SIFISO CEDRIC SBISI: (s.u.o.)

CHAIRPERSON: Good morning everybody, I apologise for the delayed start but there were all sorts of problems, including a motor accident on the freeway which caused people to be delayed. When we finished yesterday we were still busy with the application of Mr Sifiso Cedric Sbisi, and we'll now continue with that application and then we'll proceed to the application of Mr Vivian Bhani Ngcobo. When we finished yesterday we were at the stage to ask Mr Dehal, who appears for the applicant, whether he has any re-examination. Mr Dehal.

RE-EXAMINATION BY MR DEHAL: Thank you, Mr Chairperson.

Mr Sbisi, I want to firstly deal with paragraph 21, I think it is, yes, 21 on page 6 of your statement, Exhibit A, wherein you deal for the very first time with the count relating to Kamanati Sithole. Now it seems to me, or it is so clear that you did not ever mention this before, especially in your amnesty application, can you please tell this Committee why.

MR SBISI: When the Investigator came to me in prison in Johannesburg, he didn't explain to me that I was supposed to reveal everything that happened at Bekuzulu area. When I arrived in Pietermaritzburg Prison, that was the first time I've spoken to the attorney and then my attorney said to me I'm supposed to reveal everything what happened in that area.

CHAIRPERSON: Yes, but didn't you only see the Investigator - is this the Investigator who took this affidavit which appears on page 18? Wasn't that only this month as well?

MR SBISI: Yes, I'm referring to the person who took the statement from me, the statement that appears on page 18.

CHAIRPERSON: Yes, but I think what Mr Dehal is asking you is - because even if it was only mentioned for the first time this month, it would still be far too late. Is there any particular reason why you didn't mention it when you were filling in your application form?

MR SBISI: To be honest, I didn't have more information and knowledge about filling the application, I only gained knowledge after my application had been sent to Cape Town.

MR DEHAL: Are you saying, Mr Sbisi, correct me if I'm wrong, that you did not understand the need for full disclosure, especially in regard to acts for which you were not charged, arrested or convicted or any of those, until you met Ms Kooverjee, Monday this week, who told you that you must speak about everything in your life for which you want to seek amnesty, that means make full disclosure?

MR SBISI: Yes, it is so.

MR DEHAL: You were cross-examined yesterday about Mbongwa the man, sometimes referred to as the boy, then referred to as 15 years, who was killed by you or at your instance. Now you said that ...(intervention)

CHAIRPERSON: Sorry, who wasn't killed, who was targeted.

MR DEHAL: Oh sorry, yes.

CHAIRPERSON: Yes, the sister was killed.

MR DEHAL: Thank you, I appreciate that.

Who was targeted by you. You mentioned that you saw him as being 24 years or thereabouts of age and it was said to you that he was about 15, you did not dispute that but you mentioned that he was tall and big in size. Now I'm not asking you for his age, I want to ask you to describe him and to tell us what led you to believe that he was not 15 but 24 or thereabouts, in age, sorry.

MR SBISI: The reason I estimated his age who is 24, it is because of his height and also of his weight and also he had a beard, that's why I estimated it as 24.

MR DEHAL: You were also told under cross-examination that Mbongwa, this man Mbongwa was ever politically involved or motivated and that your killing of him must therefore have been outside the parlance of political actions. Now would you like to tell us why you thought that he was politically involved, motivated?

MR SBISI: The reason we targeted him was because he was implicated and he participated in the killings in Bekuzulu area, and also he was an informer to the ZP Police, that's why we decided that he was a legitimate target.

MR MALAN: May I just ask you, did you have any information that he was implicating you in the killing on Xmas day?

CHAIRPERSON: No-one was killed on Xmas day, the attack Mr Radebe, the Councillor to the Chief, the Assistant to the Chief.

MR MALAN: Did you have any information that he was implicating you in that incident?

MR SBISI: Would you please repeat the question for me, I didn't quite understand.

MR MALAN: You say that the Mbongwa boy that was your target, was an informer to the ZP Police, what was he informing them on, was he informing them on your involvement on the attack on Radebe on Xmas day?

MR SBISI: That one as well and also that he had informed to the ZPs about other members who had firearms and the ZPs will come to that person and take those guns from that person and when they arrived there they had full knowledge as to what type of a firearm that person possessed.

MR MALAN: Thank you.

MR DEHAL: Thank you, Sir.

Mr Sbisi, how did it come about that you understood Mr Mbongwa as being politically active in the area as a part of the IFP, was that based on your intelligence gathering from the other comrades within your unit or did you personally go about with the reconnaissance and intelligence gathering?

MR MALAN: Or maybe some other reason, Mr Dehal.

MR DEHAL: Yes, or perhaps any other reason?

MR SBISI: Our comrades had that knowledge. One time police came to my house and they searched my house and a certain girl who is my neighbour told me that he was the one who informed the police and also they've seen him with the police.

MR DEHAL: Thank you. And lastly, when you established on the morning of the day after ...(intervention)

MR MALAN: May I interrupt you?

When did this incident happen when the police came to your home and when the girl, your neighbour, the girl told you that this was the person who informed the police and was with the police, when did that happen?

MR SBISI: In 1992, towards the end of 1992, the police arrived at home in November 1992.

MR MALAN: So you had - more than a year you had knowledge that this person was an informer, that he was informing on you and you only target him in January '94, why?

MR SBISI: It is because at that time towards the end of 1992, the IFP was strong, it wasn't easy for us to attack the IFP and also there were areas where we couldn't go. We launched attacks afterwards and they moved away and we took over that place or that area.

MR MALAN: Thank you, Mr Dehal.

MR DEHAL: Thank you, Sir.

Mr Sbisi, finally, when you established on the morning of the day after that your target Mbongwa was not eliminated, but that his sister Pumzile was rather eliminated, that was obviously a mistake to you, did you discuss that with those unit members of your MK Unit, and what did you do about it?

MR SBISI: When I discovered that the person who was injured was not the targeted one, we discussed about this and we decided to remove that person who was responsible for killing the girl, because we realised that he was going to put the unit in danger.

MR DEHAL: Are you saying that he was then no longer part of the unit? Did you remove him from the unit?

MR SBISI: Yes, we removed him as an SDU member but he continued to be a member of the ANC.

MR DEHAL: There's just one other aspect that I've just remembered, the Chairperson had asked you by analogy about IFP members who may own a shop and if they were active in the area against the ANC, what you would have done and there was some talk about you would have robbed them, do you remember that?

MR SBISI: Yes, I do remember.

MR DEHAL: Would you have robbed his shop or would you have acted against him as the target?

MR SBISI: We would not have robbed his shop but we could have attacked him.

MR DEHAL: That is all, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Dehal. Adv Sandi, do you have any questions you'd like to put to the applicant?

ADV SANDI: No, thank you Chair, I don't have questions.

CHAIRPERSON: Mr Malan?

MR MALAN: I have no questions, thank you, Chair.

CHAIRPERSON: Just a couple of matters, Mr Sbisi, just to clear up here. In your statement which is Exhibit A, in paragraph 11 you say that on Xmas day, 25th of December 1993, you together with a few members of the ANC were seated at the bottle store and then Jabulani Radebe's son entered being in possession of a spear and a home-made gun and then he was disarmed and he was assaulted and stabbed. That's what you say in that statement and that leaves me with the distinct impression that you were present when all this happened because you said you were there. Then if you take a look on page 18 of the bundle, that's the affidavit you made to the TRC Investigator, it's about two-thirds of the way down, you say -

What is the situation with the stabbing of Radebe's son, were you there or weren't you there? Have you found it, Mr Dehal?

MR DEHAL: No, sorry, I can't seem to find it. I found a paragraph ...(indistinct - no microphone)

CHAIRPERSON: It's page 18 and you'll see that there's some highlighters which have come out having exactly the opposite effect of highlighting, they're in fact blocking out certain names and then immediately under the long one it says -

Do you see that?

MR DEHAL: Yes, indeed.

CHAIRPERSON: And then he says -

... whereas paragraph 11 gives the clear impression that you were, and I'm asking what is the situation.

MR DEHAL: Thank you, I see that, I'm indebted to you.

MR SBISI: The reason why I said I was not present is that I was on the scene, I was inside the bar but this incident happened outside the bar because when I went out of the bar they had already disarmed him, but I was present in the vicinity because I was inside the bar and the incident took place outside the bar, although on the same premises.

CHAIRPERSON: Yes. Then this question, you've said that on the night when the Mbongwa's house was attacked, you said you were the Commander of the SDU, that you were the only one who had received any form of training and the other members hadn't received any training, about six of them were then sent, were armed with inter alia, AK47 rifles and petrol bombs to go to the Mbongwa house to kill the eldest son of that family, by taking him out of the house and shooting him, now you say you did not go because you were guarding and you wanted to rest and you said your guarding amounted to half-an-hour of walking around the block and then you waited for them to come. Now from what I gather, this would be your first, when I say "your" I mean the SDU's first operation, is that not so? It would seem that the occurrence of Xmas day, when Mr Radebe was necklaced, wasn't really an operation, it was something that happened unplanned, spontaneously, it was an incident rather than a planned operation, so was the Mbongwa attack the first operation of the SDU under your command?

MR SBISI: It was the first mission that we were able to sit and plan around. That was the reason that the IFP was very strong.

CHAIRPERSON: Yes. Now you see this is what I've got a bit of difficulty with, you were the only trained person, you are the Commander, the others are untrained, the IFP are stronger than you in the area and yet you don't go on the mission, you walk around the block for half-an-hour. Why didn't you as the leader insist on playing, probably the main role in the operation, seeing it was your first one and you're dealing with untrained people and you're the only trained person? It doesn't seem to me to be the thing that leaders are made of, to conduct an operation like that.

MR SBISI: The reason why I did not go out was because I was also being sought after by the police and even when my comrades were arrested they'd be assaulted and they'd be questioned about my whereabouts.

CHAIRPERSON: Yes, but if you're being sought by the police - so you're saying that is the reason why you didn't go? I mean surely when you go on an operation of that nature, armed with AK47s, going to kill somebody, you're not expecting to be arrested by police, one wouldn't think that the fact that the police were looking for you would be sufficient cause not to lead the operation. I mean the police were looking for all operatives.

MR SBISI: I express the reason yesterday because we did have a policy with regards to guard duty, it was a policy that if I had been on guard duty the previous day it was then my turn to rest, but because of the reason that we were under attack all day and night and the police were also on our tail, I did not sleep because I was keeping guard on the area that I was in at that time when they went out.

CHAIRPERSON: Yes, and then if you take a look at page 19 of the statement right in the middle -

What do you mean by that because we've heard that the first incident was on December, on Xmas day and the second one was on the 23rd of January? But you say you were arrested in January after about two months, after about two months of what?

MR SBISI: Please repeat that question.

CHAIRPERSON: You say that - we know that the attack on the Mbongwa's house took place on 20-something January, 23rd of January or the 21st, I'm not quite sure, I can't remember, but in 20-something January, that was the attack on the Mbongwa's house, we know that the attack on Mr Radebe took place on the 25th of December 1993 and here you say -

Now if you were arrested in January 1994, it couldn't have been longer than a week or ten days after the Mbongwa house or a month after the attack of Radebe, so I want to know what is this "after about two months", what does that refer to? What does the "two months" refer to?

Perhaps if you could just show him that, Mr Dehal.

I just want to know why you said "after about two months" you were arrested, if it was in January 1994, two months before January 1994 is November 1993, what happened in November 1993, if anything? Or is that just a mistake?

MR SBISI: I say that it was a mistake.

CHAIRPERSON: And then something else that I find a bit confusing here. In the same paragraph, this is after your arrest, you and some of your comrades were arrested, this is what you say in this statement -

Now we know that you were the only one who was convicted, now you say here it was decided that you would take the blame, but in the trial you denied everything, you said you weren't even there, you know nothing, so how can you be taking the blame if you deny that you ever did anything?

MR SBISI: I denied the charges in court because I did not have confidence in the judge and in the investigator himself because there were many things that were presented in court that were not true.

