele at a distance of about 5 to 6 metres.

MR NDINISANE: As I said before, I did not see her. That is why I do not even know the distance that she was away from me. I didn't see her.

MS MTANGA: Another person Kendile Kabela, she's also a victim in this incident, she also saw you outside, these are people who heard the shots and ran towards the shack that you were firing shots at and when you saw her you fired shots at her and according to her, she's here to give evidence to that effect, you looked at her and you fired shots towards her direction, at her and she had used her arm to shield your shot. What do you say to this? And she was facing you and you were facing her.

MR NDINISANE: I would not dispute it, but I did not see her because after firing those shots I fled because as I said before, after hearing those shots, I was not sure who was firing. Was it Mr Ndebele or another person in the vicinity, so I did not see her as well. I will not dispute if she says so, but I did not see her.

MS MTANGA: Mr Ndinisane, I put it to you that you are lying when you say you never intended to kill other people who were living with Mr Ndebele. I put it to you that when you went to Mr Ndebele's house, you knew he could be with other people in that house and you fired shots in all directions of the house as this was evidenced before the court and further to that you fired shots at two females whom you had sufficient time to look at and see who they were and that you target was inside the shack at that time, so I put it to you that you didn't care who you were shooting, you were just there to shoot everyone, what do you say to this?

MR NDINISANE: That is not so, I did care because I knew very well who my target was. It is not true that I went out to kill any person I encountered because I knew very well who I had intended to kill. If my intention was to kill everyone, I would have shot at those children who were outside but since that was not my intention to kill innocent people, I fired the shots outside so that the children could flee. If my intention was to kill everyone and anyone, I would have shot at those children first. i fired that shot so that the children could flee so as not to injure innocent people.

MS MTANGA: Finally Mr Ndinisane, you testified that you learned from some people you had captured that Mr Ndebele was responsible for the attacks on your group. Do you recall that?

MR NDINISANE: Yes.

MS MTANGA: Why did you not take these people that you captured to the Induna?

MR NDINISANE: I did explain that we took them to the Induna's house but unfortunately he was not at home and we returned with them and on our way back we met the supporter of Mr Ndebele and after having discussed the issue with him, we set the people free.

MR LAX: May I just interpose here? Why didn't you take them to the police? You caught these people, they were busy with violent actions against you, they confessed to you that they'd been instructed by a certain person, why didn't you just take them to the police?

MR NDINISANE: At that time it was very difficult for us to take them to the police because the police were aligned to Mr Ndebele because in instances where something happened, it was our supporters who were generally arrested and imprisoned, so it was difficult for us to take them to the police because we could end up being arrested, particularly because our firearms were not licensed.

MS MTANGA: I put it to you Mr Ndinisane that this offence you are applying for could not have furthered the political objectives of the IFP because you had not received authority from the organisation to carry out this offence, that's number 1. What do you say to this?

MR NDINISANE: I would say it would have benefitted the IFP because were it not for my action, the IFP community would not have been free of these attacks because there had been many such attacks carried out by Mr Ndebele's people. I did this knowing well that the community would at least be free because this person was now a danger because of his activities against the community.

MS MTANGA: Mr Ndinisane, secondly, your attack on Mr Ndebele seems to be a one man action. You are the one who saw Mr Ndebele with this ANC person that you allege, the incident you allege you saw on the road at Phola Park. You are the very person who captured the people who told you that Mr Ndebele was responsible for the attacks and you are the very person who goes out and kills Mr Ndebele, admittedly against the approval of your organisation because you knew they wouldn't approve of it. How can you say this was furthering the political objective of your organisation when you knew they wouldn't approve?

MR NDINISANE: I am saying that what I did furthered the objectives of the community I resided, the IFP community of Zonkizizwe. This action helped the community in the sense that they were now free because they no longer lived in fear because Mr Ndebele had used these people to launch the attacks so that people would fear him and they would also turn to his group.

MS MTANGA: Finally, Mr Ndinisane, I put it to you that your actions at the most furthered the objectives of the one faction of the IFP that you belonged to and had nothing to do with the overall interest of the IFP. It was a faction fight within the IFP and you were furthering the interests of one faction. What do you say to this?

MR NDINISANE: I would not dispute that because the action helped the people who had been traumatised and been harassed by these actions and we, as the people who had been protecting that community.

MS MTANGA: I have no further questions.

CHAIRPERSON: Thank you, Ma'am. Has the Panel got any questions?

MR SIBANYONI: Yes, Mr Chairperson. Mr Ndinisane, on page 4 of the bundle, at the end of paragraph 9 sub-paragraph 4, which started on the previous page, but I'm referring to page 4 at the end of that paragraph which says:

It seems what prompted you to take action was the killing of your friends. What do you say about that?

MR NDINISANE: That is true but those friends were not just friends but they were friends within the IFP committee and I was close to them because of our being members of that Youth Committee. This worried me greatly and that was the motivation why I took my firearm and went to approach him and confront him directly.

MR SIBANYONI: Apart from seeing the deceased in the company of Prince as you allege, was there anything which he did which made you suspicious that he was connected to the ANC?

MR NDINISANE: Yes.

MR SIBANYONI: And what is it?

MR NDINISANE: That was his sending people to attack and kill IFP members whereas he also is in the same organisation.

MR SIBANYONI: Those people he sent, do you know to which organisation did they belong?

MR NDINISANE: No I did not have knowledge to that effect.

MR SIBANYONI: Who taught you to use an AK47? Who trained you?

MR NDINISANE: No person trained me but I observed other people, other members like Ngobese who used to use these firearms and I do not know whether they had been trained or not, that is how I have learned how to use it.

MR SIBANYONI: As you were shooting, was your AK47 on automatic or was it on manual?

MR NDINISANE: It was on automatic mode.

MR SIBANYONI: It seems on the day you took action, you were not acting in your capacity as an IFP member, but you took your own initiative. What do you say about that?

MR NDINISANE: I cannot really elaborate on that, but I carried out the action to free the community which had been suffering therefore all that I did, I did to protect the community as well as within the confines of the organisation.

MR SIBANYONI: But you said you kept it a secret to the organisation, to the Induna because he wouldn't have approved of it. Do you remember saying that?

MR NDINISANE: Yes, I did hide it for the reason that there had been many instances and when informed about these instances, they did not agree, they did not approve that we take action to correct a situation, that was the reason why I was forced to take the firearm and do it on my own. It was difficult for me to go to the Induna because he would have refused.

MR LAX: Just to be fair to the witness ...

MR SIBANYONI: I am through.

MR LAX: Just to be fair to the witness, he did say in his evidence in chief that he had intended after he had shot this man, to go and speak to the Induna. He did say that in his evidence in chief.

CHAIRPERSON: Any re-examination Ms van der Westhuizen?

MS VAN DER WESTHUIZEN: Thank you, none, Chairperson.

CHAIRPERSON: Is that the case for the applicant?

MS VAN DER WESTHUIZEN: Chairperson, if I can just ask for an opportunity just to take instructions from him specifically relating to a witness who might be able to assist us as far as the structures of the IFP in the area is concerned, nothing further than that.

CHAIRPERSON: Yes.

MS VAN DER WESTHUIZEN: Thank you. Chairperson it seems that there might be a person present. May I ask just for a very short adjournment of 5 minutes, just so that I can speak to him and see whether he feels that he can contribute in it?

CHAIRPERSON: Yes. We'll stand down for 5 minutes, but I don't know if there's any dispute about the structures of the IFP. There might not be any dispute. You might be well advised to speak to Ms Mtanga and hear if there's any dispute about the structures of the IFP. I don't think there's very much that turns on that. It doesn't seem to be in dispute.

MS VAN DER WESTHUIZEN: Chairperson except that the evidence under cross-examination, it was put to him that there was very much two structures, the old one which was led by Mr Ndebele and was basically still in place as it was and it's just on that aspect.

CHAIRPERSON: Yes. Your client seems to have agreed but he's just swopping the roles around. He says well Mr Ndebele's one would be the new one because he broke away from the establishment.

MS VAN DER WESTHUIZEN: If she's not going to take it much further, I'm gong to leave it at that and just conclude the evidence.

MS MTANGA: Chairperson, if I may add to that? The applicant also indicated that when, according to when Ndebele was removed, the other people were with him in the leadership so that could have been what was perceived as the structure. The leaders that were with him went with him.

CHAIRPERSON: Yes.

MS MTANGA: And he conceded that in his evidence.

CHAIRPERSON: Yes, it seems as if the applicant agrees that Mr Ngobane formed, led one and I think in his view it is the authentic IFP structure in that particular place and that Mr Ndebele was the break-away faction and in terms of labels it doesn't seem to be neither here nor there. He said when you questioned him, he said well if there was a new committee it would have been Mr Ndebele's one because he broke away.

MS VAN DER WESTHUIZEN: Honourable Chairperson, I'm going to not waste time then and leave it at that and that would be then the case for the applicant.

CHAIRPERSON: Very well, Ms van der Westhuizen. Yes Mr Ndinisane thank you very much. You're excused.

MR NDINISANE: Thank you.

CHAIRPERSON: Ms Mtanga you were referring to a witness.

MS MTANGA: Chairperson, I'm reconsidering my position as to whether I should call the witness. I will not call any further witness.

CHAIRPERSON: Yes. Ms van der Westhuizen, have you got any submissions on the merits of this application?

MS VAN DER WESTHUIZEN IN ARGUMENT: Thank you Honourable Chairperson. I'm going to be very short. I'm first

going to submit that the applicant complies with the formal requirements of the Act and then secondly that it is clear that from his evidence that he believed that he acted in furtherance of a political objective. His motive being that he wanted to kill this person whom he believed was now carrying on attacks on the IFP and whom he also saw in the presence of the ANC leader, a one Mr Prince, in Phola Park, who is actually a known, or was a known ANC leader in that area.

On his evidence as to whether he wanted to involve other people apart from Mr Jerry Ndebele, it is clear also as it appears from the small portion of the record of the trial that is attached to this bundle, that he indeed fired one shot. From the evidence it's clear that the two women then went outside or especially the mother went outside to call the child and was thereafter shot, or was hit by some of the bullets coming from the applicants gun. As he indeed stated, if he didn't really care about who he was going to kill there, he could have easily shot these children. It might very well be that he acted very negligently in running around shooting at this shack, but one should look at how he perceived the situation at that particular time. He also testified that because of the attacks by, or the attacks on the IFP in that area, he believed that Jerry was acting in cahoots with the ANC since, if he was not in cahoots with the ANC, he would not have actually attacked his own people.

And then I would further submit that he indeed made full disclosure of the facts and of the events as he saw it on that particular day and therefore beg the Honourable Committee to consider granting him amnesty.

As it pleases the Committee.

CHAIRPERSON: Thank you Ms van der Westhuizen. Ms Mtanga, any submissions?

MS MTANGA: Yes, Chairperson.

MS MTANGA IN ARGUMENT: Mr Chairperson it is my submission on behalf of the family that the applicant acted on his own without the approval of the IFP that he alleges to have been acting on behalf of. He acted without the authority or without any order from the IFP and he has testified that he knew the Induna whom he regarded as the person who could have been the authority would not have approved of his actions, but he went on without his approval and attacked Mr Ndebele.

It is further my submission on behalf of the family that the applicant cannot be granted amnesty because the victim, Mr Ndebele was not a political opponent of the applicant. he didn't belong to an organisation that was publicly known to be an opponent of the IFP. He was still a member at the time of this incident, but he belonged to a faction within the IFP that was in conflict with the applicant's group.

I further submit that the applicant cannot be considered for amnesty in respect of the attacks on the people who were inside the house and the persons who shot outside the house, those being Kendile Kabele and Pumelele Sithole, the death of Jabu Kabela, the reason being that in his actions, he cannot testify even if the Committee were to find that he was justified, there was a political justification in killing Mr Ndebele, there cannot be justification for killing these other people as their killing could not further the political objective of the IFP. They could not have been perceived by the applicant as political opponents of the IFP at that time.

I therefore request the Committee to refuse the applicant's amnesty application.

CHAIRPERSON: Thank you Ms Mtanga. Is there anything else that you wanted to add, Ms van der Westhuizen?

MS VAN DER WESTHUIZEN: Nothing Honourable Chairperson.

CHAIRPERSON: Yes, thank you very much. That concludes the formal proceedings. We will have to consider the matter and we will endeavour to come to a decision on the application as soon

as circumstances permit and in the circumstances we will then reserve the decision in the matter and express our thanks to Ms van der Westhuizen for your assistance and to Ms Mtanga for your assistance as well and we will excuse you if you don't have any further business here.

Ms Mtanga there is one matter that remains on the roll if I'm not mistaken.

MS MTANGA: Yes, Chairperson, that is the amnesty application of Nkosi.

CHAIRPERSON: Nkosi. Very well. We're not going to rise. We'll give you an opportunity to just rearrange things and then we will proceed to do the third application. So will you bring Mr Nkosi forward and will the legal representatives also just take up their places?

MS MTANGA: Chairperson can I just get two seconds to speak to the family?

CHAIRPERSON: The Panel is constituted as has been indicated on the record. For the applicant we see it's Ms Makhubele.

MS MAKHUBELE: That's correct, Mr Chairman.

CHAIRPERSON: Very well and for the victims it's another well-known face, Ms Vilakazi.

MS VILAKAZI: That's correct.

CHAIRPERSON: Which victims are you representing?

MS VILAKAZI: The family of the deceased, Christopher Mabika.

CHAIRPERSON: Thank you. And then the Leader of Evidence is Ms Mtanga. Yes Miss Makhubele, is there anything else you want to add or do you want your client to take the oath?

MS MAKHUBELE: My client will take the oath Mr Chairman.

KESHLA TIMOTHY NKOSI: (sworn states)

CHAIRPERSON: Yes Ms Makhubele.

MS MAKHUBELE: Thank you Mr Chairman.

EXAMINATION BY MS MAKHUBELE: Mr Nkosi, you are the applicant in this matter, is this correct?

MR NKOSI: That's correct.

MS MAKHUBELE: You are 33 years old, also correct?

MR NKOSI: That's correct.

MS MAKHUBELE: On the 16th day of October 1991 at Lydenburg, you were convicted of the murder of one Christopher Mabika and sentenced to 18 years imprisonment, is this also correct?

MR NKOSI: That is correct.

MS MAKHUBELE: Where do you reside?