CHAIRPERSON: No, I understand that, that's not what I'm asking, we in these sort of hearings always where the applicant has denied it in court, gives a reason like you've given the reason, they didn't trust the court and obviously you didn't want to get convicted, so you come up with a story, but here you say you and your comrades decided amongst yourselves that you would take the blame. Now how can you decide that if you deny anything, how can you agree to take the blame and then not take the blame? You say here -

And now you've all been arrested, it's not for anybody to decide well, I've been arrested on a murder charge, let's agree between us that you three don't be charged, you haven't got that power to decide not be charged, you're all charged but you between you agree that you're going to carry the blame. I just can't see how that could have happened, what did you mean by that? - especially if you didn't admit to doing that. If you had went to court and said yes, I did it, the others weren't there, then I could understand carrying the blame, but that didn't happen.

MR SBISI: I can state two reasons for that. The first one is that I volunteered to take all the blame. When I was arrested there was still a lot of violence, so it wouldn't have been a good idea for all of us to be arrested because then there would be no-one to protect the community. The second reason was that I thought it would make the case go easier in court.

CHAIRPERSON: Yes, and then also on that same page, the last paragraph - well before I get to that, if take a look at your application for amnesty, the actual application form, this is on page 16 on your application form for amnesty, you say - and I'm reading from the translated version, paragraph 13(a) -

Right, that's what you put on your application form. Then in the statement, at page 19 of the papers, you say, last paragraph -

That's referring to that paragraph 13 that I've just read, now this is the reason -

There you give the clear impression that the only role you played or that you didn't actually play a role, you were merely present and did nothing else. That's explaining why you said -

Yet, you come here at this hearing and say it was you who forced him to drink petrol, it was you who filled the tyre with petrol and it was you who set the tyre alight. Now how do you reconcile this statement on the last paragraph of page 19, with your evidence here?

MS THABETHE: Sorry, Mr Chair, I've just realised it's a wrong translation, I don't know.

CHAIRPERSON: Sorry, what's the wrong translation, Ms Thabethe?

MS THABETHE: Page 16, 13(a).

CHAIRPERSON: What should the correct translation be, Ms Thabethe?

MS THABETHE: It should read - ...(intervention)

CHAIRPERSON: I'll tell you what, let's ask the translators to interpret. Do the translators have a copy of the bundle?

INTERPRETER: Yes, we do.

CHAIRPERSON: If you could please turn to page 9, paragraph 13(a) and if you could just read out the hand-written words, if you could translate the hand-written words there please.

INTERPRETER: It says -

CHAIRPERSON: Well that's a substantially different translation.

MS THABETHE: Yes.

MR DEHAL: I didn't quite get the full translation, sorry, Mr Chair.

CHAIRPERSON: He says - sorry, if you could just read that again please.

INTERPRETER: He says - it says -

CHAIRPERSON: Yes, but then why did you say this in paragraph - thank you very much. Why did you say this in paragraph 19 -

... when we knew that you played the central role?

MR SBISI: With regards to that I was of the opinion that I would explain everything in person when I appear before the Committee, because as I mentioned before I did not have an advisor who advised me on how to render the statement, I only mentioned what I thought was the most important things.

CHAIRPERSON: Thank you. Mr Dehal, do you have ...(intervention)

MR MALAN: Chair, with your permission, following an answer to a question that you put to the applicant.

Mr Sbisi, you responded to a question of the Chair on the incident where Jabulani Radebe, when his son came into the bottle store. You say that the incident happened outside, you did not see it, you were inside. Did I hear you correctly?

MR SBISI: I was inside and I only came out when I heard a noise from the outside.

MR MALAN: Now if you would look at your statement, Annexure A, page 11 - paragraph 11 on page 3, in the fourth line you say -

You're talking about yourself -

... and I assume that's still in the bar.

This description all happens inside the bar. Where did it happen?

MR SBISI: It took place outside the bar.

MR MALAN: Can you explain to us why you made this statement in paragraph 11?

MR SBISI: It means I did not explain it well. What I meant was that it happened inside the premises of the bottle store.

MR MALAN: Thank you, Chairman.

CHAIRPERSON: Yes, sorry, just one very small point. I take it that Jabulani Radebe and Mpikayi Pele Radebe, is that the same person? Let's just ask him. It's the same person is it?

MR SBISI: Yes, it is.

CHAIRPERSON: Thank you. Mr Dehal, do you have any questions arising out of questions that have been put by Members of the Panel?

MR DEHAL: None thank you, Chair.

CHAIRPERSON: Mr Panday, do you have any questions arising?

FURTHER CROSS-EXAMINATION BY MR PANDAY: Yes, I do, just one question.

Mr Sbisi, when your attorney was re-examining you and the Committee Member put a question to you "When did the Mbongwa son inform the police about you?", you told the Committee Member that in 1992 you were informed that he informed the police or the ZP. Now Mr Sbisi, I'm going to refer you to page 19 of the bundle of documents, on the second paragraph, sorry it's page 18 on the first paragraph, where you mention that the violence in the area started in 1993, between the ANC and the IFP. Now based on this statement, isn't it correct that there was no problems in 1992 if the violence only started in 1993 in the area?

MR SBISI: As from 1992 there was conflict, but at that time we did not use weapons, it was just verbal and physical fighting that was going on, it was only in 1993 that firearms and other such weapons were used.

MR PANDAY: Then for what reason would this Mbongwa boy have to inform the police about weapons and about you in 1992?

MR SBISI: When the police arrived they questioned me on whether I knew this Mbongwa boy, they informed me that he had alleged that I had pointed a firearm at him and that was the reason why they had come to my home to search my home, because of that information from him that I kept an arms cache at my home.

MR PANDAY: Sorry, Mr Sbisi, isn't it also correct in your evidence that you mentioned that the firearms were always hidden, so that the police would not find firearms on the Self Defence members?

MR MALAN: I think he said after the attack they went and hid the firearms.

MR PANDAY: Yes. If I may rephrase the question, Mr Member.

Tell me, were the firearms that you had, were they always hidden?

MR SBISI: Yes, we always hid them.

MR PANDAY: Thank you, Mr Chairman.

CHAIRPERSON: Ms Thabethe, any questions arising?

FURTHER CROSS-EXAMINATION BY MS THABETHE: Yes, Mr Chair, just one. It's with regard to the incident of Kamanati Sithole.

When you were asked a question as to why you had included this offence only yesterday, you said that because the TRC official who came to you did not explain properly or you did not understand ...(intervention)

CHAIRPERSON: No, he said that, but then it was pointed out to him that he was only approached this month by the TRC official and then when asked why he did not include it when he completed his form, he said he just didn't have the knowledge and he only included incidents in respect of which he was charged and convicted.

MS THABETHE: Yes, thank you, Mr Chair, I'm indebted to you.

My question is, in the statement that was done by the TRC official, on page 18, it's paragraph, it's line 9 I think, line number 9, it reads as follows -

CHAIRPERSON: Yes, now I presume the question is: Why do you say that, why do you say that the only operation that you were actually involved in was Radebe's, when here in Exhibit A you say that you also were involved in the killing of Sithole?

MR SBISI: It is because as I mentioned before, I was not clear as to what incidents would be permitted for inclusion in the application, it was only yesterday when I consulted that I was informed that I should divulge everything that happened.

MS THABETHE: Was this statement a response to a question as to what other operations you were involved in? And then your answer was no, the only operation you were involved in was attacking Mpikayi Pele Radebe.

MR SBISI: The only reason why I mentioned only this operation is because even in my application form I have mentioned only one incident. As I have already mentioned, I did not have a person assisting me ...(intervention)

MS THABETHE: Weren't you asked a question "What operations were you involved in as an SDU member?" All the operations.

MR SBISI: Are you referring to the person I saw on Monday or the person in Johannesburg?

MS THABETHE: The one from Johannesburg.

MR SBISI: No, she didn't ask me.

MS THABETHE: Thank you, Mr Chair.

CHAIRPERSON: Sorry just one point that's been brought to my attention. This statement that appears on page 18, did you sign it before a Commissioner of Oaths?

MR SBISI: ...(no English interpretation)

CHAIRPERSON: Do you know? If you take a look at page 20, it would ...(intervention)

MR SBISI: No, I did not sign.

CHAIRPERSON: Okay, thank you.

ADV SANDI: Sorry, just one thing.

This person who took this statement from you, did she read it back to you to confirm that what is contained in this statement is exactly what you had said to her? Did she read it for you?

MR SBISI: She would ask questions and I would respond to such. After she had finished she said she would wait for a fax that would inform me as to when I would be appearing here.

MS THABETHE: Sorry, Mr Chair, can I interpose here? I think initially he was asked that question and he said there were things that were signed by him. What I'm suspecting, I'll confirm with Mpumelo(?) Vilakazi, because she's our Investigator, whether there isn't a hand-written statement and this not is not a typed one, but still he did confirm it.

CHAIRPERSON: He did confirm the correctness of the contents in any event in his evidence. Thank you.

Mr Sbisi, that then concludes your evidence, thank you.

MR DEHAL: Thank you. Mr Chairperson ...(intervention)

CHAIRPERSON: Are you calling any further witnesses?

MR DEHAL: No, there are none.

CHAIRPERSON: Mr Panday, are you calling any witnesses?

MR PANDAY: No, Mr Chairman.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: No, Mr Chair.

CHAIRPERSON: Mr Dehal?

MR DEHAL IN ARGUMENT: Thank you, Sir.

It is my respectful submission that - or firstly let's deal with the number of counts were are dealing with. One deal here with those three counts, the Mbongwa count and then of course the Radebe count, the 25th of December '93 and the Kamanati Sithole count.

I would like to deal with my submissions relative to the last count and why it ought to be included. Firstly, in terms of time constraints, it does preclude this Committee sitting as an Amnesty Committee, from not considering it because it falls within the purview of the time period within which it can well be considered, it is before the cut-off period.

CHAIRPERSON: Well it happened between 1960 and May the 10th 1994.

MR DEHAL: Indeed, thank you.

Mr Chairperson and Honourable Members, it is my respectful submission that within the broader context of ...(intervention)

CHAIRPERSON: But the thing is the applications for amnesty must be made, had to be made by the 30th of September 1997, and now he's made application for the killing of Mr Sithole, on the 30th of November 1999.

MR DEHAL: Correct. I'm fully alive to those problems, Mr Chairman, my only difficulty is, if within the broader context of the Act as indeed correctly alluded to by yourself, Chair, yesterday, I do not think that the Act restrains this Committee from considering applications for amnesty. If we use the two analogies in the first case, where a person calls in here and talks about firearms and it turns out that he was in possession of an illegal or unlicensed firearm, that count per se not having been included in his original application for amnesty, it is not precluding him at this stage from dealing with it, and it is known that Amnesty Committees of this sort and various Committees throughout the country have granted amnesty for those and understood those. I agree against this application that this however a completely different ball game, this is an application completely different from the other two counts, this indeed is a separate count.

Now what I'd submit respectfully the Committee ought to take into consideration are the following. We are dealing here with no so intelligent an applicant, a person who, whilst he may well have featured prominently in political parlance and circles, he's not one who is au fait with the applications for amnesty, the parameters within which it falls, and says honestly that when on Monday he consulted with Ms Kooverjee, Ms Kooverjee, the other Director from our offices, he was told that he must make full disclosure, he was told that he must talk about every incident in his life, he was told that inasmuch as he was not convicted of incidents he must deal with them. He said that is why he dealt with it. Now the corollary of that submission is simply this, if he did not deal with that aspect, none of us would have known about it and I dare say not even Mr Panday would have been able to sit here and cross-examine Mr Sbisi as to this incident, for the purposes of showing lack of full disclosure.

CHAIRPERSON: Yes, but then also on the other hand, Mr Panday was not representing the family of the Sithole's because no-one knew about it until the applicant came to the witness box.

MR DEHAL: Yes, I agree and then there are additional difficulties of that nature. Ms Thabethe, the Evidence Leader, did not have the opportunity to bring people before us. We therefore have not tested whether this application, within the context of that logic, is indeed an acceptable application, an acceptable count. Now those are the difficulties no doubt. But my submission are that it does not in the nature of things, preclude this Committee from considering this count as a count for amnesty. There are difficulties, but I submit they are not insurmountable. The difficulties point at what possibly would have occurred procedurally, namely in the nature of the Evidence Leader bringing persons here, possibly a lawyer being appointed for the victims and Mr Sbisi then being questioned thereon per se the application within the ambit, within the context of the political lines, this deals with a political matter, Kamanati Sithole as an IFP person and Mr Sbisi as an ANC/MK operative who dealt with him as a legitimate target.

Mr Chair, apart from that, looking broadly at all three counts, I respectfully submit that Section 20(1) of the Act, of the Promotion of National Unity and Reconciliation Act 34/95, has set out the basis on which amnesty ought to be granted and my submission is that Mr Sbisi's application on all three counts falls within the realm of Section 20(1), but it must be considered that it is only one of these three counts that is being objected to, the other two counts are not being objected to, the count of the necklacing of the 25th of December '93 is not being objected to, there are no family members here, there's no lawyer here and indeed the same applies to Kamanati Sithole.

CHAIRPERSON: That's understandably so, not so?

MR DEHAL: Indeed.

CHAIRPERSON: ... in the Sithole incident.

MR DEHAL: As to the objection, Chair, it is as I see it premised on two grounds. It would appear to be premised on a lack of full disclosure, inasmuch as that I submit was not established, it appears more strongly to be premised on the lack of political lineage.

Now as to lack of full disclosure, my learned colleague, Mr Panday, had dealt at some length with cross-examination on activities that Mr Sbisi might well have been involved in and endeavoured to embark on a line to establish whether Mr Sbisi was involved in other incidents which were not disclosed within Exhibit A. It is clear that Mr Sbisi had kept to his statement, he did not concede that there were other acts, it did not appear at all clear that there were other acts which are not brought before this Committee, in fact on the contrary, the very inclusion of the Kamanati incident negates any argument as to the absence of full disclosure. Even if this Committee were not to consider the Kamanati Sithole incident for the purposes of amnesty on that count, that disclosure in itself, the reference to that act in itself supports irrevocably in my respectful submission, the contention that there is full disclosure, otherwise there would have been no need for him to have mentioned it.

MR MALAN: Mr Dehal, the Act stipulates that full disclosure must be made on each incident which amnesty is sought for, it's not compelling any applicant to disclose any other violation that he has committed which he's not applying amnesty for, so that line of argument does not hold water. The question is whether he has made full disclosure relevant to the incidents and his acts for which he applied for amnesty. So you need only to argue that.

MR DEHAL: Thank you, Sir.

It then - sorry, broadly speaking, if one has regard to that logic, full disclosure on each of the acts has indeed been made.

On the count relating to the 23rd January '94 count, the Mbongwa incident, the one difficulty that seems to surface is the fact that the mother of that house was regarded by the judge as a credible witness and Mr Panday's argument it seems, premised broadly on the basis that if she were credible and adduced testimony to the effect that Sbisi was within the house, then how can it now be said that he was not.

There are two broad arguments against that, the one is, that was a trial, we are not within that trial, we do not have the transcript before us. Inasmuch as the Honourable Judge had accepted her as a credible witness, we do not know to what extent Mr Sbisi was then represented, to what extent the lady of the house, Emily, was cross-examined, to what extent these aspects relative to Sbisi's presence in the house and the absence in the house were dealt with and whether that aspect, if dealt with at all, led to the conclusion and the finding of credence in her favour.

And the second broader aspect is this, one is dealing here in hindsight with a transcript which we do not have before us, we cannot now categorically simply accept the judgment and the findings as drawing inferences and conclusions that suit us.

The other argument, Mr Chair, is this, why would Mr Sbisi come here to this Amnesty Committee today and say he was not in the house, he could well easily have said "I went to the house, I was there, I caused the act, in fact I shot the girl and I killed her. It was dark, there was no lights, I took it for granted the figure in front of me was the boy I intended to kill and not the girl, I made a mistake". Now he could easily have said that, nobody would have gainsaid that, it would have fallen in line with the testimony in the trial of the State witnesses there and it would have negated, removed the need for the cross-examination, it would have given a different light to it, but he came in truthfully to say it as he knows.

Whilst the fact that he was absent in itself draws adverse inferences, and I concede that, the ring of truth in persisting that he was absent when there is no tangible reason as to why he shouldn't say the contrary ...(intervention)

CHAIRPERSON: You know there might be, we don't know, we're basically sort of getting in the realm of surmise now, but you he might well want to distance himself from the actual killing of the innocent girl by saying "Well you know it's not my fault, I want amnesty, so I've got to now connect myself with the incident without taking the blame of killing this innocent girl because I when I get out of jail have got to go back and live in that area and these people are there etc., etc., so let me have the best of both worlds, let me say I didn't kill her and let me also get amnesty by saying I was the mastermind behind the plan, but I wasn't there and my followers didn't follow my plan, they messed up". You see, so what I'm saying it's just a question of surmise when you say well why should he say that he was at his home. That might be a very good reason to say that he was at home, he's getting the best of both worlds, to suit himself. Just as in the trial he said he wasn't there, he knew nothing about it at all, alibi to save himself. And you know we hear that often, they come with that.

So I think the fact that he said that he was at his house instead of coming and saying "Well, it was me, I was at the window, I pulled the trigger and shot, just as Mrs Emily Mbongwa said at the trial", because he doesn't want to admit that he's got to go back there an face those people afterwards.

MR DEHAL: Thank you, Mr Chair. I accept that that's a very real possibility at a level of extension of logic that exists, but the other logic also exists which of course doesn't negate the point you've made here, but one sees Sbisi sitting here as a convicted person, convicted of this incident. In townships that we live in once you're convicted by a court of law you are looked at as being a person who caused the incident. He gets back after he's released, whether after he's served his term or after his amnesty or both, he's seen in the eyes of the public as the person who has committed this act, there is no gainsay argument to that.

Apart from that, there are some other difficulties I have, one of which is this age factor. Mr Sbisi says he saw him to be about 24/25, he gives his evidence as being - sorry, descriptive evidence about this man, this boy, as being tall, big in size, one whom he saw as having a beard or something of that sort. He reasoned on the basis that he associated with this man as a man of age, not as a boy of 15 ...(intervention)

CHAIRPERSON: Yes, look on that point, Mr Dehal, we haven't seen the boy, okay it's many years later now so I don't know how relevant it would be if we saw him, we know, I'm sure all of us, that you can get youngsters who are big and certainly look older than what they actually are. I don't think he's wrong in his estimation of his age, saying he's 24, whether he estimated him to be 20 or 24, I don't know if there's a huge difference, but if we had some evidence as to the physique of the kid, as he then was, something to find that the applicant is lying on that aspect, then maybe it would be worth arguing about but I don't know if we can say well without having seen that child, how badly wrong he was in the estimation of his age and if he was two or three years out in the estimation.

MR DEHAL: Yes, thank you Chair, I agree with that, we also don't have the birth certificates here. The father I understand was available and instructed Mr Panday. But apart from that, Chair, the ...(intervention)

CHAIRPERSON: I don't think we've got any basis to find that what Mr Panday put was lies, I think we can accept that there were the four kids there and the eldest was the deceased who was 19 at the time and the boy was 15, I mean we can't say well despite that being put, finding that he is 24 or 18 or 22.

MR DEHAL: I accept that, in fact Mr Sbisi also when this was put to him, said "I can't argue with you, I didn't know his age, but I just saw him to be this, he may well be 15". He didn't say you may be lying, bring him here let's see him.

CHAIRPERSON: And then he might be poor estimator of age.

MR DEHAL: Yes.

Chair, but the other aspect relating to this age is important and that is, it is not an inescapable inference to be drawn from his age, that his lack of political content or lack of political activity and therefore the act against him in the endeavour to kill him was not politically motivated, is acceptable. Now we know in South Africa, lots of young boys have been actively involved in political life, the Soweto uprising dealt with a young man, Mrs Mandela is presently before an Amnesty Committee dealing with the death of a young man in her football club ...(intervention)

MR MALAN: Mr Dehal, should we not contain the argument to what is before us on his evidence about the activities of this youngster?

MR DEHAL: Indeed, rightly put. And the evidence before us is that this young man or young boy is one who featured prominently on intelligence gathering and indeed on information given to Mr Sbisi and his own knowledge. And the Act is subjective, the Act asks us to take into consideration what Mr Sbisi believed.

That brings me to the second point and that is the political lineage. Here again the Act is not prescriptive, it deals with subjective tests. Mr Sbisi understood fully, correctly, on intelligence gathering, on his own understanding, living within the community, active in the community, active within the ANC against the IFP, that indeed the Mbongwa boy was a political activist. Now there is nothing to gainsay this political argument. So I respectfully submit that the basis for the objection falls away, on the aspect of full disclosure there is seems nothing tangible, on the absence of political lineage, there is nothing to support that argument.

There are some other minor aspects which I submit Mr Sbisi can well be criticised on, but I submit that all of these in the cumulative effect do not have so drastic an effect as to negate, as to cause his application to be unsuccessful. Some of these are the following. Mr Sbisi says that he remained within the house and sent the unit members to execute Mbongwa, I myself have difficulties with that, he was the unit head, he however has reasons why he did not go, he says he did not sleep the night before, that's contained in pages 18, 19 and 20 of the bundle, that he remained asleep, he says in his application for amnesty that he remained to guard, there was a real need to guard and indeed he did not sleep, so he wanted to sleep. Now where does that take us? However difficult that may be on credibility, or even on the application, it does not in my respectful submission, negate the basis for the application.

Then you have the execution of an incorrect person. Now let's say we accept that ...(intervention)

CHAIRPERSON: If one's dealing with probabilities now where you've got a bunch of people who are inexperienced right, have never been on a planned operation before, none of them, they're untrained and you've got the leader who is trained, okay not extensively, but he's trained in the use, and he is the leader and then he sends them out and he stays at home, stays awake, doesn't go to sleep, what's the probabilities of that? You know then this comes into the judgment, which I've heard you on that, and from the judgment we hear that the judge says that Mrs Mbongwa, I think the word used was an outstanding witness, who identified him at the window shooting and she had seen him twice before that occasion.

Now if you take that which was found by the trial court, the probabilities of the trained leader not going on the first operation, planned operation of the unit, staying at home because he's got to guard and he's tired, but he doesn't go to sleep, he waits for them to come home, can't one then start saying well, doesn't this affect the credibility of the applicant? Is this believable or is it so false that it must be rejected on the probabilities?

MR DEHAL: Chair, I see it the way you do, there are difficulties, I began by conceding this is one of my difficulties, but I must submit that it doesn't defeat his credibility so insurmountably as to render this application for amnesty nugatory, one must have regard to the facts of this incident. He was sleepy, he did not sleep the night before, perhaps what he considered within the ambit of his own mind, is that in the execution of this act, sleepy as I am, drowsy as I am, I probably wouldn't do as good a job as these other applicants. At the level of surmising ...(intervention)

CHAIRPERSON: You see and another thing that just comes in, just for your comment, Mr Panday will probably comment on this as well, the applicant says right we planned this operation, I'm sending these six inexperienced untrained people in, the objective of the operation is to go to the Mbongwa house to extract the eldest son from the house, take him out the house and kill him. Now how are they going to do that? They get to the house, we've got no detail whatsoever, we only know that when they get there they lob a petrol bomb through the window and there's shots fired and an innocent girl gets killed. Now could it not be argued that he's saying that this is a plan once again to distance himself from the tragic death of an innocent girl? His instruction was extract this guy from the house, we don't know how many people were in the house or they didn't know when they went there, it might have been a whole house full, they didn't know which room he was sleeping in, if he was sharing a room, how are they going to extract him, these are youngsters. I think there's somewhere in the papers that one of them was 15 years of age who went there, they're not operatives, they're not MK, they're green, they're rookies. They're the sort of people who should have been walking around the block and go, so maybe again it might be seen that he's again saying it wasn't my intention to cause an injury to that innocent girl. They had to extract him cleanly, like a surgeon cutting out an appendix, bring him out and then kill him. It all comes too sort of neat, especially when one takes a look at the Radebe incident as well, you know we get the statements "I wasn't there, I didn't do it", now he comes and says that he did it. That's probably - it's just the whole thing is worth looking at, one must take a look at it and consider all these aspects.