MR NKOSI: My home is in Tlaza J, eLukwatini.

MS MAKHUBELE: Whereabouts, which province?

MR NKOSI: Mpumalanga.

MS MAKHUBELE: This used to fall under the former KwaNdebele Government?

MR NKOSI: It was Kangwane.

MS MAKHUBELE: Kangwane, sorry. It's in respect of this conviction that you are here today to apply for amnesty.

MR NKOSI: That is correct.

MS MAKHUBELE: Can you briefly tell the Commission the events that took place on the day of the killing of Christopher Mabika?

MR NKOSI:

MS MAKHUBELE: Mr Nkosi can you just go slowly so that we can have your evidence? Don't rush. Take your time, explain.

MR NKOSI: Okay.

INTERPRETER: The speaker's mike is not on.

MS MAKHUBELE: I'm sorry. You say you also chased, pursued him, caught up with him. He was hit. What role did you play there?

MR NKOSI: Actually because of the pain that I felt, I kicked him and also threw stones at him.

MR MAKHUBELE: Let's now go to this Christopher Mabika. Did you know him?

MR NKOSI: Sorry?

MS MAKHUBELE: Did you know Christopher Mabika?

MR NKOSI: Yes, I would see him around.

MS MAKHUBELE: Do you know what kind of a job he did?

MR NKOSI: I think he was a policeman.

MS MAKHUBELE: Do you think or do you know that he was a policeman?

MR NKOSI: I know it.

MS MAKHUBELE: Other than the events that you described that happened on the day that he was killed, do you know anything about him, whether he belonged to any political organisation?

MR NKOSI: I knew him to be a policeman, but I was a comrade in the community, responsible for community affairs.

MS MAKHUBELE: Did your brother survive the shooting?

MR NKOSI: He was shot twice in the head but he survived, on the forehead, but he did survive.

MS MAKHUBELE: Mr Nkosi in your application form the original, the translation, it is stated that paragraph 9 (a)(iv) that the person that was shot the day Christopher was killed died and now you have just described that it was your brother and he did survive the shooting. What can you tell us about this?

MR NKOSI: I did not hear you well. Please repeat that question.

MS MAKHUBELE: Or let me put it this way. During consultation it emerged that paragraph 9 (a) of your application form, that translation is not the same as the original one where you wrote it out yourself. In the translation it says that the person that was shot was killed. Do you remember this?

MR NKOSI: Yes, I do remember, but my brother did not die. He was shot but he survived.

CHAIRPERSON: Did you write out the original application? Did you write it?

MR NKOSI: Yes I did.

CHAIRPERSON: In what language?

MR NKOSI: In Seswati because I know the language.

CHAIRPERSON: So are you saying that this translation that we have is not right, not correct, there's an error in the translation that we have here?

MR NKOSI: I think the translator made a mistake.

CHAIRPERSON: Have you got that original before you there, the original application, the one that's in Seswati?

MR MAKHUBELE: Mr Chairman, I can show it to you.

CHAIRPERSON: Please do that Ms Makhubele.

MS MAKHUBELE: Can I ask him to read it?

CHAIRPERSON: Yes, let him rather. Ms Makhubele, just let him read those sections that are not right, where there's an error. He needn't read the whole thing.

MR LAX: Just while we're at it, are there any other sections that are incorrect?

MS MAKHUBELE: I will, Mr Chairman. With your permission, Mr Chairman, may the applicant read paragraph 9 (a) (iv)?

MS MTANGA: Chairperson, can I just make a request that, there's a reference to murder again on paragraph 9 (a) (i), so I would say he must read the whole of page 3. Yes.

CHAIRPERSON: I think so. Let him read 9(a)(i) first Ms Makhubele.

MR LAX: It's all on the same page, from the top of page 3.

CHAIRPERSON: Let him first read that and then (iv).

NR NKOSI:

MR LAX: One second, let us just write that down quickly.

INTERPRETER: Yes, he's starting to read from paragraph 4.

MR NKOSI:

CHAIRPERSON: Just a minute.

MR MAKHUBELE: Thank you Mr Chairman. May I?

CHAIRPERSON: Yes, alright.

MR MAKHUBELE: May I confirm that in the translation it appears like this person who was shot by the deceased died, whereas in the original paragraph it doesn't say so.

CHAIRPERSON: Yes. The person didn't die and it was the applicant's brother and the policeman shot at this person, not at the group as it says here in the translation with us. Alright, we've noted that.

MS MAKHUBELE: Thank you Mr Chairman.

MR SIBANYONI: Maybe can we just also say the translator who translated this paragraph 4, was misled by the applicant using the word murderer on paragraph (a) (i), to say the act is applying, for which he applies for amnesty, was the killing of this man on suspicion of being a murderer. Immediately he used the word murdered, the person then assumed that the policeman has killed someone.

MS MAKHUBELE: Thank you Mr Sibanyoni. That will appear later why he used this word murderer but for now I just wanted to clarify that. Thank you Mr Chairman.

At the time of the killing of Mr Mabika, or during that year 1990, were you a member of a political organisation?

MR NKOSI: I was a comrade belonging to the Inyanza National Movement.

MS MAKHUBELE: In terms of national politics, do you know or can you tell us which organisation that Inyanza National Movement is aligned to?

MR NKOSI: This organisation existed in the Mpumalanga Province. It was dissolved and became part of the ANC. Comrade Zitha who led the Inyanza National Movement led that organisation into the ANC.

MS MAKHUBELE: Were you a card carrying member of that organisation?

MR NKOSI: Yes, I was.

MS MAKHUBELE: In relation to the political situation of the past, what was this oganisation faced with in your community? That is, what was the political climate at the time in your community?

MR NKOSI: The situation was not a very bad because the Inyanza organisation is the one that fought the then government against oppression.

MS MAKHUBELE: What was happening? What oppression was happening in your community that you were fighting against? You said you were a comrade, what activities were you involved in?

MR NKOSI: Firstly we resided in rural areas where there was no water, no electricity. We were struggling so that the government could provide us with such resources as water and so forth.

MS MAKHUBELE: How did the deceased fit in that political scenario you have just described?

MR NKOSI: Well the deceased as an employee of the then government, I do not think he would have approved of us doing activities like toyi-toyi and so forth.

MS MAKHUBELE: Did he actually prevent you from demonstrations, actually, the deceased?

MR NKOSI: Firstly, the police in general would assault you or even kill you if they saw you engaged in such. I would not single him out, but I would refer to police generally.

MS MAKHUBELE: Yes, Mr Nkosi, but let's assist the Commission. Did the deceased in that situation do anything which you would say was against your organisation?

MR NKOSI: ...(not translated)

MS MAKHUBELE: You have already testified that you were in a rural community, you demonstrate against basic living conditions and that the police in general, they were against your demonstrations, they would assault you, so I want you to fit the deceased in that scenario as a policeman. Is there any specific action which he did, which you would say was against what you as an organisation were fighting for? Is there anything that you can tell the Commission that Christopher Mabika did this and this on this day, did this and that and that. That's what I want you to tell the Commission.

MR NKOSI: Yes, there is something. Well I knew him. He used to be a very aggressive person and he was generally known to be a person who assaults people.

MS MAKHUBELE: Did he do anything specifically that you can point a finger at?

MR NKOSI: At one point he shot at one person at the rank.

MS MAKHUBELE: Who is that person that he shot at?

MR NKOSI: Mandla.

MS MAKHUBELE: Did this Mandla live?

MR NKOSI: I never saw him alive again.

MS MAKHUBELE: Did he die, is that what you are saying? That Christopher shot Mandla at the taxi rank and Mandla died?

MR NKOSI: Yes, I think so.

MR LAX: Sorry, do you know the circumstances around which he was shot?

MR NKOSI: Please repeat.

MR LAX: Do you know the circumstances around why he was shot?

MR NKOSI: I think it was because Mandla was a very active comrade.

MR LAX: But you don't have any personal knowledge of what it was all about?

MR NKOSI: That is the reason because we as comrades were not popular.

MS MAKHUBELE: What happened after this incident in which you say Mandla was shot? What was the feeling of the comrades and the community in general? Did anything happen?

MR NKOSI: We were very angry about it because we wanted him to be arrested.

MS MAKHUBELE: Was he arrested?

MR NKOSI: No.

MS MAKHUBELE: What did you do as an organisation and as comrades when Christopher was not arrested for Mandla's killing?

MR NKOSI: We marched to the Magistrates office to find out what was happening to the case.

MS MAKHUBELE: What was the result?

MR NKOSI: We never received any response up to this day.

MS MAKHUBELE: Was there any point where the organisation had a discussion about the actions of Christopher, where anything would have been said about him?

MR NKOSI: The comrades would normally meet, wanting to find out what happened to the issue or the case.

MS MAKHUBELE: What happened in that meeting?

MR NKOSI: We decided to confront him at his house so that we could revenge ourselves.

MS MAKHUBELE: How?

MR NKOSI: In those times comrades would normally assault you, take you and burn you.

MR MAKHUBELE: Mr Nkosi, can we be specific. Don't generalise. I want you to be specific about the Christopher issue. What in the meeting of the comrades was said about the incident where he shot Mandla and what action was taken. Please do not generalise Mr Nkosi.

MR NKOSI: We decided that he should be killed or burned.

MS MAKHUBELE: Did you do that?

MR NKOSI: No, it didn't happen because we would not be able to get hold of him.

MS MAKHUBELE: But did you at any stage go to his home before his death to carry out your decision to either kill him or burn him?

MR NKOSI: Yes, we did.

MS MAKHUBELE: When was this?

MR NKOSI: Around June 1999.

MS MAKHUBELE: What happened there when you got to his home and you didn't find him?

MR NKOSI: He was not at home, so we just broke the windows.

MS MAKHUBELE: Do you know any specific person who came up with that suggestion that he should be killed?

MR NKOSI: You mean at the meeting?

MS MAKHUBELE: Yes.

MR NKOSI: It was the Chairman.

MS MAKHUBELE: Who is it?

MR NKOSI: Solly Mhlule.

MS MAKHUBELE: How many months or days between the incident where you went to his home and broke windows and his death, actual death?

MR NKOSI: Two months.

MR LAX: Listen, the thing - you went there in June and you broke the windows and he was killed on the 14th of October 1990, that's four months.

MS MAKHUBELE: Thanks Mr Lax. At the time, let's go back to the actual incident. At the time when you heard the shots being fired and you went to the scene, did you know that the person that he had shot at that time was your brother?

MR NKOSI: No, I just heard shots.

MS MAKHUBELE: Did you get anything for taking part in this stoning and kicking until he died?

MR NKOSI: No, I did not receive anything.

MS MAKHUBELE: What would you say if it can be suggested that the fact that your brother was shot by the deceased on that day and you participated along with the crowd to kill him, amounts to, this in itself amounts to a benefit for you? What can you say to this suggestion?

MR LAX: Sorry, Ma'am, doesn't it amount to malice, rather than a benefit? It's a personal motive rather than anything else?

MS MAKHUBELE: Yes, may I then rephrase it to say that he was motivated by monies, that he wanted to revenge for his brother's death, what would you say to this?

CHAIRPERSON: And that it had nothing to do with politics, what do you say to that?

MR NKOSI: I would dispute that.

MS MAKHUBELE: When you went to the scene and had you found that the victim who had been shot is someone else other than your brother, would you have reacted the same way? Participate in his killing?

MR NKOSI: Yes because he was a policeman.

CHAIRPERSON: Was your brother also a comrade?

MR NKOSI: ...(not translated)

CHAIRPERSON: Was your brother also a comrade?

MR NKOSI: Yes, but he was employed, so he was not very involved in the activities.

CHAIRPERSON: He was not as active as you were, but he was a comrade but he was not as active as you were.

MR NKOSI: Yes, that is correct. He was a person who was employed somewhere in Johannesburg. He would go home only when he had some days off.

CHAIRPERSON: Ms Makhubele.

MS MAKHUBELE: Thank you. In the trial it emerged that, well it was not contested that you were not there when your brother was shot, but it emerged that your brother and the deceased, the fight was about a girlfriend. Did you come to know about this?

MR NKOSI: No, not at all, I don't know anything about that squabble.

MS MAKHUBELE: In your application you say that no order was given, that is to kill the deceased. Today you testify that Mbule gave the order. What can you tell the Commission about this, although it was not carried immediately, four months passed in between?

MR NKOSI: In my application it's not possible for me... (intervention)

MR LAX: Can you just speak a bit further away from the mike because it causes it to distort? Thank you.

MR NKOSI: I am saying it was not possible for me to state everything there because the paper was not enough. I could have included it but there was no space there.

MS MAKHUBELE: so it's your evidence that when you took part in his killing, it was because you perceived him as a threat to your organisation and as an order had already been given earlier on for him to be killed, did you hear what the others' reasons were for participating in his stoning at the time?

MR NKOSI: People were angry. I can say it was because of anger.

MS MAKHUBELE: As a result of?

MR NKOSI: Because of this innocent person who was shot at. He was lying down there without a reason, no one knew what had happened and that was not happening for the very first time because it had happened before.

MS MAKHUBELE: Thank you Mr Nkosi. For now, that's the evidence, Mr Chairman.

CHAIRPERSON: Thank you, Ma'am. Ms Vilakazi, have you got any questions?

MS VILAKAZI: Mr Chair, there's quite a few points that were raised in the evidence in chief which I would require to take instructions on before going on cross-examination. May I be allowed the opportunity to take instructions? I don't think there'll be need for the Panel to rise, I need just a few minutes.

CHAIRPERSON: Yes. No that's in order Ms Vilakazi.

MS VILAKAZI: Thank you Chairperson. I'm ready to proceed.

CHAIRPERSON: You surprised us Ms Vilakazi. Please go ahead.

CROSS-EXAMINATION BY MS VILAKAZI: Mr Nkosi, when you gave ...

MR LAX: Just put your microphone on, please. Thank you.

MS VILAKAZI: Mr Nkosi, when you gave evidence you said that in response to the question that was asked to you as to what role did you play in the killing of the deceased, you said that you kicked him and threw stones at him. Did I hear you correctly?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: I'm putting it to you that that is not correct because you were seen at the scene of the crime holding a knife and the deceased was stabbed several times. What is your comment on that?

MR NKOSI: There were many people there and a person who would say that he saw me with a knife, I don't think that is true because there were many people on that scene.

MS VILAKAZI: So are you denying that you had a knife?