MR DEHAL: Yes. Against that background, Chair, you look at two aspects. On the other incident of Kamanati Sithole, he comes out openly and says "I was there, I did it, I did whatever was necessary, I intended to kill". On the Radebe incident again he says "I poured the petrol, I got him to drink petrol, I personally got him to drink it". Now my question is, why would he not in this incident say he went to the house against the background of what the judge has found on Emily? It may well be that, not at the level of surmising, that had he been to the house he would have carried out the execution with the precision that he intended as Commander to carry out. And therein lies perhaps support for the submission that he wasn't there, that had he been there it would have been done the way he designed it to be. And at the level of sent untrained little chaps to execute somebody, two things follow, perhaps it was so simple an incident, so simple a home where everybody knew where the boy, Radebe(sic) or the man Radebe was, to remove him and cause the execution and on the contrary a group of people go there, the lights are off, they don't know how better to act, they believe within the realms of their own mind, shooting at this figure is Radebe, they made a gross mistake. Now ...(intervention)

CHAIRPERSON: Yes, because one would have expected going on an operation like that, the preferable situation would have been for the lights to be out and for the people to be asleep, rather than the lights to be on and people active in the house, wouldn't you think? And yet they say because the lights were out we didn't know what to do so we started hurling bombs. One would have thought that would have been a better reason if the people in the house were awake and there was a lot of activity there, to get them out and then catch the chap, but it just sounds silly.

MR DEHAL: I agree.

Mr Chair, the two other considerations are the following. In South Africa in black townships you have a situation where people go into a house with guns in hand, whether lights or lights are off, they go into the house, they extract the person, they remove him out, as warlords, as gangsters or as political activists, in order to execute their act. Why that didn't happen here I do not know, lights ...(intervention)

CHAIRPERSON: We know it didn't happen because they weren't icemen, they weren't trained, they weren't experienced in it, these people didn't know what to do.

MR DEHAL: Yes, and that's the point, this is the first operation, they probably took fear, probably acted on the spur of the moment out of anxiety and did what was instinctively their gut reaction, wrongly in this case.

Now against the background of that you have Mr Sbisi who then establishes that the wrong person had been executed, what does he do, he disciplines them. The person who was involved in causing the incorrect execution is then dismissed from the unit, he can't possibly dismiss him from the ANC, but he's dismissed from the unit.

Now Mr Sbisi seems, against the background of all of that, as having acted as a disciplined leader of the MK. One wonders what would have been the situation had he personally been there, if one accepts that hew as not there.

ADV SANDI: That was not part of his evidence-in-chief, he only came up with that much later under cross-examination, this thing about taking disciplinary action against the chap who had done things wrongly.

MR DEHAL: Actually much later, in re-examination. There seemed no need to have dealt with it before that. arising from cross-examination, it occurred to us to deal with it.

Chair, there's just two other submissions that I want to make quickly and that is, there were some errors that appeared evident from Exhibit A, I'm not endeavouring to salvage the position relative to those difficulties, but I think it would be prudent for me to submit that it is common cause, common knowledge at this stage, that Exhibit A was hastily drawn. My offices came to be instructed on Friday, we received bundles on Friday afternoon, we endeavoured to meet these people on Saturday, we could not ...(intervention)

CHAIRPERSON: We know about that and we know that Ms Kooverjee saw him on Monday prior to the commencement of this matter, which was on the Tuesday.

MR DEHAL: Correct. And just to add, the last bit to that is on the Tuesday morning I was delayed in coming in here, principally because we were hastily trying to finalise this statement and you can see that there were errors with the names. Ms Kooverjee dictated is, I don't know whether aspects that were frowned over and questioned at length are as they should read in the affidavit.

Now if I may just take you to the one that we have difficulty with, and that is the one dealing with paragraph 11. Mr Malan deal with this ...(intervention)

CHAIRPERSON: About giving the impression that the description of the events took place inside and that he was a witness to them?

MR DEHAL: Indeed, yes.

CHAIRPERSON: The reading of that.

MR DEHAL: Yes. I just want to add that it may possibly be correct that when you get to the end of paragraph 11 on the second-last line -

... it may well be that that took place within, it may well be it took place outside, it's not clear. I'm not saying that it did take place inside or outside, I'm saying one can read within that line an ambiguity and therein lies the difficulty.

So against the background of the way we took this statement, perhaps that's what caused these difficulties to arise.

MR MALAN: Was his evidence not that this was really the only statement that he ever made where he knew exactly what he had to do and make a full disclosure on the true and relevant facts and even beyond what is relevant, if you refer to the third added application for amnesty?

MR DEHAL: Yes, yes, I agree Sir, that was his evidence, but you must look it against the background of what really happened. I mean as lawyers we hastily take his affidavit, he's not an English speaking person, we use an interpreter from my office, we hastily go through this. In fact, we had just about half-an-hour on Monday to do this and I had about an hour to settle it on Tuesday, without having consulted with him. I'm saying within the broader context of the way it was taken, there may be difficulties. If I had a week or two to deal with it, one can then say yes, it's an exacting expression of exactly what happened. Mr Sbisi on the other hand made this as the first statement, the fact that he makes it and testifies to it as being the first full disclosure statement doesn't in itself infer that it was well thought of and well considered and well documented and well doctored and well recorded.

Broadly speaking then against that background, in terms of Section 20(1)(a), I respectfully submit that the requisite provisions of the Act have been complied with and inasmuch as there are these difficulties they are not so insurmountable as to be nugatory. Thank you.

CHAIRPERSON: Thank you, Mr Dehal. Mr Panday?

MR PANDAY IN ARGUMENT: Thank you, Mr Chairman.

I think my learned friend ...(indistinct) why must the applicant apply for amnesty in respect of count 2, why must he have reason to lie in respect of count 2 ...(intervention)

CHAIRPERSON: Sorry, in respect of count 2, you're talking about Mbongwa?

MR PANDAY: Mbongwa, yes.

CHAIRPERSON: Okay, so we know that when we talk about that, count 1 is Radebe, 2 is Mbongwa, 3 is Sithole.

MR PANDAY: ... he would have no reason to lie about not being present. The answer actually is quite simple, if one peruses page 29 of the sentence, even if one accepts that the applicant is a political activist, he may obtain amnesty for count 1, that of the Radebe incident, but that still doesn't dissolve his problem, he will still be in prison because the effective sentence he got is 30 years. Now the only thing now to solve that problem is to link himself to the killing of the Mbongwa girl, and how does one do that? He must now try and come up with someone in the family that may have been politically active, namely the brother.

Now it is true that my learned friend directs the Committee to the fact that one must not place too much weight on the evidence of the mother, but it is my respectful submission that I totally disagree with that. The evidence of the mother read with the discrepancies that were put before this Commission, changes the entire scenario. You have the applicant who has sworn to the truth to this and correctness of the affidavit from page 18 to 20, he thereafter confirms the Exhibit A that was handed in and it is here where the discrepancies come in. He maintains in Exhibit A, namely on paragraph 19 on page 6 -

When the discrepancy was pointed out in paragraph, in the affidavit, on page 18 to 20, where he mentions that he was asleep, he now seems to remedy this by giving the impression that he could not sleep. That may be possible, but these remedies only came about when the discrepancies were put to him. And Mr Chairman, one must not lose sight of the judge's analysis of the witness.

It is my respectful submission that if the judge at any stage regarded the witness to be doubtful in identity, the accused would have never been near applying for amnesty, that would have solved his problem, he would never have been convicted because he maintains he was never there.

Now he also says to us that "We decided that I should take the blame". He was never there, no-one would have ever known that he ...(intervention)

CHAIRPERSON: I have difficulty with that, I mean if they decide that he takes the blame, then he doesn't take the blame, I mean it just doesn't make sense to me.

MR PANDAY: If he maintains that he was never there he would have never been before the trial.

CHAIRPERSON: Because if he agreed to take the blame then one would have expected him to have gone to court and pleaded guilty at least to culp or something, you know take some sort of blame, but he doesn't, he puts himself away from the scene. I can't see how that is in fulfilment of an agreement that he takes the blame. One wonders how he was arrested or why.

MR PANDAY: That is the point exactly, Mr Chairman, and you highlighted the point quite correctly.

Now it is further my submission that if the judge was wrong in analysing the evidence of the mother, whom he regarded as outstanding, then we would still have had the other accused that were arrested in this matter, standing trial, but yet he was the only one that was convicted and the only way that he could have been the only person that stood for trial was if he was identified and the judge points out that the mother methodically, analytically identified him on three occasions, that led him to consider that her identification and her evidence was accepted in all material respects.

Now the issue of full disclosure. It is my respectful submission that he has not disclosed fully to this Commission. He may in the eyes of the Committee, be believed to have been a political activist. The unfortunate position the Committee is faced with is that all the applicants or most of the applicants allege their political affiliation, together with the history that our country has experienced. One has to accept that there's reasonable possibility of them being politically active. But then, it is also further safeguarded to test the political affiliation by the disclosure aspect and the disclosure assists us in preventing the awarding of amnesty to any person that merely alleges political affiliation and political activity.

Mr Chairman, I must respectfully submit that in the affidavit the applicant, on pages 18, 19 and 20, submits that violence was first rife in 1993, when Mr Chairman's brother put to him that, or questioned him as to when he was first informed of the police or when did the police know of him, by the Mbongwa boy, he related to 1992. Now one has to view this evidence with great circumspect, as to whether he now wants to implicate someone as being a political activist because at the end of the day it is my respectful submission, the Amnesty Committee may grant him amnesty in respect of the necklacing of Jabulani Radebe, that doesn't solve his problem from coming out of prison, he's left with approximately another 15 years to go. And it is my submission that his application will be futile because at the end of the day he will still be serving his sentence in respect of count 2, the murder of Pumzile Mbongwa.

Mr Chairman, I respectfully submit that the applicant has not made full disclosure and great consideration must be given to the judgment in respect of the mother who gave evidence, unfortunately she is deceased, we cannot have her evidence before us, and it is my further submission that even if the applicant passes on the political aspect of his life, he has failed on the disclosure aspect, having regard for the discrepancies. And I must stress that the discrepancies are not immaterial discrepancies, he attempts to remedy these material discrepancies only upon cross-examination.

I accept that my learned friend placed the constraints that all of were, that he had to consult and draft affidavits, but these discrepancies are not relating to the material defects that come out in cross-examination, these discrepancies don't impact on the discrepancies and more specifically to the Mbongwa child that was killed. Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Panday. Ms Thabethe, do you have anything to say?

MS THABETHE IN ARGUMENT: Yes, Mr Chair, I do, thank you.

With regard to the murder of Pumzile Mbongwa, Mr Chairman, my submissions are that the applicant in his evidence appears to be disassociating himself to the murder of Pumzile Mbongwa, in that he admits to having been involved in the planning of killing Mr Mbongwa, but he admits to the plan having gone wrong, that is his instructions or the decisions that were taken during planning were not carried out as according to the plan. My submission therefore is that maybe amnesty can be considered for conspiracy to kill but not the actual murder because he disassociates himself to the murder.

With regard to the incident of Sithole, I would like to argue, Honourable Members of the Committee, that the applicant has given reasons why he has included this incident so late, but Mr Chair, I would like to submit that our officers, our Investigation Unit are police officers, they deal with applicants all the time and their practice is to go to the witnesses, applicants, the victims, they explain what the process is about, that is the practice and they explain the issue that one has to disclose all the involvement or all the acts that he's committed. I would like to submit Members of the Committee, therefore that I think this was an afterthought. And besides that, Mr Chair, according to the Act or in terms of the Act, the Committee cannot consider applications which were submitted after the cut-off date for the submission of applications and therefore the incident of Mr Sithole cannot be considered, moreover it doesn't flow from the offence which the applicant had initially made application for. So really, it's outside the ambits of ...(intervention)

CHAIRPERSON: It's a question of our power, our jurisdiction, no matter how compelling it may be, the reason why it wasn't included, our powers are defined by the Act ...(intervention)

MS THABETHE: And it's outside the jurisdiction ...(intervention)

CHAIRPERSON: I'm sitting here as a Member of the Amnesty Committee and I'm not sitting in court as a judge where there's an inherent jurisdiction, but here I'm completely confined to my powers as described in the Act.

MS THABETHE: Precisely, Mr Chair, I'm indebted to you.

With regard to the attempted murder ...(intervention)

CHAIRPERSON: Are you doing Radebe, not the other Mbongwa one?

MS THABETHE: No, I've argued that. Basically with regard to the Mbongwa incident, I see the applicant dissociating himself, I'm even compelled to say he denies guilt with regard to the murder, he only admits to having planned it, but he disassociates himself from the murder that consequently or eventually happened.

With regard, Mr Chair, to the attempted murder of Mpikayi Pele Radebe, from the evidence of the applicant it appears to have been political and I respectfully leave it in the hands of the Committee to made a decision with regard to that incident. That is my humble submission.

ADV SANDI: Sorry, just one thing. With regard to this attempted murder of Mpikayi Pele Radebe, is he not really - when one looks at his evidence, he's putting himself on the scene, whether it happened inside or outside this building where he was ...(intervention)

MS THABETHE: No, it's the burning, I'm talking about the necklacing.

CHAIRPERSON: Yes, he's not applying in respect of the assault on the son.

MS THABETHE: Yes, yes.

ADV SANDI: Thank you.

CHAIRPERSON: Thank you, Ms Thabethe. Do you have any reply, Mr Dehal?

MR DEHAL IN REPLY: Thank you, Mr Chairperson. I actually wanted to deal with these political aspects earlier, but I don't think it's - I think I will just deal with them by reference. I think Chair, yourself and the Honourable Members are fully familiar with the African National Congress' statement to the TRC, August 1986 and it's position on SDUs and necklacing.

CHAIRPERSON: ... also familiar with the fact that a lot of the SDUs were undisciplined. You see the ANC policy with the establishment of the SDUs, particularly in this province, and I know it because I was involved in the amnesty application of the person who was responsible of the persons who were responsible for establishing the SDUs in this province, was that it should have been done in conjunction with the MK.

They would send an MK cadre to the area who would train them, who would sort out about getting guns, but they did say that when the violence got out of hand and got more extensive, these SDUs were just springing up without them even knowing about it. And I don't know if this was one of those or not because the operation conducted on the Mbongwa house was very amateurish to say the least, not only in the carrying out of it but also on the fact those people so experienced, were sent to do that.

MR DEHAL: No doubt there was criticism ...(indistinct) Mr Chair, but it seems like in these submissions what the ANC did is further than that, they said that whilst they were springing up all over and were ill-disciplined in some respects, within the broader spectrum of what was happening from the right-wing, from MK being attacked by the Security Police, the police, the regime as they call it, of the then government, the SDUs activities must be seen within the broader spectrum ...(intervention)

CHAIRPERSON: Yes, I know that.

MR DEHAL: Sorry, Chair. Then finally, the other aspect is, on page 11 to 12 of the further submissions and responses by the ANC dated 12th May 1997, where they deal with the question of necklacing and the ANC stance on necklacing, I don't want to read those voluminous paragraphs, simply to submit that Mr Sbisi's act on the necklacing or the endeavoured necklacing falls within the parlance and the purview of this. Thank you.

CHAIRPERSON: Thank you, Mr Dehal. We will reserve our decision in this matter and we hope to get out a decision in the near future. We shall work on that.

I see that it's now time for the - in fact, beyond the time, for the short tea adjournment, so we'll take the short tea adjournment now and then we'll start with Mr Ngcobo's application. If you could let us know as soon as you're ready, but we can take it for 20 minutes unless there's any reason why you want any longer. Thank you. We'll adjourn.

MR DEHAL: Mr Chairperson, with Dludla, Thulani Jerome Dludla, the two-paged statement.

CHAIRPERSON: ...(indistinct - no microphone)

MR MALAN: The Ngcobo matter.

MR PANDAY: I'm sorry, Mr Chairman, I spoke to the family, unfortunately it's still the Ngcobo matter to proceed.

MR DEHAL: Mr Chairman, ...

CHAIRPERSON: Sorry, I must find the bundle.

MR DEHAL: I was just worried about the time constraints, I understand that this hall is going to be used at 1 o'clock for some other purpose and that we're going to be leaving earlier, so I don't know whether we'd finish Ngcobo by then. Ngcobo is going to be little lengthier than Dludla. I was just hoping to assist by finishing Dludla.

MR MALAN: Mr Dehal, did we not in chambers in the break say that we'd stick to the schedule as arranged?

MR DEHAL: No, we discussed that except that I'm just endeavouring to assist this whole process.

CHAIRPERSON: Where is Ms Thabethe.

CHAIRPERSON: Mr Panday, are you ready for the Ngcobo one or the Dludla one?

MR PANDAY: Mr Chairman, I don't have any objection, if the Dludla matter is going to be expedited, I'm prepared to go on with that matter as well if the family is available. They were here in the morning.

CHAIRPERSON: Right, if we're ready we can start with that one, Dludla.

MR DEHAL: Sorry, Chair, I had ...(indistinct - no microphone)

MR MALAN: Is that Mr Ngcobo?

MR DEHAL: Yes.

MR MALAN: Well let's continue with him then.

CHAIRPERSON: Alright, we'll start with the Ngcobo one.

MR DEHAL: Thank you, Mr Chairperson.

MR DEHAL: Mr Chairperson, Ngcobo's statement has been handed around and I presume everybody has got a copy.

CHAIRPERSON: Yes. I think he should be sworn in, Mr Dehal. We'll now commence the amnesty application of Mr Vivian Bhani Kwenzo Kwahke Ngcobo.

VIVIAN BHANI KWENZO KWAHKE NGCOBO: (sworn states)

CHAIRPERSON: Thank you. Mr Dehal?

EXAMINATION BY MR DEHAL: Thank you, Sir.

Mr Ngcobo, is this your statement that was recently prepared, duly assisted by members of my office and is that the one that you have signed?

MR NGCOBO: Yes.

CHAIRPERSON: We'll refer to the statement, Mr Dehal, as Exhibit A.

MR DEHAL: Thank you, Sir.

CHAIRPERSON: Thank you.

MR DEHAL: And Mr Ngcobo, is it correct that you've signed this statement confirming the correctness thereof, and signed this yesterday, correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: This you regard as having the basis for your amnesty application, is that correct?

MR NGCOBO: Yes.

MR DEHAL: You are basically applying for amnesty on one count only, a count in regard to which you had featured at a meeting when shots were fired and two people came to be killed, correct?

MR NGCOBO: Yes.

MR DEHAL: And it so happened that a third person was injured, but as per the details in the trial transcript, that third person appeared to have moved in the last minute and was caught in the crossfire, but you were not convicted of that, is that correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: I see that you've got plain clothes on, you're not in prison at the moment are you?

MR NGCOBO: I am in prison.

MR DEHAL: I see. But you were convicted by Judge Hugo in that matter and sentenced - I don't see the sentence, oh sorry here it is ...(intervention)

CHAIRPERSON: He's put it - yes, on page 16 he says 25 years, probably the effective term.

MR DEHAL: Thank you. Mr Chairperson, in our desire to be as expeditious as possible, I do not want know to read this in, I must say that this applicant however was intent on reading it in. Mr Malan seems to think we should rather just hand them in and have them confirmed, I have no difficulty with that, the only reservation being I think this applicant wanted the people in the crowd to hear him.

CHAIRPERSON: Well you can highlight any points you want from it, Mr Dehal.

MR DEHAL: Yes.

MR PANDAY: Sorry, Mr Chairman, if I may just comment. Mr Chairman, for the purposes of clarity and preventing mishaps, having regard for the fact that these papers were prepared on urgency of basis, I think it would be advisable that the applicant actually read in this affidavit and if there are any discrepancies he may remedy them.

CHAIRPERSON: Or else Mr Dehal can read it and get the applicant to either confirm or change, whatever he wishes.

MR MALAN: Mr Dehal, just a question on paragraph 4, you refer to the date 1981, I assume that must be 1991, if I look at the date of birth of the applicant and his reference to the contents of that. Could you just check that.

MR DEHAL: Do you mind? I thank you for bringing that to my attention, I actually didn't dictate this, so I can I just confer with those who did it? Bear with me.

CHAIRPERSON: I think, Mr Dehal, what can happen is when you're going through the statement with your client, you can specifically draw him and ask him whether it's 1981 or 1991, after all it's his statement. And if it is 1991 instead of 1981, we'll understand that it was a typing error.

MR DEHAL: Thank you, Chair.

Mr Ngcobo, is it then correct that in your statement you say in paragraph 1, that you're an adult male born on the 2nd of February '68, unmarried and resident N363, Umlazi Township, P O Ntakazweni, correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: You said that you're currently detained at Westville Prison, with your prison number recorded there and detained at Medium B cell, 306, and that you've been sentenced for two counts of murder.

MR NGCOBO: Yes.

MR DEHAL: You were born and brought up in the area known as Engonyameni.

MR NGCOBO: Yes, I grew up Engonyameni.

MR DEHAL: Then look at paragraph 4, in paragraph 4 you say -

Would that be 1981 or could that be 1991?

MR NGCOBO: It started in 1981.

MR DEHAL: You say you read the literature, you were impressed, you realised that this is the organisation you preferred, namely the ANC, you then began to attend regular meetings at the Umlazi grounds, you were getting ready to be trained as an ANC cadre, you liked the aims of the ANC, as they were helping the black people in the country, they were not fighting amongst the blacks, they wanted the blacks, that's the ANC wanted the blacks to unite and to free the people. Your uncle was arranging for you to be recruited in MK and that you made an application and received a card as an ANC member. You also embraced the ideals of the armed wing of the ANC, MK, and aligned yourself to the call of the President of the ANC, for all South Africans to embrace MK and to work together to free the oppressed black masses, correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: Then in paragraph 5 you say that in 1992 there was a lot of violence in the Engonyameni area, in that members of the Inkatha Freedom Party were becoming violent and killing members of the ANC. During this violence many of your family members were shot dead, namely your grandfather, Buthelezi and Keshla your uncle, Zungu your neighbour and Kuzwayo, your other neighbour.

You were perturbed by this violence, you were also annoyed that during this time of the violence, Mbukazi who was the Induna in the area, requested you not to fight, you and others not to fight. However you did not worry about the members of the IFP coming to kill you and others, nor did Mbukazi stop them from fighting.

Shandu was always joined with Mbukazi and helped him with his cause. The police were not helping as they were helping members of the IFP. Correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: Then you say that in 1992, your house together with various other homes in the neighbours(sic) were damaged, during about 21st March '94, Sadam and one, Mashelela Kwela, came to you and was also told that Mbukazi, Shandu and Cele were going to be present at a meeting to be held, correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: You then deal in paragraph 7, with you having attended that meeting where you saw Shandu and Mbukazi arrive with others, that by that time you had already had a firearm in your possession, that this firearm had been obtained from Mashelela Kwela, who was the Commander of your MK Unit. The firearm you obtained on the 21st of March, before you even got to know of the meeting. The firearm was given to you to protect yourself and to protect the community, either as an SDU member or MK operative, correct?

MR NGCOBO: Yes.

MR DEHAL: Then in paragraph 8 you say that at the meeting you noticed Mbukazi in a crowd of people, together with Shandu, you immediately fired at him, you fired two shots at Mbukazi and one at Shandu. Then there were many shots fired as there were other members of the ANC who began to shoot at members of Inkatha, you then returned home.

MR NGCOBO: Yes.

MR DEHAL: In paragraph 9 you say you tried to return the firearm to Kwela, but you could not find him. Agreed?

MR NGCOBO: Yes.

MR DEHAL: In paragraph 10 you say - a few days later you went to Mr Mkhize's house with your friend Nunu, to apologise to Mr Mkhize as you did not, or you and the others did not intend to injure him. He was the one who supported the ANC and your targets were Mr Shandu and Mr Mbukazi. Correct?

MR NGCOBO: Yes, that's correct.

MR DEHAL: Now this is the Mkhize who was caught in the cross-fire and in regard to whom you were charged but you were acquitted, correct?

MR NGCOBO: Yes.

MR DEHAL: Sorry, if you'll bear with me.

Just to refresh your memory, on page 10 of the judgement - sorry, page 40 of the bundle, the judge says in regard to this, which is the second paragraph, beginning at line 12 -

Do you remember that?

MR NGCOBO: Yes, I do.

MR DEHAL: Now I take you to paragraph 11 of your statement. In paragraph 11 you deal with how deeply sorry you are for having killed Mr Shandu and Mr Mbukazi. You say that the only reason that they were killed is because of the ongoing violence in the area and that they were encouraging the members of the IFP to kill members belong to the ANC, and you and others were not being assisted by the local police or the local Chief and that you had to defend the ANC community members and yourselves. The two deceased were always correctly viewed and accepted as legitimate targets of the ANC, correct?

MR NGCOBO: Yes. Then finally, you end up by saying that you wish to reconcile with members of the Shandu and Mbukazi family and that you accordingly apply for amnesty for their killing, is that correct?

MR NGCOBO: Yes.

MR DEHAL: Mr Chairperson, that's the evidence, thank you.