MR NKOSI: Yes, I dispute that because I don't normally carry a knife.

MS VILAKAZI: In your evidence you have also made reference to your political affiliation being to Inyanza Political Organisation and you said that that organisation was fighting the government against oppression. I'm putting it to you that the Inyanza Political Organisation was the governing political organisation, so therefore it was not possible for Inyanza to oppose government, what is your comment?

MR NKOSI: That is a mistake. That is a big mistake because there was no relationship between the boers and the Inyanza.

MR LAX: Which ...(intervention)

MS VILAKAZI: I'm sorry.

MR LAX: Which political organisation was in charge of that homeland at that time?

MR NKOSI: Will the speaker please repeat the question?

MR LAX: Which political organisation was running the homeland at that time?

MR NKOSI: It was Inyanza National Movement only.

MR LAX: Well that's exactly what the advocate's just put to you.

MR NKOSI: It looks like she is saying that it had a relation with the government.

MR LAX: It was the government of the homeland.

CHAIRPERSON: Which government are you referring to, Mr Nkosi? Are you referring to ...(intervention)

MR NKOSI: I am talking about the boer government of South Africa.

CHAIRPERSON: You talk about the apartheid government?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: And are you saying that this organisation had no contact with the apartheid government?

MR NKOSI: Yes.

CHAIRPERSON: And it was engaged in fighting the oppression of that apartheid government of Pretoria?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: But the Homeland, Kangwane Homeland government, in the Homeland itself, in the apartheid Homeland?

MR NKOSI: Will you please repeat the question, Sir.

CHAIRPERSON: Now I want to come - I know now you've spoke about the Pretoria government, now I'm coming to the government in the Homeland in Kangwane at that stage. Now Ms Vilakazi says that this Inyanza National Movement was the governing party in Kangwane at that time. Is that right?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Alright. Yes, Ms Vilakazi.

MS VILAKAZI: Mr Chair can I repeat my statement to him and get his response in the light of the fact that he's now clarified the position.

CHAIRPERSON: Yes, perhaps you must make it clear the distinction between Pretoria and Kangwane so that he's not under a misapprehension which one you're referring to. I assume your question is directed at the Kangwane situation?

Alright. Perhaps you must just make it clear when you repeat it to him.

MS MAKHUBELE: Before she proceeds, Mr Chairman, in his answer I wanted the interpreter to complete the interpretation. I don't know, maybe there's something wrong with my earphones but then he said something about comrade Tambo and Mabuza which was not translated. It was not interpreted.

CHAIRPERSON: Have you missed that? Shall we ask him to repeat that?

MS MAKHUBELE: The answer, yes.

CHAIRPERSON: Mr Nkosi, we spoke too much. Unfortunately the interpreter didn't hear everything. You said, you referred, did you hear now what your advocate said, Ms Makhubele? She says that you added something further to your answer about some people, comrades or whatever? Just repeat it.

MR NKOSI: I said I do not believe that Inyanza National Movement can be associated with the boer government because Comrade Enos Mabuza managed to go and visit Comrade Oliver Tambo in Lusaka, therefore that would not be possible for Comrade Mabuza to be in favour of that boer government.

MS MAKHUBELE: Thanks Mr Chair.

CHAIRPERSON: Ms Vilakazi, you can try again.

MS VILAKAZI: Okay in the light of what you have just said now, the government which was governing the area that you stayed in was the government of Kangwane, is that correct?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: And the ruling party in that government was the Inyanza National Movement as you call it, is that correct?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: So, if you were not satisfied about the delivery of services, you would direct your misapprehension to that government, is that correct?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: So you were not fighting the Inyanza, the government in Kangwane, is that correct?

MR NKOSI: The Kangwane government is the one that we would approach if he is not delivering, we have the right to fight the government because we would be the people who put that government in place.

MS VILAKAZI: Well I will not pursue that matter any further.

CHAIRPERSON: Politics are always very confusing.

MS VILAKAZI: Okay. In your evidence you also made reference to an incident at the taxi rank where Mandla was shot. Do you remember that?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: I am putting it to you that the incident that took place at the taxi rank which involved the deceased did not involve any shooting at all. What is your comment?

MR NKOSI: That is news to me.

MS VILAKAZI: And also that it is the deceased and his sister who were attacked, they were not the aggressors, what is your comment?

MR NKOSI: I said that is news to me.

MS VILAKAZI: Were you there at the taxi rank, or did you just hear about that incident?

MR NKOSI: Yes, I was there at the scene, I was there at the taxi rank.

MS VILAKAZI: And who was the deceased with?

MR NKOSI: I saw him alone.

MS VILAKAZI: How do you know that the person you alleged shot, is the deceased?

MR NKOSI: I said I knew the deceased.

MS VILAKAZI: Okay. You also referred to a march that took place to the Magistrates office, I'm putting it to you that no such march took place, what is your comment?

MR NKOSI: Myself and the school children, I was once an organiser for that kind of a march.

MS VILAKAZI: You also made reference to a group of people marching to the home of the deceased after a decision was taken that the deceased should be attacked. Did you march to the deceased's home? Did I understand you to say you marched to his home?

MR NKOSI: Yes, we went straight to his home.

MS VILAKAZI: And where is that home?

MR NKOSI: It was at No. 1, Ntlazashe, just towards the bridge.

MS VILAKAZI: I'm putting it to you that the deceased did not stay at his home, he stayed at the police barracks.

MR NKOSI: But we found him there, he used to be there all the time.

MS VILAKAZI: When you say there, what do you refer to? At the barracks or at No 1 Ntlazashe?

MR NKOSI: I am talking about this particular house that I refer to it as his home, he used to be there all the time.

MR LAX: Did I hear you correctly to say you found him there?

MR NKOSI: Sorry?

MR LAX: You just said, we found him there at this house.

MR NKOSI: On that day of the march he was not there, it's only the mother who was there.

MS VILAKAZI: So when you say that you found him there, what were you referring to?

MR NKOSI: I was saying all the time when we would be passing by, we used to see him there in that particular house.

MS VILAKAZI: I want to refer you to your application. On page 11 of the translation, in response to question in paragraph 9 (a) (i), it's the same paragraph that was referred to earlier on, you said the acts that you are applying amnesty for are the killing of a policeman by burning him alive.

MR NKOSI: Killing of a policeman.

MS VILAKAZI: But in your form it says: "by burning him alive".

CHAIRPERSON: Is that what the original says? Have you looked at your original.

MS VILAKAZI: I'm looking at it.

CHAIRPERSON: Oh, you can also read the original.

MR NKOSI: ...(not translated)

MS VILAKAZI: Yes.

MR NKOSI: It is possible that there was a mistake when I was writing there, but he was ...(indistinct) with stones.

MS MAKHUBELE: Well, Chairperson, if I may just come in.

Original says with the intention.

CHAIRPERSON: With the intention?

MS MAKHUBELE: With the intention to burn him.

CHAIRPERSON: Oh, with the intention to burn him.

MS MAKHUBELE: Yes, that's on page 3.

CHAIRPERSON: So we should add in here...

MS MAKHUBELE: Murder of a policeman with the intention to burn him.

CHAIRPERSON: With the intention.

MS MAKHUBELE: Yes.

MR NKOSI: I am sure that he was not burned.

CHAIRPERSON: Yes. Ms Vilakazi, I don't know if you can read the original.

MS VILAKAZI: Yes, I've ...

CHAIRPERSON: Do you agree with that?

MS VILAKAZI: Well, my understanding of Seswati is not that good.

CHAIRPERSON: Oh okay, okay. No alright. It's not necessary to test that knowledge.

MS VILAKAZI: On answering question 11 (a) I would start with the English version. The question related to whether an instruction was, or an order was issued for the action to take place, then the answer is no, except that the comrades were acting in the interest of the community and protecting same. In the original the answer is ..., means no, isn't it?

MR NKOSI: I am not clear as to what you are talking about Ma'am. At the moment I don't have that form with me.

MS VILAKAZI: Mr Chairperson, I would ask that his legal representative assist him.

MS MAKHUBELE: I have just him, ... and no are the same thing which is in the translation as well as the original.

CHAIRPERSON: So he agrees with that translation, that ...(ethnic) means no.

MS MAKHUBELE: Yes.

CHAIRPERSON: Alright. Ms Vilakazi.

MR NKOSI: Yes, that is correct.

MS VILAKAZI: And then you proceeded to write in that paragraph, I'll read it in Seswati....(ethnic) In English it's translated:

So in your application, you specifically said that you were not acting in pursuance of instructions. You said "No". Now when your counsel asked you why, you said you were not given any instructions, you said it's because the space was small, there wasn't enough space. Now I'm putting it to you that you gave a definite answer and the definite answer is "no." It's a direct answer to the question and that you had sufficient space to explain whatever you would have wanted to explain, if you wanted to explain something else. There's no reason why you wrote something that you meant.

MR NKOSI: I understand you question but do you think that there was sufficient time but according to me there was not enough space there because I could have explained a lot but I decided to put just a little bit because the space there was not enough.

MS VILAKAZI: Mr Chairman, I'd no ...(mike not on)

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga, have you got questions?

MS MTANGA: Yes, Chairperson.

CROSS-EXAMINATION BY MS MTANGA: Mr Nkosi, why was your brother shot by the applicant?

MR NKOSI: I was not with my brother. I did mention that I was not always in the company of my brother because he was the eldest. Most of the time I was not there with him. When I got out of my home I saw him lying there when he was shot at.

MS MTANGA: I'm sorry, I made a mistake when I said the applicant, I meant the deceased. You were in court and some evidence was tendered as to what had happened between your brother and the deceased. Can you tell this Panel what had happened, what was said in court?

MR NKOSI: In court everything was in Afrikaans and I did not understand Afrikaans. I did not hear a thing up till the end of the proceedings.

CHAIRPERSON: Wasn't there an interpreter, that interpreted for you into Seswati?

MR NKOSI: There was a person who was interpreting but he was doing it in Pedi and I also do not understand that language.

CHAIRPERSON: Were you the only accused?

MR NKOSI: In that case, if I'm not mistaken, we were 5 or 6.

CHAIRPERSON: 6 accused I'm told. And are there some of them that speak Pedi?

MR NKOSI: Do you mean among us?

CHAIRPERSON: Because you say that this interpreter was speaking some other language. He was not interpreting in Seswati. He was speaking some other language.

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Now was there amongst those accused, those 6 of you, were there people who spoke that language that the interpreter was interpreting into?

MR NKOSI: Lukas Shabangu understood Pedi. Some of them understood that language because they were working in the firms and I was just fresh from school at the time.

CHAIRPERSON: Somebody said here that they allege there that your brother and the deceased were arguing about a girlfriend.

MR NKOSI: Yes, I heard that.

CHAIRPERSON: Were they talking about that in court, about this girlfriend story?

MR NKOSI: Yes, they were talking about this girl that I don't know about.

CHAIRPERSON: Alright. Yes, Ms Mtanga.

MS MTANGA: Thank you Chairperson. Chairperson I would just like to point out that I would find it a serious travesty of justice from our courts of law to have evidence led in Pedi when the victims were Swazi speaking and all the applicants were Swazi speaking, so I have serious doubts about what the applicant is saying because surely they would have led their evidence in Seswati as well when they were responding to the questions put to them.

CHAIRPERSON: Yes, I think one normally expects that they are supposed to provide interpreters who would interpret into the language that the accused speak, that's what one normally expects to happen in court, but he does say that he'd heard something about the girlfriend story so perhaps that is a point of ...(indistinct)

MR LAX: Sorry, what language did you testify in Mr Nkosi?

MR NKOSI: ...(not translated)

MR LAX: What language did you testify in?

MR NKOSI: I used the language that I'm using now.

MR LAX: Yes. And they were able to translate that fairly adequately it would seem.

MR NKOSI: I hope they managed to interpret that.

MR LAX: No, fine.

CHAIRPERSON: In which year were you tried? Oh, 91. Alright. Yes, Ms Mtanga.

MR NKOSI: In 1990 on the 16th October.

CHAIRPERSON: Yes.

MS MTANGA: Are you aware that the evidence that was there in court ...

CHAIRPERSON: Oh you were tried by a Circuit Supreme Court that was sitting at Lydenburg it seems.

MR NKOSI: That is correct.

CHAIRPERSON: Yes. So it wasn't at the regular court house, this was a travelling court. The Judge and everybody else travels around, they take interpreters too. It seems like you were tried in one of those courts.

MS MTANGA: Can I go ahead, Chair?

CHAIRPERSON: Yes, go ahead Ms Mtanga.

MS MTANGA: The evidence that was led in court was to the effect that your brother whom you allege was shot at by the applicant, had assaulted the girlfriend of the deceased. Did you explore the truthfulness, did you verify the truthfulness of this with your brother?

MR NKOSI: After we were sentenced he was also in jail and he told me that there was a quarrel between him and that girlfriend.

MS MTANGA: So the witness who gave evidence there was your brother's girlfriend. Do you admit that? A certain person by the name of Selinah Bembe gave evidence.

MR NKOSI: My brother had a wife. I don't know whether he had another girlfriend, except his wife.

MR LAX: But you've just said to us, you said to us now that you spoke to your brother about this and he confirmed that it was a quarrel over this girl.

CHAIRPERSON: Whose girl was it? Was it the deceased's girl or was it your brother's girl, whose girlfriend was this? Do you know?

MR NKOSI: He told me that there was a quarrel between him and a girl, that's what led us to prison.

CHAIRPERSON: So he had an argument with a girl and that's how this deceased became involved.

MR NKOSI: I am not sure whether they fought but when I went out I saw my brother who was shot. That is when I rushed to the direction of the noise. I don't know when this squabble had started. I knew nothing about it.

CHAIRPERSON: You don't know whether your brother had a girlfriend or not?

MR NKOSI: No, I don't know.

MS MTANGA: I also wish to point out to you Mr Nkosi that even though this girl denied that she had a relationship with your brother, your brother's counsel put it to the witness who was this girl that it's alleged that he had assaulted, that she had a relationship with your brother and this must have been at the, the counsel must have been acting upon instructions given by your brother who was at this scene with the girlfriend and the deceased. What do you say to that?

MR NKOSI: Are you talking about my brother's counsel?

MS MTANGA: Yes, Mr Nkosi.

CHAIRPERSON: Mr Nkosi ...(intervention)

MR NKOSI: I cannot comment about that.