ADV SANDI: He's not applying for amnesty in respect of the firearm as well? It goes without saying.

MR DEHAL: I see that he was charged with unlawful possession of the arm and ammunition, I don't really know whether he was convicted on it.

ADV SANDI: He was acquitted yes, it says on page 41.

CHAIRPERSON: Mr Panday, do you have any questions you'd like to put to the applicant?

CROSS-EXAMINATION BY MR PANDAY: Yes, Mr Chairman.

Mr Ngcobo, how long were you in association with Mr Kwela?

MR NGCOBO: He arrived in the place in 1990, we started knowing each other in 1992.

MR PANDAY: And what was your association with him?

MR NGCOBO: He was a member of the ANC and I was also a member of the ANC.

MR PANDAY: Now are you also familiar with the name Msomi?

MR NGCOBO: Yes, that's a surname.

MR PANDAY: Who is Msomi, or how do you know Msomi?

MR NGCOBO: His name is Silwani Msomi, he was a resident at Cele(?) area and he was the member of IFP.

MR PANDAY: Tell me, isn't it correct that Msomi and Kwela were in the taxi business?

MR NGCOBO: The only knowledge that I have is that Msomi was in the taxi industry, I don't know about the other one.

CHAIRPERSON: So what are you saying Mr Ngcobo, that Mr Kwela may have been in the taxi business but you don't know it, you're not denying that he was in the taxi business? Or are you denying that he was in the taxi business?

MR NGCOBO: I don't have full knowledge because all I know is that he didn't have a taxi.

ADV SANDI: Do you know if he was involved in any type of business other than the taxi industry?

MR NGCOBO: He was working and his father had a sugarcane field.

MR PANDAY: Mr Ngcobo, I have members from the family of the victims that will testify here today that Kwela and Msomi were both involved in the taxi business in Isipingo. Would you be able to dispute that?

MR NGCOBO: No, I wouldn't be able to do so because I didn't have full knowledge of that about him.

MR PANDAY: They will further testify that there was a rival between these two people, Kwela and Msomi, and that this rivalry was taken from Isipingo into the Engonyameni area. Would you be able to dispute that?

INTERPRETER: What's the name of the other area, from Isipingo to ...?

MR PANDAY: Engonyameni. I think I'm pronouncing it right.

CHAIRPERSON: It's the one - if you've got the statement of Mr Ngcobo, it's the name that appears in paragraph 3. Is that right? Engonyameni.

CHAIRPERSON: Mr Ngcobo, the question was ...(intervention)

MR NGCOBO: I don't have that knowledge that the rival came from Isipingo to Engonyameni, because when Kwela arrived in the area there was no fight, it started later. And when the fights started we went to the Induna.

MR PANDAY: What fights do you refer to, Mr Ngcobo?

MR NGCOBO: When we were attacked in the area in 1992.

MR PANDAY: Now were you aware that Msomi was also in the area in 1993/1994?

MR NGCOBO: Yes, 1992, 3 and 1994, he was in the area.

MR PANDAY: Now Mr Ngcobo, you mention in your affidavit that the Induna, Mr Mbukazi, was known to Shandu, how did you know of their relationship?

MR NGCOBO: Mbukazi and Shandu knew each other. We didn't know Shandu in the area, we only became to know Shandu because he was together with the Chief, Mbukazi.

MR PANDAY: Now do you know that Shandu was there from a peace-keeping organisation?

MR NGCOBO: I heard like that, but he had arrived for three days and usually before, on other occasions when he arrived, after that we will be attacked. So on that occasion he had been there for three days.

MR PANDAY: You see, Mr Ngcobo ...(intervention)

CHAIRPERSON: Sorry, Mr Panday, if I could just get this cleared up.

Sorry, what you're saying, you're saying you got to know Mr Shandu when you saw him in the company of Mr Mbukazi in your area, is that right?

MR NGCOBO: I saw him when he came with Mbukazi, when he was injured or when he was killed.

CHAIRPERSON: Was that the first time that you saw Mr Shandu, the time that he was shot at the meeting in January 1994?

MR NGCOBO: Yes, it was my first time, I only heard before that he'd usually come to the area, but it was my first time seeing him.

CHAIRPERSON: You only heard, who did you hear from?

MR NGCOBO: People who went to meetings like Mashalele and Sadam.

CHAIRPERSON: And did they mention - those people whom you'd hear from, did they mention Mr Shandu by his name, or did they say well there is this peace-keeper, or did they say Mr Shandu?

MR NGCOBO: They said there was a man who was seen together with Mr Mbukazi.

CHAIRPERSON: So you didn't know his name even, before the time that you shot him?

MR NGCOBO: No, I didn't know his name and also I didn't even know his face.

CHAIRPERSON: So how did you know who to shoot at at the meeting, other than Mbukazi?

MR NGCOBO: Yes, it was Mbukazi whom I knew. The reason Shandu was shot at is because he was with Mbukazi.

CHAIRPERSON: Mr Panday.

MR PANDAY: Mr Ngcobo, you say the reason Shandu was shot was because he was with Mr Mbukazi, now ...(intervention)

MR NGCOBO: Yes, it was because he was with Mbukazi and I drew the inference that if he is with Mbukazi, then he was also an IFP member.

MR PANDAY: Any reason why Cele was not shot?

MR NGCOBO: He wasn't present and also usually whenever there were meetings, Cele wouldn't go to those meetings.

CHAIRPERSON: Sorry Mr Panday, if I could just, while we're on this point.

Were there a number of people at that meeting, a large number of people?

MR NGCOBO: No, it wasn't a large number of people, even though there were a quite a number of people.

CHAIRPERSON: What would you say, if you take a look at the people sitting in this hall now, was it the same amount more-or-less or was it more people or less people?

MR NGCOBO: More.

CHAIRPERSON: More people. Yes, I don't know how many can be counted but there's approximately 20/25 people in the hall. And was this meeting inside, inside a structure, a building, or was it outside?

MR NGCOBO: Outside.

CHAIRPERSON: Now weren't all those people together?

MR NGCOBO: They were together there in that vicinity, but they were not coming from one place.

CHAIRPERSON: And who came with Mr Mbukazi then?

MR NGCOBO: It was Mr Shandu and Mr Gumede and I think Mkhize as well.

CHAIRPERSON: So a group of about four of them came, Mbukazi and about three others?

MR NGCOBO: Yes, even though I'm not certain, there can be four or six.

CHAIRPERSON: Sorry, what was the meeting about, what was the subject of the meeting, what was the business of the meeting?

MR NGCOBO: Nobody explained to us about the meeting, but we knew that, or we had a problem, we as the community, that the Chief didn't want to meet with the community and the community wanted to meet with the Chief to place their grievances, but he never gave himself a chance to meet with the community.

CHAIRPERSON: Mr Panday?

MR PANDAY: Mr Ngcobo, isn't it correct that this meeting was being held solely for the purpose of sorting out the rivalry between Msomi and Kwela and this was not political?

MR NGCOBO: I wouldn't know, all I know is that in that area we were surrounding by political violence.

CHAIRPERSON: Yes, but was there also a taxi violence?

MR NGCOBO: No, there wasn't any taxi violence and taxis would drive past anywhere and one would never hear that a taxi had been shot at.

MR PANDAY: Did you drive a taxi, Mr Ngcobo?

MR NGCOBO: No.

MR PANDAY: Now Mr Ngcobo, Mr Shandu only attended - and the family will testify he only came to this are in 1994, to attempt a peace settlement between the Kwela and the Msomis. The family will further testify that on the day he was shot, the meeting hadn't taken place as yet, they were merely seeking a venue for this meeting to take place. Isn't that correct?

MR NGCOBO: I wouldn't know, but all I knew before is that the meeting was going to take place in that area where I went.

CHAIRPERSON: Did Kwela tell you about the meeting?

MR NGCOBO: Sadam and Kwela.

MR PANDAY: Now Mr Ngcobo, do you recall your trial?

MR NGCOBO: Pardon?

MR PANDAY: The trial that you stood, do you recall that trial?

CHAIRPERSON: When you were in court, your case.

MR NGCOBO: Yes, I do remember event though I don't remember the date and the day.

MR PANDAY: Do you recall telling the court that you were forced to attend this meeting?

MR NGCOBO: I don't understand how forced I was.

MR PANDAY: In your evidence you mentioned that you were forced by Vusimuzi Mkhize, to attend this meeting.

MR NGCOBO: Yes, he told me that I was supposed to be in that meeting to protect our community in our area.

MR DEHAL: Sorry, can we just get the reference in the bundle to that.

MR PANDAY: Sorry, it's on page 36, two lines above the line 25 mark.

MR DEHAL: Thank you.

MR PANDAY: So you admit that you were forced - you mention that you were forced to attend this meeting. Now ...(intervention)

MR NGCOBO: No, I wasn't forced, I was told that I should be there since I was one of the persons who were protecting the ANC and the community.

MR PANDAY: Now why should you be at this meeting, what was the reason for you to be at this meeting?

MR NGCOBO: I was guarding the community, that was my duty, and also to defend and also to protect the elderly and the females in the area.

MR PANDAY: But Mr Ngcobo, wasn't this meeting a peace meeting to be held?

MR NGCOBO: I wouldn't know, but we were told before that, or in other occasions we had experience whereby a community had been told that there will be a peace meeting and when we attend only to find out that members of the community will be attacked.

CHAIRPERSON: Yes, but were you told in this instance that it was going to be a peace meeting? Although what you've told us now that you didn't trust peace meetings, but were you told that it was a peace meeting?

MR NGCOBO: No, we were not told, we were only told that the meeting was about bringing the Chief closer to the community so that the community places their grievances to the Chief.

MR PANDAY: Now Mr Ngcobo, on your affidavit, the Annexure A, on page 2, paragraph 5, is it correct that even in 1992, that the Chief was still Mbukazi?

MR NGCOBO: No, Mbukazi wasn't a Chief, Mbukazi was an Induna. The Chief was Mr Cele.

MR PANDAY: So since 1992, Mr Mbukazi was the Induna, now if he was responsible for allowing the violence on the ANC members from 1992, why only in 1994 you decide to attack him?

MR NGCOBO: Before then there was another Induna who played an effective role, he will speak to Mbukazi and to Cele and then that Induna left that post and joined the taxi industry. We only learnt later that Mbukazi was not prepared to help us, but he was prepared to help the IFP, because sometimes he will force the community to attend IFP meetings and sometimes people will be killed in masses, then we realised later that he was the one behind this.

MR PANDAY: You see, Mr Ngcobo, the family thinks otherwise and one of the members will testify that firstly, namely the son of the Induna Mbukazi, that everyone in the community knew that a peace meeting was to held because the Kwelas and the Msomis were fighting and that fight was a faction fight over the taxi problems, now how is it that you know make it seem that Kwela was in fact having a political agenda as opposed to a taxi faction?

MR NGCOBO: The reason I'm saying so is because we were attacked and we were continuously attacked by IFP, and my first association with Kwela was because he was an ANC member.

MR PANDAY: Did Kwela know Mr Shandu?

MR NGCOBO: I wouldn't be certain about that, maybe it may happen so because Shandu was also from Embombolu.

MR PANDAY: Now Mr Ngcobo, I'm going to refer you to the judgment on page 31 and on the first five lines, now the first five lines the judge points out that there was a faction between the two gangs, they refer to the Kwelas and Msomis as gangs. Now you maintain that you were in association with Kwela all the time, how is it that you did not know of this faction?

MR NGCOBO: The reason I don't know, it's because you're saying the friction was caused because of taxi violence. All I know is that Msomi attacked Kwela. In fact, Kwela was not the only one who was attacked by Msomi, Msomi attacked a number of others. We also requested protection from the Nduna, but we didn't receive it.

MR PANDAY: But isn't it correct that the Induna was going to try and have a peace meeting to solve this problem?

MR NGCOBO: Which problem are you referring to now?

MR PANDAY: This problem between the Kwelas and the Msomis.

MR NGCOBO: I wouldn't say it was between the Kwela and Msomi, because Msomi didn't just attack the Kwelas but he attacked quite a number of other families, that's when we realised that this was real bad because even the ZPs were brought.

CHAIRPERSON: Are you saying, Mr Ngcobo, that Msomi attacked Kwelas and other families and Kwela was just an innocent victim, he didn't hit back?

MR NGCOBO: He tried to retaliate in his own way and after that the Induna, the other Induna requested him not to fight again because he was going to speak to Mbukazi about this and then later Cele told us that why would we sit back if we are being attacked, we must also attack.