CHAIRPERSON: Alright. I don't know how far it's going to take us.

MS MTANGA: That is the evidence that was led in court and based on the evidence given in court and what you've told us here today, you don't seem to know exactly what took place between the deceased and your brother which led to your brother being shot. So what I'm trying to point out to you, that the evidence that was led in court, which your brother seemed to have supported in some way was that there was a fight over the girl, the woman the deceased was with. The fight was between your brother and the policeman, but it was not because your brother was a comrade, it was over the girl that the deceased was with. What do you say to this?

MR NKOSI: No, I cannot comment to that effect. I do not know anything about that.

MS MTANGA: This brings me to my final point, Mr Nkosi that your killing of the deceased had nothing to do with politics. The source of the dispute on that day was this attack on your brother and the attack of your brother resulted from, did not result from politics but from a personal squabble between the two people and therefore you cannot claim that this incident was political. What do you say to this?

MR NKOSI: I do not have a response to that. I don't even know what was the reason for them to fight.

MS MTANGA: No further questions, Chairperson.

CHAIRPERSON: Thank you Ma'am. Are there any questions from the Panel?

MR SIBANYONI: Did you know that people apply for amnesty only for political acts?

MR NKOSI: Yes I do know that.

MR SIBANYONI: What you did in killing the deceased, would you say, was it political?

MR NKOSI: Yes, it is politically motivated.

MR SIBANYONI: What way?

MR NKOSI: I did indicate that the deceased was involved in some incident as a perpetrator and he was later found. This other case is an exception but he was later involved in a squabble between him and the comrades.

MR SIBANYONI: But you took action against him for killing your brother, is that not so, for shooting your brother, let me correct myself.

MR NKOSI: He was assaulted by a group of people because it was well-known that he was once involved in some incident as a perpetrator, that is why he was killed.

MR SIBANYONI: If he hadn't shot your brother on that day, he wouldn't have been killed on that day, do you agree?

MR NKOSI: Yes he would not be killed on that particular day but after some time he would later be found because the police were not doing their job properly and we wanted to know why did they fire some shots at the taxi rank.

MR SIBANYONI: And you have just considered that you can't dispute the fact that the squabble between your brother and the deceased was over a girlfriend, is that so?

MR NKOSI: I said I don't know what is it that they were fighting for.

MR SIBANYONI: And you can't say it was political?

MR NKOSI: That would not be politically motivated if it is said that they were fighting over a girl. I cannot say that is political.

MR SIBANYONI: I heard you saying in one of your answers, your brother said to you, "You are now arrested, you are in jail over a girl". Did I understand you correctly?

MR NKOSI: Did he say that I was arrested for a girl?

MR SIBANYONI: No that the cause of your arrest started over a dispute over a girl. Did I understand you correctly?

MR NKOSI: Yes, that is correct.

MR SIBANYONI: Thank you, Mr Chairperson.

MR LAX: Just one small thing Chair.

CHAIRPERSON: Yes.

MR LAX: Isn't it correct, when you saw your brother lying there you got angry, you were shocked, you decided you were going to chase this man who had done this thing to your brother?

MR NKOSI: I have a problem with my headphones Sir, I did not hear your question.

MR LAX: Can you hear now?

MR NKOSI: Yes, it is better now.

MR LAX: Isn't it so that you testified that when you saw your brother had been shot, when you recognised the person lying on the ground as your bother you got very angry and you decided to chase the person responsible?

MR NKOSI: Yes, I said so.

MR LAX: And so the reason why you chased him and ultimately assaulted him wasn't because of the order you had got at some point previously, four months earlier, it was because you were angry at seeing your brother lying there on the ground, shot.

MR NKOSI: No, that is not correct.

MR LAX: You would have us believe that this policeman was a wanted person in the community.

MR NKOSI: Yes, that is correct.

MR LAX: And yet on your own version, you saw him regularly at his house when you passed that place. He wasn't always in the barracks and four months passes between the time you first go and look for him to the time of this incident. And in fact on the day in question, you brother is walking with other people, they don't attack this man, in fact they have a quarrel with the girlfriend. Why did nothing happen to him in the intervening period?

MR NKOSI: I did mention that my brother would come only once in a time when he was off at work but it was just a coincidence that when he was off and this incident took place.

MR LAX: Was he only off once in four months?

MR NKOSI: He would come home once or twice a year.

MR LAX: Wouldn't you agree that a person walking down the road normally with his girlfriend, open to everybody is hardly the action of a man that's wanted, that has to worry about his safety all the time?

MR NKOSI: Yes, that is possible, because if you are armed with a firearm you could do that.

MR LAX: No further questions.

CHAIRPERSON: Was there a group of people that attacked this deceased?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Were there any other of your family members in this group of attackers?

MR NKOSI: Yes, there were other family members.

CHAIRPERSON: And how large was this group of people, group of attackers?

MR NKOSI: Do you mean all of them? There were many. There were a lot of people who were there at that scene.

CHAIRPERSON: Was it a large crowd?

MR NKOSI: Yes, that is correct because it was next to the school and there were even children who were coming out of school.

CHAIRPERSON: Were your family members, were you in the minority in this group or were you the majority in the group, or what?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: What? Were you in the minority or the majority?

MR NKOSI: The people were in the majority and our family was in the minority of the group.

CHAIRPERSON: And they all participated in killing this policeman?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Was the intention to burn him, or what?

MR NKOSI: There were petrol bombs, if there were petrol bombs and the other stuff that could be used, that would have happened.

CHAIRPERSON: Were there occasions, let me ask you this. People who committed crimes in your area there, were they arrested by the police?

MR NKOSI: Yes, they would be arrested by police.

CHAIRPERSON: Would people go and make cases against offenders and go to the police, they would lay a charge there, the police would then go and arrest the person, take him, lock him up, take him to court.

MR NKOSI: Yes, that is correct.

CHAIRPERSON: And were there - was that sort of thing happening there? People went to report cases to the police and people got arrested for committing crimes and so on?

MR NKOSI: Yes, that is correct. That used to happen.

CHAIRPERSON: Did anybody suggest that that policeman should be, after he fired the shots, that a case should be made against him?

MR NKOSI: As I did indicate that in our meeting we discussed about this issue.

CHAIRPERSON: And on the scene of this, now we come to the scene where your brother has been shot, was there anybody there that was saying: "Look, let's go and lay a charge against this man"?

MR NKOSI: No, no-one suggested that.

CHAIRPERSON: They rather just attacked him.

MR NKOSI: It was only suggested that he should be attacked.

CHAIRPERSON: Yes. Did you try to lay a charge against this deceased on a previous occasion?

MR NKOSI: Yes, we once tried.

CHAIRPERSON: Was it because of that incident at the taxi rank?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: And did you say nothing came of that case?

MR NKOSI: They would not listen to the grievances of the community.

CHAIRPERSON: Was that the only case that the people tried to make against this deceased, or were there other charges as well that they tried to make against him?

MR NKOSI: That was the only incident.

CHAIRPERSON: Yes. Thank you.

MR LAX: If I can just, Chair, sorry there's something I forgot to ask about it, I've just remembered now and that was, do you remember the evidence of Mr Zulu in the trial?

MR NKOSI: No, I cannot say I can still remember because that happened some time ago. I was sentenced 8 years ago. I don't know whether I can still remember something.

MR LAX: Well Mr Zulu was the man who was sitting in his house when the deceased ran into the yard. He says that the deceased was chased by only 5 people. He then proceeds to describe how the five of you assaulted the deceased and how you left him at the gate. He doesn't talk about a huge crowd of people, he says there were just five of you and that evidence was accepted by the Judge in the trial. So can you explain this?

MR NKOSI: Yes, I can explain that. I also want to say that Mr Zulu was the one who was supposed to be burned because everything that he mentioned in court, he was doing that because the police instructed him to do so. He knew nothing. The deceased never got inside his house, he was just at the gate but now he is talking about 5 people, everything that he was saying, he was not there and it's not true.

MR LAX: So you didn't assault the accused at the gate of his house? You didn't stone him and kick him and all the other things that happened to him there, hit his head with rocks and so on?

MR NKOSI: I want to explain that one. The deceased was taken from that gate and he was taken down next to St John's. The St John's was near, he was not assaulted, he was only assaulted next to St John's, next to the river, he was never assaulted at Mr Zulu's gate.

MR LAX: No further questions, Chair.

MR SIBANYONI: Chairperson, I forgot to ask something.

CHAIRPERSON: Yes.

MR SIBANYONI: Mr Nkosi, was the deceased employed by the South African government or by the Kangwane government?

MR NKOSI: I think that the police were employed by the South African government though I am not sure about this.

MR SIBANYONI: Thank you Mr Chairperson.

CHAIRPERSON: Thank you. Any re-examination, Ms Makhubele?

RE-EXAMINATION BY MS MAKHUBELE: Yes, Mr Chairman. It's just one or two issues. The first which I said I will clarify in his application on page 3. When you, Mr Sibanyoni, said that the translator was probably confused by the word that you said, "murderer", when you called the deceased murderer, what were you referring to?

MR NKOSI: Because he killed the people and then he was doing it for the second time, so it meant that he was a murderer.

MS MAKHUBELE: Another thing was you appeared to be confused about the political scenarios. During 1990 would you say, rather let me put it this way. Would you say the transition when Inyanza, when you said Inyanza became part of ANC and the transition into the new government, who were you actually fighting against? The Inyanza or the incoming government?

MR NKOSI: We were fighting the boer government.

MS MAKHUBELE: I have nothing further to address.

CHAIRPERSON: Thank you, Makhubele. Yes Mr Nkosi you're excused, thank you.

CHAIRPERSON: Yes, Ms Makhubele.

MS MAKHUBELE: That's the applicant's evidence.

CHAIRPERSON: Is that the applicant's case?

MS MAKHUBELE: Yes.

CHAIRPERSON: Thank you. Ms Vilakazi, have you got any evidence that you intend to tender?

MS VILAKAZI: Thank you Mr Chairman. I would tender evidence by calling one witness.

CHAIRPERSON: Yes, who's that man?

MS VILAKAZI: Sibongile Hlanga.

CHAIRPERSON: Would that witness please come forward? What is his surname?

MS VILAKAZI: Hlanga.

SIBONGILE HLANGA: (sworn states)

CHAIRPERSON: Yes, ms Vilakazi.

EXAMINATION BY MS VILAKAZI: Mrs Hlanga, the deceased Christopher Mabika was your brother, is that correct?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: What job do you do, Ms Hlanga?

MS HLANGA: I am a policewoman.

MS VILAKAZI: Were you a policewoman in September 1990 at the time when your deceased died?

MS HLANGA: Yes, I was still a policewoman.

MS VILAKAZI: When did you become a police officer?

MS HLANGA: I joined in 1986 December.

MS VILAKAZI: Where were you stationed?

MS HLANGA: At eLukwatini.

MS VILAKAZI: Were you also stationed at eLukwatini around the time of your brother's death?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: The applicant in this matter has stated that eLukwatini is a rural area. Do you confirm or dispute that?

MS HLANGA: Yes, I agree with that.

MS VILAKAZI: What was the political climate at that area of eLukwatini?

MS HLANGA: There was nothing much because all of us, we were belonging to Inyanza and even our emblem was Inyanza even though there was another party, Ntsika, but there was no conflict between the two.

MS VILAKAZI: The Inyanza political party was the ruling party, is that correct?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: And what was the relationship between Inyanza and the Ntsika Political Party that you have referred to? Would you say there was a hostile environment between the two political parties?

MS HLANGA: I cannot say because I was not a member of Ntsika, I was just belonging to Inyanza.

MS VILAKAZI: In the area of eLukwatini, were there any political upheavals around the time of 1990?

MS HLANGA: No, there were no political upheavals.

MR SIBANYONI: Ms Vilakazi, may I ask one question while we are still there? Did your brother belong to any political party?

MS HLANGA: No he did not belong to any political party, he was just belonging to Inyanza because even the police belonged to Inyanza.

MR SIBANYONI: Was he a member or a supporter of Inyanza?

MS HLANGA: No, not at all.

MR SIBANYONI: What was he of Inyanza, because you say he was with Inyanza?

MS HLANGA: The Police Force, the Kangwane Police Force was referred to as Inyanza even our badges were written Inyanza, but we were not members of the political parties.

MR SIBANYONI: What badges are you referring to?

MS HLANGA: The emblem of the cap and the shoulder, the ranks of the police.

MR SIBANYONI: It was written Inyanza?

MS HLANGA: Yes, that is correct.

MR SIBANYONI: Thank you.

MS VILAKAZI: Ms Hlanga, were there any comrades in the area of eLukwatini?

MS HLANGA: Yes, there were comrades but not that much.

MS VILAKAZI: To which political organisation did those comrades belong to?

MS HLANGA: We would see them at the police station when there is a case. We used to see them there when they were at the police station, but I do not know which party they belonged to.

MS VILAKAZI: So those comrades were concerned with community matters, would you say so?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: And not necessarily political matters.

MS HLANGA: No.

MS VILAKAZI: What was the attitude of the community towards the police at that time?

MS HLANGA: There was no problem at all. People were free to do as they please.

MS VILAKAZI: Do you mean that the policemen would walk around freely around the community?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: Do you know if any police officer was attacked for being a policeman?

MS HLANGA: No I just heard for the very first time about my brother.

MS VILAKAZI: At the time of your brother's death, were you there at the scene of the crime?

MS HLANGA: I was called while I was in the barracks. I was told that he was assaulted and then I went there.

MS VILAKAZI: When you arrived at the scene, was your brother still alive?

MS HLANGA: He was lying there looking up and I called him, I said: ...(indistinct) and then he looked on the other side and I said: "He's dead" and then he said, this one, the applicant said: "Oh this dog is not dead". He said: "Why this dog cannot bark", that's what Keshla said.

MS VILAKAZI: Do you know why your brother was killed?

MS HLANGA: I heard that in court in Lydenburg.

MS VILAKAZI: And what was said was the reason for his death?

MS HLANGA: They said Keshla's brother asked for a cigarette and my brother refused to give him and then they said why would he propose a girl from Ntlazashe because he did not belong there and that is when this whole thing started.

MS VILAKAZI: So this girl that was made reference to in court, do you know who it was?

MS HLANGA: Yes, I know her.

MS VILAKAZI: Who was it?

MS HLANGA: Her surname was Bembe, Jane Bembe, the name is Jane and the surname is Bembe.

MS VILAKAZI: Was there any relationship between this Jane Bembe and your brother?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: What was the relationship?

MR HLANGA: They were in love.

MS VILAKAZI: Your brother was also a police officer, that has been confirmed. Where was he staying?

MS HLANGA: He was staying at the barracks.

MS VILAKAZI: The applicant made reference to number 1 Ntlazashe, do you know that address?

MS HLANGA: That is where his girlfriend was staying.

MS VILAKAZI: Did you brother stay with his girlfriend at that address?

MS HLANGA: No, he was not staying with her. He would pay her a visit and go back to the barracks.

MS VILAKAZI: The applicant in this matter made reference to an incident that happened at the taxi rank which involved your deceased brother. Do you know about any incident which involved your deceased brother that took place at the taxi rank? Can you tell the Committee about that incident?

MS HLANGA: Yes, I know about that incident. We were off at about 4. We took taxis.

MS VILAKAZI: When you say "we", who are you referring to?

MS HLANGA: Oh, okay. We had a day off with Dumisa Christopher. We left at about 4. We took taxis. We bordered taxis to cross roads of Ntlazashe. When we arrived there we did not get the taxis. We couldn't get the taxis to Barberton and we hitch hiked there and we got a lift. Taxi drivers came and they assaulted us telling us that we are not supposed to hitch hike before their taxis and we went to the police station to open the case and on that particular day we did not have firearms.

MS VILAKAZI: So are you saying that you were attacked by taxi operators for hitch hiking?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: Is there any other incident which took place at the taxi rank in which your brother was involved?

MS HLANGA: No, there's no other incident.

MS VILAKAZI: The applicant said that subsequent to that incident at the taxi rank, the members of the community went to report the matter to the police station.

MS HLANGA: He is lying.

MS VILAKAZI: If that happened would you have known of that?

MS HLANGA: Yes, it would be possible for me to know about that because when I laid charges because I was assaulted and even the one who would claim that he was shot at and Keshla would be there and we would see that particular person and he would also lay charges.

MS VILAKAZI: The applicant also made reference to a march that took place to the magistrate's offices. Was there any such march?

MS HLANGA: No, I do not remember.

MS VILAKAZI: During your stay at the time when you were working at eLukwatini, do you remember any time when the members of the community held a march?

MS HLANGA: I remember the school children from ...(indistinct) not the community members, only the children who were against their principal.

MS VILAKAZI: Would you say that the eLukwatini community was a politically active community?

MS HLANGA: No, not at all, there's nothing like that.

MS VILAKAZI: In my consultation with your family, you made reference to the condition of your mother. Can you describe to the Committee the health condition of your mother at the present?

MS HLANGA: All I can say is that Christopher, after leaving college, after finishing college he worked for only 2 months.

MS VILAKAZI: Can I ask Mr Chairman, that we give the witness opportunity to recollect herself?

CHAIRPERSON: Yes ...(indistinct - background noise)

MS HLANGA: My brother worked only for two months. After that he left the job. He told my mother to stop working because he was prepared to support her because he was working. After this incident she fell ill, my mother, that is. We have taken her to different doctors but still she cannot get better. Because all of us her daughters were all married and he was prepared to support her, my brother that is.

MS VILAKAZI: Did you mother have a good health before the incident?

MS HLANGA: Yes, she was healthy because she was working for herself.

MS VILAKAZI: Would you say that her condition deteriorated because of your brother's death?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: Is it possible for your mother to assume formal employment now?

MS HLANGA: No, not at all.

MS VILAKAZI: Would you say that, I think you were listening to the applicant as he was giving evidence, would you say that he told this Hearing the truth?

MS HLANGA: He was telling lies.

MS VILAKAZI: Would your family be prepared to forgive him if he tells the truth?

MS HLANGA: No.

MS VILAKAZI: I have no further questions.

CHAIRPERSON: Thank you Ms Vilakazi. Ms Makhubele any questions?

MS MAKHUBELE: Yes, Mr Chairman, I don't think the kind of questions I have will take the matter any further because of the - I don't know whether the applicant, maybe if he had disclosed in his application, some of the issues would have been investigated and the witness in her position as a police officer and also as a trusted person, I don't know if she would be in a position to provide the answers to the questions, so I feel I shouldn't ask her any questions.

CHAIRPERSON: Alright. So you don't have any questions for the witness?

MS MAKHUBELE: No.

CHAIRPERSON: Very well. Ms Mtanga, any questions?

MS MTANGA: I have no questions Chairperson.

CHAIRPERSON: Ms Hlanga, just hold on a bit. Just switch your microphone on again. Why was your brother living in the barracks?

MS HLANGA: He was working nearby from home.

CHAIRPERSON: Did you have a home in this area where this police station was?

MS HLANGA: Will the speaker please repeat the first question.

CHAIRPERSON: Did you have a home in this area where the police station was?

MS HLANGA: No. Policemen would stay at the barracks and the females would stay in the forums outside the police station.

CHAIRPERSON: So did your family have a house in the township?

MS HLANGA: No.

CHAIRPERSON: Where did your family stay then?

MS HLANGA: At Barberton.

CHAIRPERSON: Is this far from where this police station is?

MS HLANGA: Yes, it is far.

CHAIRPERSON: Is that why your brother was staying in the barracks?

MS HLANGA: Yes, that is correct.

CHAIRPERSON: Now the applicant says that after this incident between your brother and his brother, after your brother shot his brother, there was a large group of people that attacked and it seems killed your brother. Now I know you came to the scene afterwards but let's assume that is the position, why would that have happened?

MS HLANGA: I think the quarrel was over a girl.

CHAIRPERSON: Yes. No it seems as if this thing started off quite innocuously, you say that somebody spoke about passing a cigarette and then there was this talk about a girl but I mean it went completely out of control. One person got shot and the other one got attacked by a large group of people.

MR LAX: ...(indistinct - mike not on)

MS HLANGA: It started over a cigarette when one was asking for a cigarette.

CHAIRPERSON: Just a minute. Just repeat that.

MS HLANGA: It started when one asked for a cigarette.

CHAIRPERSON: Yes, it seems to have started from nothing in real sort of ...

MS HLANGA: Yes.

CHAIRPERSON: And it ended up with one person being shot in the head apparently and another person ...(intervention)

MS HLANGA: I never heard that he was shot at, I was told that he was pelted with a stone, he only fired warning shots in the air, he did not shoot him.

CHAIRPERSON: Did you see the applicant's brother at this time when this thing happened.?

MS HLANGA: Yes, I saw him.

CHAIRPERSON: Where did you see him?

MS HLANGA: I saw him in prison.

CHAIRPERSON: No, no, I'm talking about the incident. I'm talking about the scene where this whole incident happened.

MS HLANGA: I saw him sitting down.

CHAIRPERSON: Oh sitting down. Was he injured?

MS HLANGA: Yes, he was injured and he was bleeding.

CHAIRPERSON: Yes. And your brother was attacked and on what the applicant tells us, by a large group of people. He was killed, he was stabbed apparently and he died of his injuries.

MS HLANGA: It comes as a surprise to me when he's referring to a crowd of people because all I know is that only the Nkosi family was arrested, two family members, the other one was Maseko and the other one was Shabangu.

CHAIRPERSON: Yes, he says that as well, the applicant says that as well, his family members were arrested. Now it started off with absolutely nothing over a cigarette and a girl, some talk about a girl and it ends up in this sort of way. Have you possibly got any explanation at all that might assist us to understand how this happens?

MS HLANGA: I won't want to lie. I don't know why was he killed and it's something that I normally think about. I thought that maybe they were angry because this policeman was not from Ntlazashe, came and had a girl in that area. That is what is on my mind.

CHAIRPERSON: The applicant says that apparently your brother has been involved in some other incidents and that he was politically he was undesirable amongst the comrades and that at some stage a decision was taken to kill him. Have you got any idea about that?

MR HLANGA: He is lying. That was not possible for the people to hate him because he only worked for two months and I do not think that there was a decision that was taken to kill him, that is not true.

CHAIRPERSON: Was he badly injured, your brother, in this incident? Did he have many wounds?

MS HLANGA: Yes, he was badly injured because his right eye was swollen and he had stab wounds on his back and on the post mortem report it was stated that the eye was stabbed as well with a knife or sharp object.

CHAIRPERSON: If I have heard you correctly you say that the brother of the applicant was not as badly injured, in fact you say that he was thrown with stones or something?

MS HLANGA: He was not badly injured because he could still manage to walk. He just had a swollen cheek.

CHAIRPERSON: Yes, in fact it does appear as if there are indications that he was not so badly injured. So the question that puzzles me is, why that sparked off this fatal and violent attack against your brother, he was injured very, very badly and he dies in the process. You've said you don't know, you really can't say why he was attacked, you think perhaps it's got to do with a girlfriend and the fact that he was not from the area and so on. There's no other possible explanation that you can think of that may be of assistance to us.

MS HLANGA: No, I do not know.

CHAIRPERSON: The comrades that were there, if you know, were they also opposed to the South African government, the white government, the apartheid government?

MS HLANGA: Please repeat that question.

CHAIRPERSON: If you know, you say that you're aware of the fact that there were comrades in this area. Now if you can be of assistance, to your knowledge were these comrades also opposed to the white South African government, the government of apartheid?

MS HLANGA: I do not know about that.

CHAIRPERSON: Yes. Are there any other questions?

MR LAX: Just one question Chair. You've told us that you were on the scene just as your brother apparently was dying and that the applicant made certain remarks at that time, so he was still on the scene. Is that correct?

MS HLANGA: That is correct.

MR LAX: Who else was on the scene at that time?

MS HLANGA: All the accused persons were present and Mr Nkosi was standing near the accused, near his head. The policeman who dropped me left me on the scene and went to fetch other members of the police.

MR LAX: Who else was present there?

MS HLANGA: Just members of the community were looking on. MR LAX: About how many?

MS HLANGA: Many.

MR LAX: Many. Thanks Chairperson.

CHAIRPERSON: So it seems as if this is a sort of a crime that was committed, this attack was committed, was it during the day by the way?

MS HLANGA: Yes because he knocked off at 2 p.m. from work and at about 5 I received that call that he had been assaulted.

CHAIRPERSON: So it was in the broad daylight in the public there?

MS HLANGA: That's correct.

CHAIRPERSON: And when the police came, you came with the police. The applicant and the other apparent attackers were still there, very much on the scene. They were not trying to run away or to hide or anything like that. Would that be a proper understanding of this scene that was taking place?

MS HLANGA: Yes. He and his co-accused were present. The other co-accused Mr Shabangu fled with the firearm, I did not see him at the scene.

CHAIRPERSON: Yes. Ms Vilakazi, have you got re-examination?

MS VILAKAZI: Yes I do, Mr Chairman.

RE-EXAMINATION BY MS VILAKAZI: You said that when you arrived at the scene of the crime, you saw the accused and his brothers and also members of the community.

MS HLANGA: Yes, that's correct.

MS VILAKAZI: Did it appear to you that all the people who were there were involved in the attack?

MS HLANGA: No, I wouldn't say so because the people that I think were involved had blood on their clothes but there were other people, members of the community, who were in the vicinity of St John's who were just looking on.

MS VILAKAZI: Okay, you said you saw the applicant at the scene of the crime. What was he doing at the time when you arrived?

MS HLANGA: He was just standing there. My colleague dropped me off and when I got to my brother and said: "Dumisa, Dumisa" and he turned his head, I think at that time he was dying and I said: "My brother is dead" and Mr Nkosi said: "The dog is not as yet dead" and I asked him: "If the dog is not dead, why is he not barking?" and he did not respond.

MS VILAKAZI: When you say Mr Nkosi, who are you referring to?

MS HLANGA: ...(not translated)

MS VILAKAZI: When you say Mr Nkosi, who are you referring to?

MS HLANGA: The applicant.

MS VILAKAZI: And what did he have? Did he have anything on him, the applicant I mean?

MS HLANGA: He had a knife which had blood on it.

MS VILAKAZI: When did your brother start working at eLukwatini?

MS HLANGA: I'm not sure of the date but he worked for two months up until August and he was murdered in September.

MS VILAKAZI: So you're not sure, but it's approximately two months, is that what you're saying?

MS HLANGA: I'm not sure because at the time of his appointment he was at Hammanskraal and from there he moved to eLukwatini and worked there for two months.

MS VILAKAZI: But you can say with certainty that he worked at eLukwatini around, for approximately two months?

MS HLANGA: That's correct.

MS VILAKAZI: So it is not possible that he would have been involved in an incident four months prior to his death?

MR HLANGA: No. At that time he was still at college but he was not involved in any incidents in the two months that he was employed there because he only worked at eLukwatini for two months only, not four.

MS VILAKAZI: That closes my re-examination.

CHAIRPERSON: Thank you, Ms Vilakazi. Thank you Mr Hlanga, you're now excused. Thank you.

WITNESS EXCUSED

CHAIRPERSON: Ms Vilakazi, is there any other evidence?

MS VILAKAZI: That concludes the case for the family.

CHAIRPERSON: Is that the case for the family?

MS VILAKAZI: Yes.

CHAIRPERSON: Thank you. Ms Mtanga?

MS MTANGA: I won't be leading any evidence Chairperson.

CHAIRPERSON: Thank you Ma'am. Ms Makhubele, have you got any submissions on the merits of the application?

MS MAKHUBELE IN ARGUMENT: Thank you Mr Chair. I would concede that the ...(indistinct) the quarrel started between applicant and his brother and what appears, as has been canvassed at the trial, to be a girlfriend issue, place the line between malice and political motive. The line becomes so thin, Honourable Panel, but then on the applicant's explanation, when he went to the scene, he didn't know that the person who had been shot is his brother. He is not the only person who went to the scene and it's my submission that on that basis one would say, although no evidence, that's why I said the incident which the applicant says is the reason why the community hated him, that he had shot someone, on the other hand there is evidence that indeed there was an incident but no person was shot dead. The applicant cannot prove that.

CHAIRPERSON: Is it the same incident? They seem to be totally different incidents.

MS MAKHUBELE: In ...(intervention)

CHAIRPERSON: The one that the sister is talking about seems to be something where some taxi operators assaulted them for hitch-hiking, it seems to be totally unrelated to the incident that your client was talking about where the deceased was apparently the aggressor and he assaulted or injured somebody, shot somebody, whatever the details might be.