CHAIRPERSON: So there were then attacks and counterattacks with the main role-players being Msomi on the one side and Kwela on the other?

MR NGCOBO: I wouldn't say no on that, it was like that and also Kwela attacked as well.

CHAIRPERSON: Mr Panday?

MR PANDAY: Mr Ngcobo, you mentioned that Mr Shandu lived in the Embombolu area, is that correct?

MR NGCOBO: I learnt so, even though I'm not sure where in Embombolu.

MR PANDAY: Firstly, who told you so?

MR NGCOBO: I only learnt about this in the area, that Shandu was from Embombolu.

MR PANDAY: You see Mr Ngcobo, namely the daughter of Mr Shandu, will testify that Mr Shandu was from Umlazi. Now who ...(intervention)

MR NGCOBO: Yes, he was staying in Umlazi but he is originally from Embombolu, this is where he was born.

MR PANDAY: Now how do you know he was staying in Umlazi?

CHAIRPERSON: Sorry, I didn't hear that question, if you could just repeat it please.

MR PANDAY: Yes, Mr Chair, it's how does he know that Mr Shandu is from Umlazi.

MR NGCOBO: I only learnt about this after he was killed.

MR PANDAY: You see Mr Ngcobo, now that you relate yourself to Kwela, it turns a different light on your political actions because the family and the members of the community know that there was this ongoing violence between the Kwelas and the Msomis and that this violence shifted from the Isipingo taxi rank to the Engonyameni area. Now it is my respectful submission and I put to you that you were actually part of the gang of Mr Kwela and not a member of the ANC body, as you put it. Can you comment on that?

MR NGCOBO: Yes. I was not a friend of Kwela. The reason I became known to Kwela, it was because of the violence in the area and also that he was an ANC member and when they were attacking us they didn't attack us as taxi people, but as ANC.

MR PANDAY: When was it that you first made contact with Kwela, how did you come into contact with Kwela first?

MR NGCOBO: I wouldn't be able to remember the date or the month, but when I first met him it was in - when we first started working together it was in 1993, but I first met him in 1992.

MR PANDAY: And how did you know that he was an ANC member?

MR NGCOBO: I learnt this from other people and also he told me, and he also showed me his membership card.

MR PANDAY: Now you say you learnt it from other people, now when did you learn this from people, what year did you learn this from other people?

MR NGCOBO: Late 1992, and this was the period when the ANC members were being killed.

MR PANDAY: Mr Ngcobo, lastly, I'm going to put it to you that this was not a political violence attack, this was merely an attack on two parties that were attempting to bring peace to the land, that was being caused by a taxi rivalry and you now by association with Kwela, and in fact this in Exhibit A of yours, actually ties up the loose end in terms of the judgment that was delivered, where they emphasise the point that it was a gang violence, which is the Kwela/Msomi. You actually tie up the loose end in terms of your association as to what led to the killing of these two people and that killing was not political at all. Can you comment?

MR NGCOBO: Yes, I would like to comment. I never associated myself with any taxi businesses and if I knew at the time that he was in the taxi violence, then I wouldn't have associated myself with him. I only associated myself with him because of politics.

MR PANDAY: Thank you, Mr Chairman.

CHAIRPERSON: Thank you. Ms Thabethe, do you have any questions you'd like to put to the applicant?

CROSS-EXAMINATION BY MS THABETHE: Yes, Mr Chair, thank you.

Mr Ngcobo, you've given evidence that there was fighting between Kwela and Msomi, what was the fighting about or what were they fighting for?

MR NGCOBO: I wouldn't be able to know because it was never ascertained, but what I ascertained was that they were killing comrades. Why comrades were being killed, I also didn't know, all I know is that IFP and the ZPs were killing the comrades.

MS THABETHE: So if I understand you correctly you are saying you don't know why they were fighting ...(intervention)

CHAIRPERSON: Sorry, Ms Thabethe, I didn't hear it, if you could just repeat the question.

MR NGCOBO: Yes, I didn't know why they were fighting, but all I know is that they continued to kill people and they claimed that they were killing comrades.

MS THABETHE: Did Mr Msomi belong to any political organisation?

MR DEHAL: Sorry, Mr Thabethe ...(intervention)

INTERPRETER: Chairperson - yes.

CHAIRPERSON: Ms Thabethe, the translator was still talking.

MS THABETHE: Yes, sorry.

CHAIRPERSON: If you could just repeat your last question, the one that you've just mentioned now.

MS THABETHE: Did you know which, if Mr Msomi belonged to any organisation?

MR NGCOBO: I discovered when they were killing us that he was an IFP ...(intervention)

MS THABETHE: Then how did you know this? How did you know this?

MR NGCOBO: When he was with the ZPs and they were attacking comrades and he was claiming that he was killing comrades.

MS THABETHE: Now you've given evidence that Mr Mbukazi tried to resolve the issue by first going to the Inkosi and then later arranging a meeting, correct?

MR NGCOBO: Would you please repeat that for me.

MS THABETHE: That Mbukazi tried to resolve the situation by first going to the Inkosi and then later arranging a meeting.

MR NGCOBO: It wasn't Mbukazi, it was another Induna, the Induna for the boys. He's the one who tried to speak to Mbukazi first and then to the Chief. After that, Mbukazi tried to speak exactly like the Chief.

MS THABETHE: And that is why Mbukazi decided to call Shandu to have a meeting, is that correct? Just yes or no.

MR NGCOBO: I wouldn't know that. The Chief was present and the Councillors were there and the community and also another Chief from the Numbela area. They all wanted this thing to be solved, but then the problem was with Cele and Mbukazi.

MS THABETHE: I'll leave this for argument because I thought your evidence was that Mr Mbukazi first went to the King and thereafter, after the King did not want to involve himself, then he arranged a meeting. I thought that was your evidence.

MR NGCOBO: The Induna Cele took Mbukazi to the Chief and the Chief said he was busy. After that they couldn't speak to the Chief.

MS THABETHE: I want to turn to Annexure A, paragraph 6, page 2 ...(intervention)

CHAIRPERSON: Exhibit A?

MS THABETHE: Exhibit A, paragraph 6.

... where you've indicated that a month before the elections, Mr Kwela and Sadam came to you to tell you that Mbukazi, Shandu and Cele were going to be present at a meeting. Did Kwela tell you what the meeting was going to be about?

CHAIRPERSON: Or Sadam.

MS THABETHE: Yes. Did any of them tell you what the meeting was going to be about?

Thank you, Mr Chair.

MR NGCOBO: No, they didn't explain to me, but all I knew at that time was that people wanted the Chief to come and address them because the community was facing a problem and every time whenever they reported their problems to the ZPs, the ZPs didn't do anything about it. Therefore, the community wanted the Chief to come and address them.

CHAIRPERSON: Sorry, Ms Thabethe.

Did Kwela say that he was going to go to the meeting himself?

MR NGCOBO: Yes, he did, he said he was supposed to be in that meeting, but then he also said it may happen that he won't be there but if he wasn't there he will send someone.

MS THABETHE: I'm getting a bit confused, Mr Ngcobo, my question was, did Kwela tell you what the meeting was about and I'm not sure what you're response was. Are you telling me what you thought the meeting was about, or are you telling me what Kwela told you what the meeting was going to be about?

MR NGCOBO: Would you please repeat your question.

MS THABETHE: In response to my question as to did Kwela tell you what the meeting was going to be about, you responded and then my question is, was your response what Kwela told you about or it's what you thought the meeting was going to be about.

MR NGCOBO: What I heard was that there's be talks about protection.

MS THABETHE: Okay. And did he say anything else about the meeting?

MR NGCOBO: ...(no English interpretation)

MS THABETHE: Kwela or any of the other people.

MR NGCOBO: You mean about the meeting?

MS THABETHE: Yes. Did they say anything else in regard to the meeting to you?

MR NGCOBO: Like what?

CHAIRPERSON: This is what she's asking you, was there anything said about it? Ms Thabethe doesn't know, she wasn't there, she's asking what was said about the meeting, what do you know about it?

MR NGCOBO: No, he didn't say anything to me about the meeting, he didn't even tell me who was going to speak in that meeting. All I heard about the meeting was that there were going to be peace talks or people will be talking to the Chief about the problems they are facing.

MS THABETHE: Did he ask you to attend the peace meeting?

MR NGCOBO: No, he told me that I should go to that meeting because sometimes they do call these meetings and ...(intervention)

MS THABETHE: So the answer is yes, it's not no?

INTERPRETER: Chairperson, can she please give me a chance. If she can ...(intervention)

CHAIRPERSON: Sorry, Ms Thabethe, you must wait, the translator hasn't finished. If you could wait please.

MS THABETHE: I'm so sorry, Mr Chair.

CHAIRPERSON: Sorry, Ms Translator, if you could just finish that sentence. I've got it "He told us that we must go ..." and then I got lost.

INTERPRETER: If she can please ask her question again so that I can get the answer from the applicant.

CHAIRPERSON: I think if you could just ask the question again so that it can be answered again.

MS THABETHE: I've just lost my line of thought, Mr Chair, if you can give me a minute.

ADV SANDI: You were asking him about going to the meeting, whether he asked him to go to the meeting.

MS THABETHE: Mr Chair, can I be of assistance? He said "No", but ...(intervention)

CHAIRPERSON: I think let's rather get it from the witness just in case it becomes an issue.

MS THABETHE: Okay.

CHAIRPERSON: Just repeat your question.

MS THABETHE: Did Mr Kwela or any of the other people instruct you to be at the meeting, to go and attend the meeting?

MR NGCOBO: Yes, Mkhize told me that I should be in that meeting.

CHAIRPERSON: Is that Vusimuzi?

MR NGCOBO: Yes, that's his name.

MR NGCOBO: To do what at this meeting?

MR NGCOBO: I was supposed to go there and guard, so that if there were people coming to attack, I'll be there to defend.

CHAIRPERSON: Sorry, Ms Thabethe. So on that, from what you've told us then Mr Ngcobo, is that you didn't obey those instructions, because what my understanding of your evidence is, is that Mr Mbukazi and Mr Shandu were coming to the place where the meeting was to be, with a group of other people, other people were there, more than 20 you say, and then you just fired at them. There wasn't any breach of the peace before you fired, you were the one to breach the peace by firing. That's not guarding, that's attacking. Why did you shoot Mr Mbukazi and Mr Shandu when your instructions were merely to go and guard the people in case there was trouble that started?

MR NGCOBO: Mkhize told me so, that I should guard there in case they do attack.

CHAIRPERSON: Yes, but they didn't attack, that's why I'm asking you why did you shoot them. You were only meant to be of any use there if there was an attack, but there wasn't, you were the one who attacked. That's why I'm asking you, why did you shoot those two gentlemen if they didn't attack? On your story that you've told us, they were merely walking, apparently unarmed, unexpecting any trouble, not expecting any trouble and you shot them. I wouldn't call that guarding.

MR NGCOBO: Yes, the reason I started firing at them it was because Mbukazi was there and I knew that Mbukazi was one person who was sending IFP to kill us.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: What about Mr Shandu?

MR NGCOBO: Shandu was killed because he was with Mbukazi.

MS THABETHE: Sorry, Mr Chair, I didn't hear the answer.

CHAIRPERSON: The answer was "Mr Shandu was killed because he was with Mr Mbukazi."

MS THABETHE: Is he the only person who was with Mr Mbukazi?

MR NGCOBO: No, at the time he wasn't but usually he was seen before with Mbukazi.

MS THABETHE: So why didn't you shoot the other ...(intervention)

MR MALAN: Sorry, Ms Thabethe.

But you told us you've never seen him before. You didn't know what his face looked like, you didn't know his name.

MR NGCOBO: Yes, I've never seen him before and I've never known his name, but what I heard was that he was seen, not by me, by others with Mbukazi. This is hearsay.

MR MALAN: Did you hear that before you shot him or after?

MR NGCOBO: I heard about this before I shot at him.

MR MALAN: Now what did they so to you, that there's usually a person with him, we don't know what he looks like and we don't know what his name is? How did they tell that Shandu was usually with Mbukazi? Or that the person who you later learnt was Shandu, whose face you didn't know, was indeed that person.

CHAIRPERSON: Taking into account the fact that one would imagine Mr Mbukazi was in the past, prior to his shooting, in the company of many, many people from time to time.