MS MAKHUBELE: Under cross-examination I remember it was put to the applicant that there was an incident at the taxi rank but that no-one was killed, but it involved the deceased, if I recall well.

CHAIRPERSON: Yes. But now the point is, are the two people talking of the same thing? The sister only knows about one incIdent that happened, not to do with the taxi rank, it seems they'd been hitch-hiking somewhere and wherever it might be and they were hitch-hiking somewhere and these taxi operators were assaulting them, so it seems to be totally unrelated from the type of incident that your client is testifying about.

MS MAKHUBELE: Yes, that's correct, that's why I say maybe if he had mentioned it that there was one person who was killed and the name, this information should have been verified, but I cannot take the matter further than this.

CHAIRPERSON: Yes, I mean, no, no the point is, I mean there doesn't seem to be any dispute of fact here on that. I mean it seems as if the sister is talking of an incident where they went hitch-hiking and they got beaten up by taxi operators for some or other strange reason and ...(intervention)

MR LAX: Except Chair, ...(intervention)

CHAIRPERSON: Just a minute, and the applicant seems to be talking of an incident where the deceased was the aggressor, vis a vis one of the comrades and he seems to have assaulted him, or whatever he might have done. The details slip my mind now. It doesn't seem to be the same thing they're talking about. So there doesn't seem to be a dispute of fact on an incident at the taxi rank. What is your, have you got a response to that?

MS MAKHUBELE: No, no, I understand your point Mr Chairperson. I will concede that they are two different situations.

CHAIRPERSON: Yes.

MR LAX: Sorry, Chair, just to - my understanding of the sister's evidence was that it was in fact the same incident. She denied that this chap Mandla had got shot at all in that incident. He was involved in that incident she said, so my understanding was that the sister's evidence was that she was disputing that in fact there was any kind of shooting and she's in fact disputing that this chap's even dead. She said that he was one of the people who was charged in this thing. That was my understanding of what her evidence was.

MS VILAKAZI: Can I ...?

CHAIRPERSON: Yes, we'll come to you. We'll hear your submission on this. You might be able to clarify the matter for us, but this is Ms Makhubele's time to respond. Do you want to respond to this point that my colleague makes? My colleague seems to suggest that there is a dispute of fact and that the two witnesses are talking about the same incident and that the sister is contradicting your client.

MS MAKHUBELE: Yes, there is evidence of this. When one listens to the evidence of the sister, it's a different incident, but then the questions which were put to the applicant by Ms Vilakazi suggested that it's an incident at a taxi rank, but the person didn't die.

CHAIRPERSON: Yes, very well. Have you got any other submissions on this political issue? If not, you can carry on.

MS MAKHUBELE: Yes, thank you Mr Chairman. As I say the fact that when he went there he didn't know it was his brother that had been shot and also the fact that there were people there, although no-one can say who was doing what when the sister arrived, they were not doing anything but it's strange why the community was just looking on and as such I would leave the question of the political motive for your consideration. Thank you.

CHAIRPERSON: Is it likely that an innocent dispute over a cigarette and a girl could spark off this sort of response, in the absence of any pre-existing situation of antagonism?

MS MAKHUBELE: I would submit that it appears that situation rendered the, it just made the victim, the deceased available for what appears to be some prior argument or antagonism, but then ...(intervention)

CHAIRPERSON: So the nature of this contact over some innocuous business is just by the way, there is a pre-existing situation of antagonism already which is now playing itself off pursuant to what appears to be just an innocent sort of contact?

MS MAKHUBELE: I would say so. I would say so because even at the trial, the incident started, although at the trial they said there were two accused 1 and 2, but it was clear even then that the applicant was not there but that some people started it and when he gets there, not even the State witnesses would, they did not shed light as to what the quarrel was all about and suddenly the deceased was no longer at the house where it was alleged he ran to, but he is in the street and it's not known how he got out of there and which would perhaps strengthen the applicant's version that he was chased by the people who were there. The reason why they chased him and not tried to help him or tried to diffuse the tension, one would not know, that's why I say there appears to have been a grudge between the deceased and some people, who when he was rendered helpless by this initial incident of a fight between him and the applicant's brother, they then saw the chance to finish him off.

CHAIRPERSON: Yes, it seems as if the applicant's brother had very, very minor injuries, some graze to the head, according to the judgment. He had very minimal injuries.

MS MAKHUBELE: Yes, according to the judgment yes, that's the position. Maybe the bullet just grazed him or something of that nature.

CHAIRPERSON: Yes. No, no it was very minor injuries that the brother sustained and in the normal course of events in terms of normal common sense, I mean is that the kind of thing that makes the one brother so incensed that out of your pure just revenge and anger because his poor brother was grazed, he goes and he executes the assailant?

MS MAKHUBELE: Yes. Although one would not really say that when he got there, he was amongst the first to strike him or whether when he got there he found people had already started to assault him, then he joined in, in which case, if it's the second event that when he got there people were already assaulting him and then he joined in, that would make a difference.

CHAIRPERSON: Yes on his version they were, was there already a crowd when he got there?

MS MAKHUBELE: Yes and they were hitting and kicking him and then he joined in. The question would be, why were those people hitting him and had he not joined, whether it would have made any difference or not.

CHAIRPERSON: To interfere with two adults who were arguing over a cigarette and a girl, you get a lot of people coming in and attacking one of the two arguing parties and killing him.

MS MAKHUBELE: I believe the people's attention was drawn by the firearm, the shots which were fired, that's when people went in there.

CHAIRPERSON: But I mean is that the normal conduct of people where two grown-up men are arguing after having differed over a cigarette and some words over a girl, is it a normal sort of thing? Is it normal human conduct for then a group of people to join and to kill the one without any pre-existing conflict?

MS MAKHUBELE: It's not.

CHAIRPERSON: Yes, have you got any other submissions?

MS MAKHUBELE: Nothing further.

CHAIRPERSON: Yes, Ms Vilakazi.

MS VILAKAZI IN ARGUMENT: Thank you Mr Chairman. I'll

first start by addressing the issue pertaining to the taxi rank incident. There seems to be confusion with regard to whether there's one or two incidents or whether there's a dispute of facts.

CHAIRPERSON: And whether they're talking about the same thing and whether the sister can vouch for all the brother's movements and his conduct.

MS VILAKAZI: I think what can clear this is the fact that the applicant made reference to an incident that took place at the taxi rank around 4 months prior to the death of the deceased.

CHAIRPERSON: There was a bit of a lack of clarity. He, initially in his evidence said, he gave an estimate of two months, then my colleague made a calculation. The applicant gave a date in June. Then my colleague looked at the papers before us and saw that the deceased was killed in October and then he said no, its four months and that's where the four months comes from. On the version of the applicant in his original version, he estimated a two month period so that is how I recall how this 4 months came into the picture.

MS VILAKAZI: With due respect Mr Chairman, I don't remember the applicant talking about two months. I remember him making reference to the month of June.

CHAIRPERSON: That's right and then he was asked to make an estimate.

MS VILAKAZI: Yes, so the two months ...

CHAIRPERSON: He made an estimate of two months and my colleague, Mr Lax, then referred him to the fact that it is four months bearing in mind that the other date is October.

MR LAX: Chair, the two months was two months after the meeting in June and I pointed out that that was impossible because he was killed four months after the meeting.

CHAIRPERSON: Yes, that's where the four months came in.

MR LAX: So the question is that the meeting took place, the meeting where the decision was taken, took place some time after the incident and the incident itself happened in June, on the applicant's version, so the issue of two months is neither here nor there, we were simply trying to pinpoint how long after the meeting this thing happened.

CHAIRPERSON: Yes, so in other words Ms Vilakazi, under those circumstances, it doesn't help to hang too much on four months or two months. This is where it came from. It came out in that discussion and not necessarily primarily from the applicant.

MS VILAKAZI: But neither here not there, Mr Chairman, with due respect, the decision was taken in June.

CHAIRPERSON: Well that's his estimate. That's an estimate. He also referred to two months so the point is that it doesn't help to hang too much on that argument. I mean we know on the testimony of the sister that the brother was there only for approximately two months, he wasn't there for 4 months.

MS VILAKAZI: Yes. Anyway, from the version of the sister, the incident at the taxi rank is an incident where she was with her brother and they were attacked by taxi operators for hitch-hiking and in that incident no-one was shot, there was not firing.

CHAIRPERSON: That's right.

MS VILAKAZI: Now if the version of the applicant is that the deceased was involved in a shooting incident at the taxi rank and that version is accepted,

CHAIRPERSON: Right.

MS VILAKAZI: Then it means that there is a dispute of fact because ...(intervention)

CHAIRPERSON: No the applicant says the deceased was alone, he wasn't with his sister. I think you asked him.

MS VILAKAZI: That very fact, Honourable Chairperson, with due respect means that the two witnesses differ.

CHAIRPERSON: If they are talking of the same incident. You follow, the question that arises, if they are talking of the same incident clearly there is a dispute of fact but the question is are they talking about the same incident and that's the question that I raised with Mr Makhubele.

MS VILAKAZI: Perhaps I should not canvass this point any further Honourable Chairperson.

CHAIRPERSON: Well if you don't have any further submissions on that then you can move on.

MS VILAKAZI: Okay. My submission to this Committee is that the whole incident was sparked off by an argument over a girlfriend and I'm saying that because that emanated from the version of the applicant himself.

CHAIRPERSON: Yes.

MS VILAKAZI: From the version of the sister, although the sister was not there when it started.

CHAIRPERSON: I'm with you on that submission.

MS VILAKAZI: And that is what was accepted by the court.

CHAIRPERSON: Yes, no it was. You can accept that in so far as the evidence before us is concerned what sparked off the attack on the deceased was an innocuous incident. It either had to do with some disagreement over a cigarette or some insult over a girl, or both. But the bottom line is, it's a very innocuous thing that seems to have nothing to do with politics.

MS VILAKAZI: That is my submission.

CHAIRPERSON: Yes, no, we're with you there.

MS VILAKAZI: That the whole incident arose out of nothing which had, out of something which had nothing to do with politics. My learned friend has made mention of the fact that it is strange that the members of the community would just look on when someone is attacked and I tend to agree with my learned friend in that regard. It would indeed be strange for a community that on the version of the applicant had been against the policeman, to just stand and look on while their target is being attacked.

CHAIRPERSON: Sorry, I've now forgotten, in what context did she refer to that? Did she refer to during the attack or after the attack when the sister arrived on the scene? In what context?

MS VILAKAZI: When the sister arrived at the scene.

CHAIRPERSON: At the time when the attack was already concluded, when the victim was busy dying.

MS VILAKAZI: Yes.

CHAIRPERSON: Yes, alright I'm with you.

MS VILAKAZI: So one would have expected, I mean from a community that is angry, that there are policemen who are part of the system that is oppressing them that they would just stand and look on while a policeman was there and he was still alive.

CHAIRPERSON: They don't call an ambulance.

MS VILAKAZI: They don't call an ambulance or they don't finish him off. Indeed that is strange and that points to the fact that it is inconceivable that the community would have been incensed against the policemen, that the community was against the policeman and I also want to submit to the Committee and my submission is subject to verification, the area in question was a rural area. Both witnesses have alluded to that fact. On the version of the sister to the deceased, it was a simple community which was not as politically inclined as one would find in the townships in and around Gauteng for instance or Pretoria or in other areas and what is subject to verification is the fact that the area of Kangwane itself is not known to have been an area where it was marked by political violence. Now I'm saying ...(intervention)

CHAIRPERSON: Were they happy to be saddled with the homeland situation? Were there not some of them that were against, the comrades particularly, were not some of them against the National South African government and against the entire system of homelands and so on or are you saying there was complete harmony within this homeland?

MR VILAKAZI: What I'm saying is, there was complete harmony, there were no political upheavals. I'm not saying that the community were happy with the government of the Republic of South Africa but within the area itself and I reiterate that that should be verified, that political upheavals were unknown in that particular area.

The applicant, it has been put as his version, joined the group when the attack on the deceased had already started. On his own version at the time when he went to join the group he did not know that his brother was involved or his brother had been injured, so he went there because he heard shots being fired and he went out on his own version, he heard shots being fired and because that was unusual in that area, he went out to investigate and saw this group of people. He went there and when he arrived there, he found that his brother had been injured and the deceased was attacked. My learned friend has made a submission that the line between malice and political motive is ...(indistinct). My submission is that there is no political motive at all. The applicant went there, he didn't know what was happening, he went there, he found that his brother was injured and his other relatives were busy attacking the deceased. The natural thing for him to do was to join in. So he joined in because if his family members were involved in that fracas, he didn't join in because what political motive was there at that particular time?

CHAIRPERSON: And what about the others? What about the other members of this group that attacked the deceased?

MS VILAKAZI: The version ...

CHAIRPERSON: Bearing in mind we only have the version of the applicant before us, the version before us, the evidence before us is to the effect that a large group of people attacked the deceased.

MS VILAKAZI: That is the version of the applicant.

CHAIRPERSON: Yes,that is also before us.

MS VILAKAZI: But the finding of the court is different. The finding of the court is that ...

CHAIRPERSON: Yes, that might be but the evidence before us, that's the version, that's the only version before us. It's not controverted, it's not contradicted by any other evidence.

MS VILAKAZI: Okay, I will ...

CHAIRPERSON: So on what basis do we reject that version? Assume we accept that version, there's a group of people that attacked this deceased, why do the others attack him?

MS VILAKAZI: Okay, if we accept that the group of people had also attacked the deceased, can we say that the applicant was not at all motivated to join in by the fact that his brother was there? Can that be excluded?

CHAIRPERSON: Possibly, it's possibly, it is a reasonable possibility. But then on the other hand Ms Vilakazi, can you exclude the reasonable possibility of a pre-existing antagonism, political antagonism? Isn't that as reasonably possible as the explanation that he saw his brother there and that spurred him on to get involved and to get to this assailant who was in any event persona non grata in terms of the political situation.

MR VILAKAZI: I didn't get you clearly, can you come again?

CHAIRPERSON: I've said that assume it is a reasonable possibility that the applicant was spurred by the fact that his brother was the victim of this attack from the deceased, but isn't it as reasonably possible that he was likewise at the same time motivated by the pre-existing political antagonism relating to the deceased? Is there enough before us to exclude the second possibility that I've referred to complete out of the picture and to find that this attack was entirely linked to a motive of revenge for the injury that his brother had sustained.

MR VILAKAZI: With regard to the political motivation at that particular time I think we have two versions on the table. The applicant has painted a picture of a political climate prevailing wherein the community was against policemen. The other version is the one given by the sister and for now I will not address whether or not the version of the sister should be accepted, I'll canvass that as a separate issue, but the other version is that the community was a simple community which was not politically active, so we have two versions.

CHAIRPERSON: Yes, but you must take it a step further. Take it a step further because the applicant says that not just the police in general, this specific policeman, there was a specific decision in respect of this particular policeman to kill him and they'd gone to the house and they'd broken the windows. He wasn't found there, so he focuses on this specific one and I think that is the potential difficulty that you must address. Under all those circumstances, in a nutshell, under all those circumstances, is the reasonable possibility that this attack also had to do with this pre-existing political antagonism relating to this deceased that the applicant refers to, can that be excluded?

MS VILAKAZI: Well if the version of the applicant is accepted, it cannot be excluded, if the version of the applicant is accepted then that cannot be excluded.

CHAIRPERSON: But isn't that the real question?

MS VILAKAZI: That is the - the question is whether the version of the applicant should be accepted.

CHAIRPERSON: Yes and I think that is perhaps where you must focus your argument.

MS VILAKAZI: Still then on that point of the community having taken a decision to attack the deceased, the applicant has given evidence to the effect that they went to the applicant's place, to the applicant's home, that's the word that he used, they went to the applicant's home and they did not find him there.

CHAIRPERSON: The deceased.

MS VILAKAZI: Of the deceased, sorry. They went to the deceased's home after the decision was taken to attack him then they went to the deceased's home and I asked him where that home is. He gave the address of number 1, Ntlazashe.

CHAIRPERSON: Which is the girlfriend's home.

MS VILAKAZI: Which is the girlfriend's home. The applicant was not staying at the girlfriend's home. The applicant was staying at the barracks. The sister had explained that and around that area the applicant even contradicted himself because at some stage he said when he initially started he said they did not find the deceased there then they attacked the house and the windows were broken, but then afterwards he said that he was not there, so I specifically asked him when he says he was not there, which specific area is he referring to and he said it was number 1 Ntlazashe.

CHAIRPERSON: Yes.

MS VILAKAZI: And then when Mr Lax made follow-up questions, he then said no, they did not find him.

CHAIRPERSON: Or they found him there and he was asked how does he reconcile that with his evidence, his earlier evidence that when they marched to the house they didn't find him there and he then explained that what he was trying to say was that where he usually was, he usually was at this particular place, that's how I understand the testimony that was given in that regard, but you're saying that he contradicted himself on this score?

MS VILAKAZI: Yes, because he said the applicant was staying at that house and he was not staying at that house, he was staying at the barracks.

CHAIRPERSON: Yes, I got that submission.

MS VILAKAZI: Can I just refer to my notes?

CHAIRPERSON: Yes, certainly.

MS VILAKAZI: Alright. The other thing relates to the fact that the applicant completed the application for amnesty himself and he does not dispute the fact that he completed the Swazi version of the application himself, but now he comes to the Hearing and he contradicts what he wrote in the application form. For instance, I referred him to the response that he gave to question number 9 as to whether orders were given to him. He tried to explain that, he said he did not explain that, he could not explain well that orders were given previously but in his form, in the form that he completed...(intervention)

CHAIRPERSON: Yes, he said there wasn't enough space.

MS VILAKAZI: There wasn't enough space but he had space to explain something that did not mean what he was trying to explain here.

CHAIRPERSON: Yes.

MS VILAKAZI: Now the question is, I mean the first word that he wrote, the question was, was there an order, I'm not saying it ...(indistinct) him but I think it's common knowledge what the question, but the question referred to whether there was an order or not. The first word that he writes is ... and I asked him does ... mean no and he said yes. If he had orders, why would he write no? Now he wanted to come up with a story that no, he did not have enough space. Why did he start by saying no when he meant yes?

CHAIRPERSON: I must say I'm also not clear about that evidence because as I understood his evidence he was saying that they were having a meeting where a decision was taken to kill this man, this deceased and then Ms Makhubele asked him, at that meeting who suggested and that's the word that she used, who suggested that this policeman should be killed? And then he mentioned, he said it was the chairman and he gave a name, the name is somewhere, so I'm not really sure in which direction the question of orders takes us in the light of all that sort of evidence. Is your submission that he at one stage testified that he had an order and he contradicted himself in the application form?

MS VILAKAZI: That is my submission exactly.

CHAIRPERSON: Alright, then I understand you.

MS VILAKAZI: Alright, the other thing related to the confusion that the applicant had with regard to the term "the government". He said that he belonged to the Inyanza Political Organisation. That political organisation was opposed to the oppression of the government and I then put it to him that the Inyanza Political Organisation was the government because it was the ruling party.

CHAIRPERSON: Yes, the government in Kangwane.

MS VILAKAZI: Yes and then he said: "No. When he says government he talks about the government of the boers."

CHAIRPERSON: Yes.

MS VILAKAZI: But then on a fuller question, when I asked him if they had problems, which government do they go to, he said the Kangwane government. The only reason why the applicant is confused about the term government or pretends to be confused is because if he indicates clearly what he understands by government, it would entirely throw out his claim that there were political upheavals in the area. I mean the party that he belonged to was the government in Kangwane and on his own version, if there were any complaints about non-delivery by the government, those complaints would be directed to the government, the Kangwane government.

CHAIRPERSON: Yes.

MS VILAKAZI: So the confusion that he wanted to claim about what is the government does not exist at all.

CHAIRPERSON: Are you submitting that there is a clear contradiction in that scenario?

MS VILAKAZI: That is my point exactly. The only reason why he wants to bring in the boer government is to paint a political conflict which did not exist in that area.

CHAIRPERSON: But were the political aspirations of people so limited? Were their political aspirations limited entirely to the homeland or did it also entail the entire South African situation, bearing in mind that, like his brother was working in Johannesburg, he says the brother came home every two months, or whatever it might be, so these people were not just trapped in Kangwane, they were working elsewhere, there was political conflict in centres like Johannesburg. It was affecting the entire country. It was spilling over into all sorts of areas so was it really so limited and localised? Were the aspirations just, in other words were they so happy with this homeland that they didn't think beyond the border of Kangwane so that when the applicant says: "Look, we were fighting the oppression of the boer government", is that so unheard of? Is that so extraordinary?

MR LAX: Chair can I intervene here, just on the same argument? There's a converse argument which is just as easy to make up and that is, if these police were Kangwane police, they weren't South African police, we heard on the evidence of the sister that they were Kangwane police, bearing the emblems of the same political organisation that the applicant belonged to. The policeman he killed was someone aligned to his own party. How does that then become political? So the argument goes both ways. This policeman wasn't part of the Pretoria government, he was part of the Kangwane government.

CHAIRPERSON: Yes, now the question that you address on that score, is whether it is decisive what the factual situation is because we don't really have the factual situation before us, we've heard about emblems but what was the perception of the applicant? The applicant says that as far as he's concerned, that policeman was employed by the South African government, that was his perception and that's where your focus should be, not so? Not really on the factual situation.

MS VILAKAZI: I seem to get lost now.

CHAIRPERSON: Isn't it enough to have a reasonable belief, a bona fide belief, for our purposes, for the purposes of these proceedings that we are dealing with?

MS VILAKAZI: A bona fide belief in - but Honourable Chairperson, ...

CHAIRPERSON: Yes but that's by the way only. Carry on with your argument.

MS VILAKAZI: Perhaps I should just respond in this fashion that the picture that the applicant painted was that he was a politically active person.

CHAIRPERSON: Yes.

MS VILAKAZI: So he cannot be assumed to have been ignorant of the fact that the police had the badge of Inyanza and that they were police of the Kangwane government.

CHAIRPERSON: Yes and he has this particular policeman, who seemed to be in conflict with the comrades.

MS VILAKAZI: My submission is that given the fact that the police were police of Kangwane and they belonged to this Inyanza which was the ruling party, the police could not have been the enemy of the people, so the fact that he was a policeman did not play a role.

CHAIRPERSON: He killed his own party's member.

MS VILAKAZI: Yes.

CHAIRPERSON: Alright, I've got the submission.

MS VILAKAZI: I don't know if there's anything else that - okay, I just wanted to address the question of the evidence on behalf of the family being given by the sister.

CHAIRPERSON: Yes.

MS VILAKAZI: I think the Committee should take cognisance of the fact that the proceedings in the hearings of this Committee are not like the proceedings in a court of law. The families are invited to the hearings and invariably it is the members of the family who are available at the hearings to give evidence on behalf of the family. Unless it can be said that the family was informed that they should bring witnesses, then the family cannot be blamed for giving evidence through a member of the family.

CHAIRPERSON: Yes.

MS VILAKAZI: So, I submit that the cautionary rules that normally apply in a court of law with regard to a witness who is related to a person that he's testifying on or about, should not apply in this particular matter and if the Committee is of the feeling that the evidence of Mrs Hlanga should be accepted at all or in any respect because of the fact that she is related to the deceased, then the family should be given an opportunity to call witnesses who would be neutral and who would make submissions on their behalf which would then be acceptable to the Committee.

CHAIRPERSON: No, I want to assure you in so far as I'm concerned, there would be absolutely no justification for such an approach at all to argue that simply because the witness is related to the deceased his or her testimony has got no weight. That would be totally untenable, so you can rest assured that that approach won't apply in this case.

The sister's evidence would be weighed up like the evidence of the applicant and where it is relevant, it will have a bearing on the merits of the application and an even-handed approach will be adopted in respect of the versions before us.

MS VILAKAZI: In conclusion I would, before I conclude just one point, at some stage Honourable Chairperson, you have made remarks to the fact that it really doesn't make sense that you know people would fight over a cigarette or a girlfriend to an extent that one would end up being killed. I think the Committee should be mindful of the fact that we are talking about a small rural community and that community should not be judged like a community in a township where there would be so many things that people could concern themselves with.

CHAIRPERSON: Some things are very valuable.

MS VILAKAZI: Exactly, that is my point, that is my point Chairperson. In conclusion I would say that the, I would submit that the applicant has not proved the political objective for the killing of the deceased, Christopher Mabika. The applicant was a member of the Inyanza Political organisation. The deceased was a police officer and by virtue of being a police officer, was also a member of Inyanza, so the deceased and the applicant belonged to the same organisation. No evidence has been put before this Committee to suggest that there was rivalry within the Inyanza Political Organisation itself which would then bring about the possibility that the deceased could have been on the opposite end of the organisation to the side in the same organisation that the applicant belonged to. The whole incident, I submit, arose out of the fact that a squabble relating to a girlfriend took place and the deceased was attacked in that squabble and the attackers of the deceased were members, or the predominant part of the attackers of the deceased were the members of the applicant's family. The applicant emerged at the scene at the time when the attack had already ensued and it was in the process of taking place and he then joined in. It is a reasonable inference that the applicant joined in that attack on the deceased because his brothers were involved, so he joined in to help his own fellowmen. If this Committee should find that the possibility of a political objective being existent in this matter, then that political objective has not been proved, so if it's there it exists only as a possibility and that being the case, it is my submission that the applicant has not discharged his onus of proving the political objective. Alternatively the applicant has not made a full disclosure of the facts which would present the political objective, not just as a possibility but as a fact. In that way I would conclude my argument.

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga have you got any submissions after all this?

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: You do have?

MS MTANGA: Yes.

CHAIRPERSON: Go ahead.

MS MTANGA IN ARGUMENT: Chairperson, it is my submission that this Committee should consider the evidence submitted in court that is that the reason that the deceased was killed was as a result of a fight over a girlfriend.

CHAIRPERSON: Yes, I think that is done.

MS MTANGA: And I also want to submit that in considering this, it must also be taken into account that accused number 2 testified to this effect before the court and accused number 2 is one of the brothers of the applicant here.

CHAIRPERSON: Yes, the applicant says he doesn't know what happened. He accepts that it's possible that they fought over a girl or a cigarette or whatever might be the case.

MS MTANGA: Further, Chairperson, when the applicant was giving evidence, it will appear on the record that he testified that at the time when he heard the shots, he was at home, he went outside and his evidence went on like this:

"Him" was the deceased.

CHAIRPERSON: The deceased.

MS MTANGA:

and then he went on to say:

and to me this is the reason why the deceased was killed. Politics never played any part here. I say this because if the Committee takes into cognisance the fact that according to the sister of the deceased, the deceased had only worked as a policeman for two months. It is, in my assessment of the situation it is highly unlikely that the deceased could have built such a reputation within that short space of time that would make him such a common enemy to the comrades to the point that he would be a subject of their meetings.

CHAIRPERSON: Yes Ms Vilakazi has warned us, she says that we must look at the context. She says that under these circumstances things take on different proportions and dimensions. I don't know from what perspective you're making your submission. Is it from a Kangwane perspective, or is it from what perspective?

MS MTANGA: Chairperson I'm making my perspective from the - based on the facts and evidence that's given before this Panel and I would like to refer the Committee to the fact that when the applicant said he was a member of the Inyanza Organisation which was the very ruling party in the area, it is a very strange occurrence that the very people who were running, he went against the people who were running the country whom he was voting for and this is a very strange situation which never occurred in the homelands. In the homelands, if I may make a reference to the homeland situation during this time, people who regarded the white government of South Africa as an enemy never associated themselves with the ruling parties in the homelands.

CHAIRPERSON: Except if the ruling parties are surrogates of the white government, but we've been told and Mr Enos Mabuza has actually gone to see Mr Oliver Tambo in London, so it seems as if this was not one of those scenarios where your ruling party in the homeland was just a surrogate for the white government in Pretoria.

MS MTANGA: Even in that context Chairperson, I don't understand how could the deceased, who was also a member of the Inyanza party ...

CHAIRPERSON: Not a member, he says that he was a supporter.

MS MTANGA: He was in service of the Inyanza party as a policeman.

CHAIRPERSON: No not in service of the party, she said that, we're talking about membership. She said that they were not members of a party, but one can assume they were supporters.

MS MTANGA: Yes, Chairperson and they were supporters who were serving the very party that the applicant belonged to and my understanding of that situation, it is highly unlikely that the deceased could have been a political opponent of the applicant in that context where the government is progressive or more lenient to the situation that was arising and that is the situation where the applicant alleges Mr Mabuza had gone to approach Mr Tambo.

CHAIRPERSON: Yes.

MS MTANGA: It is very unlikely that the very police of that government would be oppressing the activities of the comrades as he alleges.

CHAIRPERSON: Yes.

MS MTANGA: And then I also want to respond to the situation where you had asked whether is it likely for the community to stand and watched when a person is being attacked as it is alleged was the case here. I would like to refer the Panel to the judgment where it was pointed out by the judge that according to the evidence of Mr Zulu, Mr Zulu was threatened not to be involved when he tried to beg the applicant not to kill the deceased then he was threatened by the brother of the applicant that he would kill him himself.

CHAIRPERSON: The applicant says that Mr Zulu was lying. He was told what to say by the police. What is the value for our purposes to engage in that sort of issue? What possible weight could it have for our purposes what some or other witness said before some or other court at some or other stage when totally different circumstances prevail? We must look at what is before us and we must ask then, in the light of what is before us, is the version of the applicant so far-fetched, is it clearly so contradictory that he can't be believed? He's a clear liar. Or is it so improbable that it has to be rejected, that we can't possibly draw any conclusion on his evidence?

MS MTANGA: Chairperson, in my view, his evidence is far-fetched. It is far-fetched. The fact that the community just stood and became onlookers, it's a normal thing in the townships because if you get involved, people are scared that they'll get attacked by the same people. There were six people in the scene of the attack or five people in the scene of the attack.

CHAIRPERSON: You're again referring to the papers before us?

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: Yes. Well you've heard the version of ...(intervention)

MS MTANGA: And the evidence of the applicant.

CHAIRPERSON: Well you've heard the applicant's evidence.

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: On the size of the attackers, the group of attackers.

MS MTANGA: My submission Chairperson is that it should not be believed because if the Committee can just, the problem with this application, it lies very much, whatever consideration that would be made would be made based on the facts and if one looks at the facts here, after all the investigation that was carried out, six people were charged, four of them were from the Nkosi family and the two are said to have been related to them. So the issue of a political motive becomes very doubtful if you look at who finally got charged and convicted in this incident.

CHAIRPERSON: Yes, who knows who exercised the discretion? Who knows who did the investigation? Who knows under what circumstances they investigated the matter? Of what possible value can that be for us, the fact that one or two or ten or twelve people were charged? What does it matter? It doesn't help us.

MS MTANGA: But Chairperson, the fact that the people who were finally convicted, the majority of those people were family members and the victim, the initial cause of their action was the fact that their brother had been attacked. It points out to a personal squabble, not to a political offence that was committed in furthering some political organisation's objective.

CHAIRPERSON: Yes, the point is just that it doesn't help to draw or to submit that we are supposed to be attaching any particular weight to the fact that some people were charged in this matter, that doesn't help.

MS MTANGA: Chairperson, I also want to go back to my point that what could a new policeman within two months have done that could have built this reputation for him that he would be regarded as this enemy in that community. He had worked there for two months.

CHAIRPERSON: Well you heard the version of the applicant, what he's alleged to have done. And your submission is that that is improbable, it has to be rejected.

MS MTANGA: It is improbable Chairperson, in my submission.

CHAIRPERSON: I understand that.

MS MTANGA: Based on what I have said Chairperson, I would like to request the Committee not to grant amnesty to the applicant on the grounds that he had no political objective that he could achieve by killing the deceased.

CHAIRPERSON: Thank you Ms Mtanga. Have you got any response Ms Makhubele?

MS MAKHUBELE IN REPLY: Yes, Mr Chairman, I would like to respond. My two learned friends have touched on this matter which, when I look at the Act, may turn out to be the deciding factor, the context under which the act occurred. If this was a court of law I would say, rather I would ask the Panel to take judicial notice, but I don't know if I can say that here. My two learned friends here have ventured into the political situation at Kangwane at that time and one of them has even gone as far as to say that the ruling party, if it is, then if I may be allowed to add more in this confusion about the homelands.

CHAIRPERSON: You mean we've got speculation and submissions on the one hand and we've got the version of your client on the other hand?

MS MAKHUBELE: Yes, but then I don't know if the Commission at the end of the day to clarify this, is going to take judicial notice, but as far as I know, I'll give an example, with my homeland where I come from, that's ...

CHAIRPERSON: Oh, does it still exist?

MS MAKHUBELE: Well it doesn't, but that's why I say, if this was a court of law I would not be allowed to say this, but then understanding the purpose of this Commission that at the end of the day, you need to answer this question, the context, the political situation at the time.

CHAIRPERSON: Well, your learned friends have done it.

MS MAKHUBELE: Yes.

CHAIRPERSON: They've engaged in that luxury, why can't you do it?

MS MAKHUBELE: Thank you Mr Chairman. The ruling party then was called Simango, I think you may have heard about it although it's in the remote area. The police then were, in fact all government servants were forced to join that party but then immediately after the unbanning of the ANC, the very same leaders of that ruling party which was the government then, aligned themselves to the ANC which would be seen as an irony in the sense that there were homelands created by the South African government, then in the process the police were in a dilemma in the sense that they were to serve there, to do their duty, there were demonstrations, one would say that because the police were also part of that committee, part of that organisation, then for them they had to control the demonstrating masses and at the same time they were members of that organisation which is what has been explained by the applicant here that the antagonism about police in general stems from the fact that when people demonstrated, obviously they had to do their duty, they had to beat them up, they had to tear gas them, those very same police officers who were members of the ruling organisation, which organisation was now distancing itself from the apartheid system, that's why I put it to the applicant that: "You don't seem to be clued up about the period during transition", there was confusion. We also heard his evidence that the leader of the Inyanza, that's Inos Mabuza, that just shows that there was confusion there and then the police, because of their duties, they seemed to have been left out of what was happening, that is why there was this antagonism by the members of the community. That's my contribution as far as this political context or the political violence in the area is concerned and then my learned friends ...(intervention)

CHAIRPERSON: Some people were arguing that these so-called homeland structures were nothing more than creations of Pretoria. Pretoria was the big boss.

MS MAKHUBELE: Yes.

CHAIRPERSON: So this was just one of their sort of grand plans. People didn't see, people looked beyond these structures and they looked to the bigger picture.

MS MAKHUBELE: Yes, Mr Chairman. My learned friend went as far as to suggest that the applicant should know how those intricacies, I think the Commission, in your experience you have seen people who are not that clued up about, to an extent that one would explain there was this ANC, this is how it operated, like sometime you would get an MK cadre who would come and just explain things which are beyond the apprehension of this Committee, some people are just humble, they just knew that this apartheid system must be dismantled. As to the relationship between Inos Mabuza, suddenly he's no longer part of the apartheid, he's joined ANC, he's carrying them over, that creates confusion for the ordinary supporters. The Act says here it's not only a member but then it has made provision for a supporter. A supporter can be a person who, you just look at this group of people, you like what they're talking about, what they're doing, you align yourself with their actions without really knowing what the inside story is.

MR LAX: But isn't your client's evidence that he was a card carrying member, not a supporter?

MS MAKHUBELE: Yes.

MR LAX: So why are we talking about supporters? Your client's evidence is he was a card carrying member. He has all the knowledge about the party, he knows what his leader did, he knows that they joined the ANC, so are you imputing ignorance to him where there is none?

MS MAKHUBELE: No, I would advance the same argument because I asked him: "Do you know what was happening during the transition period?" which was the question which was confusing him as to how can you fight against your own organisation? My argument is on that basis that ...(intervention)

CHAIRPERSON: You're talking about his level of political skill?

MS MAKHUBELE: Yes, that's what my argument is all about.

CHAIRPERSON: Yes.

MS MAKHUBELE: And the other thing that I wanted to say was, to reply on was the question of the full disclosure. My learned friends have advanced argument that the trial record should be accepted. Even if it is accepted, the things, the sequence of events which happened at the trial is no different from what has been put before us. Nothing has been suggested about the factual situation which was not advanced at the trial. Even at the trial it was apparent that he was not there, he joined in at some other stage but what, which questions were not answered at the trial, I would say remain unanswered here and as I'm also happy if like the Chairman has pointed out on the acceptance of the evidence that was led in court, that the evidence that was led in court, if we apply the same standards like Ms Vilakazi has stated that because he joined in then, then we would be using, we would be in a criminal trial that because the argument with the deceased and his brother was about a cigarette or a girlfriend then it means that he had a common purpose that he was associating himself with the brother on that fight, there is no evidence here to say, to suggest that when he went there, he knew that it was his brother or what the fight was all about, he only learned about it later on, which he concedes.

CHAIRPERSON: They're submitting that the only reason why he participated in this attack was because he was very upset that his brother was injured and therefore he killed this person and so they're saying that your client's evidence should be rejected on the probabilities that there could have been this political animosity towards the deceased because he was only there for two months and it's not likely that he would have been able to whip up that sort of heavy sentiment against him that your client testified about, so that seems to be the thrust of their attack on your case, that we should reject your client's version.

MR LAX: Sorry, I just want to pick up on what you've just said. Are you saying your client didn't know that it was his brother lying there?

MS MAKHUBELE: When he left home.

MR LAX: No but when he got to the scene?

MS MAKHUBELE: When he got to the scene, he said he saw that it was his brother lying there.

MR LAX: Yes, so what difference does it make what he knew when he left home? All he did was he was inquisitive, he heard gunshots?

MS MAKHUBELE: Yes, my argument in that respect is that the only reason he joined in was because it was his brother, he was angry. That's why I say, if we look at that question alone and that's the only conclusion we're going to reach is that there is no political motive, that's why I conceded that there's a ...(indistinct) which needs to be looked at carefully, taking into account all the evidence, hence the question of the contexts, the political context in which this happened, would at least shed some light as to what led to the attack. The antagonism against the deceased or the police in general, that's why I said initially that maybe all those people went there, saw that this is the man that we have been looking for, he was rendered vulnerable by that incident, the last incident.

CHAIRPERSON: Instead of taking him to the police and laying a charge against him for a minor offence of having caused a graze to somebody's head, they went and they killed him.

MS MAKHUBELE: Yes, yes. That's my submission.

MR LAX: Just one last question for you. It's clear that at the time the accused arrived, he didn't know how serious the injury to his brother was, he thought it was very serious. He thought his brother might die and he said so, so in that context he thought: " Well here's the man who killed my brother, I'd better do something". Isn't that just as probable? Doesn't that increase the possibility that he was acting out of malice?

MS MAKHUBELE: I have already conceded to that, that's why I, in his evidence in chief I specifically led him through towards that direction, that the fact that it was your brother lying there, if it can be suggested that the only reason you acted was that and nothing else and that's the whole question which blurs this political motive. Even if a political motive was glaring, but that fact that it was his brother it would just blur everything.

CHAIRPERSON: It wouldn't necessarily blur everything, it would just be highly improbable to exclude it as a factor that had been bearing on his actions. The more important question is, do you then exclude the other possibility that his evidence raises? That is the real question in this matter. There's no doubt that it started off over some innocuous issue and that it is just highly probable that the fact that his brother was involved in this would have weighed with him, but the question is, was that the sole reason for killing and if, as your colleagues submit that was the only possible reasonable explanation for your client's participation in the matter then of course you know it's a source of difficulty.

MS MAKHUBELE: Yes, there's this analogy I wanted to draw to their suggestion that in two months he wouldn't have done any damage, it's like an argument of, say you are in a maintenance court and here's this man, he disputes paternity and he says: "No, but I only slept with that woman once, how can it be?"

CHAIRPERSON: I knew her for a week.

MS MAKHUBELE: Yes, I knew her for a week. That's the same argument.

CHAIRPERSON: You can do the same damage in a week or in a day or in a night or in a month or in a year. I take your point.

MS MAKHUBELE: Thank you.

MR SIBANYONI: Can I try to exclude or eliminate one possible confusion as to what was the cause of the quarrel? I would like to ask you about the question of the cigarette whether you are aware of the African way of engaging a person in a discussion by asking that person for a cigarette, in Xhosa they say you ask that person for "..."(ethnic) when in actual fact you are not asking for a cigarette, either you are going to be confronting that person if he says I don't have "..."(ethnic) you say now can you give me matches? And if he says: "I don't have matches" then gradually you come to the actual point why you want to talk to that person. I don't know where you are aware of that I would say manner or custom or way of life?

MS MAKHUBELE: I do.

MR SIBANYONI: You do?

MS MAKHUBELE: Yes.

CHAIRPERSON: So you're saying that is a relevant consideration in this matter?

MS MAKHUBELE: Well I do, but under the circumstances, taking into account if we look at it from that point of view, the cultural point of view, I would say that the respect that people have for each other, you wouldn't start that kind of discussion if you find a woman with another man, so although it does happen, but ...

CHAIRPERSON: Is that not possibly a way of opening up an argument over a woman? I don't want to speculate.

MS MAKHUBELE: Well I couldn't say really.

CHAIRPERSON: Yes, but that is an interesting point that my colleague has now raised. Yes. Have you got any further submissions?

MS MAKHUBELE: Yes. I have nothing further.

CHAIRPERSON: Thank you very much. Yes, we have concluded the formal part of these proceedings. As you obviously have noted from our debates and our discussions, the matter requires some attention and some thought and often the reason for the debate is exactly the doubts that sometimes occur in matters of this nature and it helps to be exchanging views. In that regard it doesn't reflect that a particular decision has been taken or a particular strong attitude is conveyed or communicated, it is simply, it is the very opposite, it is simply a sign of trying to do justice to the matter, trying to get to the truth and trying to ensure that we fully understand what it is that we have to consider, so we will have to reserve the decision in this matter. We are extremely grateful to the lawyers for their assistance in this matter and for the useful inputs that they have made and submissions they've made in this matter. We will consider the matter, endeavour to come to a decision as soon as we can and we will then notify all of the parties once that decision is available. We'll then reserve the decision in the circumstances and just again thank you very much Mesdames Makhubele, Vilakazi and Mtanga for your assistance.

We have yet again unfortunately gone way, way beyond normal sitting hours. We realise that there is inconvenience that goes with that and we also understand that there are people that must travel some distance still tonight. We appreciate your being here, for your patience and we wish you a safe journey back home.

We will adjourn the proceedings at this stage and we will reconvene tomorrow morning at 9 o'clock. Thank you. We're adjourned.