MR NGCOBO: At the time of the shooting I didn't know, but then all I heard was that Mbukazi was going to be with Cele.

MR MALAN: Just for my sake, to just get it clear here. If I understand your evidence correctly, it is that on the 21st of March, that's just more than a month before the elections, Sadam and Mashelela Kwela came to you, they told you about this meeting which was to be a peace meeting, to get the Chief closer to the community. It was a peace meeting and to get the Chief to assist the community resolving their problems, and Mkhize told you to attend and to guard, is that correct?

MR NGCOBO: Yes, this is what Mkhize told me.

MR MALAN: Now nobody told you to shoot anybody unless defending yourself when attacked.

MR NGCOBO: Sadam and Mashelela told me that Mbukazi and Cele should be killed, and also Shandu, even though I didn't know Shandu.

CHAIRPERSON: So now you're saying that you were sent there to assassinate Mbukazi and Nkosi Cele, not to guard? Is that what you're saying?

MR NGCOBO: Mkhize sent me to go there and guard and Sadam and Mashelela told me that I should go there and kill.

CHAIRPERSON: Sorry, Sadam and who, Kwela, told you that you should go there and kill? And also at the same time Kwela said that he might also go to the meeting.

MR NGCOBO: No, Sadam and Mashelela ...(intervention)

CHAIRPERSON: You've mentioned Mashelela, who is Mashelela now?

MR MALAN: Kwela.

CHAIRPERSON: Kwela. Sorry, Mr Malan.

So you're saying Mkhize said go and guard and then Sadam and Kwela say go and assassinate Mbukazi and Cele and then Kwela also says well he may also be going to the meeting?

MR NGCOBO: Yes, this is what Sadam told me and Kwela.

CHAIRPERSON: So why didn't you mention this instruction to go and assassinate people earlier, why do you only mention it now when Mr Malan's asking you questions?

MR NGCOBO: It is because I'm answering questions, like now I'm still answering questions.

CHAIRPERSON: Mr Malan?

MR MALAN: I have no further questions.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Just to make a follow-up on that, Mr Ngcobo. I want to put it to you that you're really not being truthful because I asked you what did they say to you and you said they told you to go and attend the meeting. I further asked you "Did they say anything else?" You said "No", they told you to go and guard the meeting and now you are changing. I'm putting it to you that you are not being truthful in front of this Committee. Do you want to respond to that?

MR DEHAL: I think that's marginally incorrect, in that Mkhize sent him to guard and the other two told him to kill.

MS THABETHE: No. Mr Chair ...(intervention)

CHAIRPERSON: Earlier he said that he was told by Sadam and Kwela to guard.

MS THABETHE: Mr Chair, my question was, what did Kwela say to him and I was corrected, that and others who were with him. Yes.

CHAIRPERSON: Anyway this is a question of argument I think, it can be argued whether he was credible on this point or not.

MS THABETHE: So Mr Chair, are you suggesting I don't ask him to respond on whether ...(intervention)

CHAIRPERSON: No, you can ask him, but you're basically just trying to confirm your argument, aren't you?

MS THABETHE: Okay Mr Chair, I'll move on.

Okay, my last question or my last aspect of questioning is with regard to Mr Shandu's car. From the judgment in Court there was evidence that Mr Shandu's car was found burnt and his watch gone and a wallet. Do you have any knowledge as to who did this?

MR NGCOBO: The only knowledge I had was not sufficient because we were still investigating. They were not supposed to do that, they were not supposed to burn his car and they were not supposed to take his watch, but then when this was investigated among us, we discovered that one person had taken a watch, the other has taken the wallet and someone has stolen the car and driven it somewhere and burnt it.

MS THABETHE: Do you know who did this?

MR NGCOBO: ...(no English interpretation)

MS THABETHE: And the wallet and the car?

MR NGCOBO: People who were suspected that they've taken this was Mkhize, Rambo, Monducele, Sibongseni.

CHAIRPERSON: Were these people comrades?

MR NGCOBO: Yes, they were comrades, they were ANC comrades. That's why we investigated, because it was one of us among ourselves.

MS THABETHE: Thank you, Mr Chair, I have no further questions.

CHAIRPERSON: Mr Dehal, do you have any re-examination?

RE-EXAMINATION BY MR DEHAL: Very briefly, Sir.

Mr Ngcobo, what's your level of education?

MR NGCOBO: Standard two.

MR DEHAL: And what's wrong with your left eye?

CHAIRPERSON: Is it his left eye or his right eye? I would say it's the right one.

MR DEHAL: Sorry forgive me, right eye, yes. Thank you.

And how did you come to lose it?

MR NGCOBO: I was struck by a stick.

MR DEHAL: Thank you, that is all.

CHAIRPERSON: Mr Malan, do you have any questions you'd like to ask?

MR MALAN: I just want to follow up on your question, if I - on your last answer to my earlier question. You say that, now, that Sadam and Mashelela Kwela ordered you to kill Mbukazi and whoever would be with them, or Shandu, is that correct? You were instructed or you were requested to kill him, you went out to kill him.

MR NGCOBO: I was instructed to do so.

MR MALAN: By Kwela?

MR NGCOBO: Yes, by Kwela and Sadam.

MR DEHAL: Now - and if I understand you correctly, in your earlier evidence you say that there indeed was a fight between the Kwelas and the Msomis, there was a conflict, an ongoing conflict.

MR NGCOBO: Yes, I did explain that Msomi attacked Kwela and when the reason for attacking Kwela was needed, it was never brought forward because the Chief was not interested.

MR MALAN: Yes. And further I understand that you were unhappy with Mbukazi because he was only listening to the Msomis, he wasn't listening to Kwela and helping Kwela and helping you people, is that correct?

MR NGCOBO: Mbukazi was our Induna, but then he never was interested in attending to your grievances, as his people or people under him.

MR MALAN: Was he protecting the Msomis?

MR NGCOBO: Yes, you can say so, you can say Mbukazi, Cele and the Msomis were working together because the Chief did ask us as to whether we were afraid of the Msomis and the Induna of the youth told the Chief that he wasn't supposed to say so because he is the Chief, he is supposed to solve problems, not to create problems for the community.

MR MALAN: And you had to kill Mbukazi for this reason, or why would Kwela and Sadam ask you to kill him? Was this the reason?

MR NGCOBO: This is how they saw it because I think what happened amongst all of us is that we realised that the Induna was the reason we had problems in the community, he was behind the killings in the community. They were supposed to solve these problems but the didn't bother.

MR MALAN: I'm trying to really help you to get to the bottom of this, but you must make up your mind. Did you kill him because you realised he was responsible for the problems, or did you attend a peace meeting under the specific instructions to kill him? Why did you kill him, did you kill him of your own accord or did you kill him because you were ordered? You must make up your mind now.

MR NGCOBO: I knew that he was a problem and I also heard from other people that he was a problem, he was the reason we were fighting.

CHAIRPERSON: Mr Malan's question was very straightforward, Mr Ngcobo, he's merely asking you - and if you can listen to the question, did you kill Mr Mbukazi because you were ordered to do so or did you kill him on your own volition, because you knew that he was causing trouble and you felt that he ought to be killed? What is the situation, were you ordered to kill him or did you do it yourself?

MR NGCOBO: I was instructed that I should kill him because of his participating with the IFP.

CHAIRPERSON: I take it from reading your statement, correct me if I'm wrong, you never received any training, military training, is that correct?

MR NGCOBO: No, I didn't go outside the country.

CHAIRPERSON: Well did you receive any training anywhere?

MR NGCOBO: No, I trained inside the country.

CHAIRPERSON: Who trained you?

MR NGCOBO: Sadam trained me on handling firearms.

CHAIRPERSON: Who is Sadam? What's his other name?

MR NGCOBO: I'll be lying, I only know him as Sadam.

CHAIRPERSON: Because in your statement, paragraph 4, you said -

That's the very bottom line of page 4 -

And then you say -

But you never say anything about being trained. I got the impression that you were wanting to be trained but it never happened.

MR DEHAL: I think he confined - sorry, Chair, he confined that aspect to 1981, which starts at the beginning of paragraph 4. And in paragraph 4 it deals with the events of 1981.

CHAIRPERSON: Alright. So in other words you say you ...(intervention)

MR NGCOBO: No, I never went outside the country to be trained, but I was trained inside in the handling of weapons.

CHAIRPERSON: And you got your ANC membership card in 1981?

MR NGCOBO: No, no I didn't get it 1981, I think I only received it in 1993.

CHAIRPERSON: So this paragraph doesn't confine itself to 1981.

MR MALAN: If I may just come back to this date.

Mr Ngcobo, you were 12 years old, going on 13, could you read all this ANC literature when you were 12 years old? Are you not majorly mistaken with this date?

MR NGCOBO: In 1981, it was my first time gaining knowledge about the ANC, not that I was reading the literature.

CHAIRPERSON: Who was the Chairman of the ANC in Engonyameni, in 1994?

MR NGCOBO: At the time we didn't have a branch but we were using another branch. They were still going to open a branch at that time.

MR MALAN: This was a week before the elections, you're sure there was no branch? - a month before the election.

MR NGCOBO: No, it was not launched, they were still constructing that. We were using another one.

MR MALAN: Just a last question. Sadam, did he work for Kwela, for Mashelela Kwela?

MR NGCOBO: No, I wouldn't say he was working for Kwela, the only association was because Sadam was also an ANC and Kwela was also an ANC, and Sadam was the person we usually sent him to the ANC offices. If we needed anything, we will send Sadam.

MR MALAN: What was Sadam's job, what did he do for a living?

MR NGCOBO: He was our leader, our SDU leader in the area.

MR MALAN: But in paragraph 7 you tell us that Kwela was the Commander of the Unit. You refer to it as an MK Unit and then later on you talk of it as SDU.

MR NGCOBO: Sadam and Kwela were our leaders. If one wasn't present, then we know we will contact the other one.

MR MALAN: Thank you, Chair.

ADV SANDI: Yes, but explain this, who told you that Kwela was the MK Commander?

MR NGCOBO: No, no-one told me that he was an MK Commander, but he was our Commander, not MK Commander.

ADV SANDI: Is that what he told you? Did he say to you he was your Commander, or you just concluded that he must have been your Commander?

MR NGCOBO: Do you mean him?

ADV SANDI: Yes, Kwela.

MR NGCOBO: Sadam told me that Kwela was the Commander.

ADV SANDI: Do you know if Kwela had a vehicle?

MR NGCOBO: No, I do not know, I've never seen him driving a car.

ADV SANDI: And Sadam?

MR NGCOBO: No, Sadam didn't have a car. Even if he had it, I've never seen him driving a car.

ADV SANDI: And Mkhize?

MR NGCOBO: No, he didn't have a car.

ADV SANDI: Okay, thank you. Thank you, Chair.

MR MALAN: Just following an answer to Mr Sandi's question. You were told by Sadam that Kwela was Commander.

MR NGCOBO: Yes, Sadam told me that ...(intervention)

MR MALAN: You were not told that he was an MK Commander, just that he was Commander?

MR NGCOBO: No, he didn't specify whether MK Commander or what Commander, he just said Commander.

MR MALAN: So you were not a member of MK?

MR NGCOBO: No, I wasn't because I never went outside the country to train as an MK. I think MKs are people who are trained outside South Africa, who are well trained in weapons and ...(intervention)

MR NGCOBO: You see that's really our problem, that everything tends - let me rephrase it, if you read the judgment and if you listen to the cross-examination and the position of the families, what is put before us is that you were part of one gang, of Kwela's gang, who had a fight with the Msomi gang. You in your statement lead us to believe that you acted as an ANC, that it was an IFP/ANC conflict. Then, you even tell your attorney that you were a member of MK, that you were a member of a unit, you tell us that Kwela was the Commander of your MK Unit, you read the statement, you confirm the truth and the correctness of the contents, then you back off. A last final question, were you a member of Kwela's gang, in the fight against the Msomis, or were you really involved in the structures of the ANC or MK?

MR NGCOBO: I was never a member of Kwela's gang, I've always been a member of ANC.

CHAIRPERSON: Mr Ngcobo, I gather from your statement here that you intentionally shot Mr Shandu, is that not so? 'Cause you said you fired two shots at Mr Mbukazi and you fired on shot at Shandu. So you shot at Mr Shandu, intending to hit him with the bullet? Is that correct?

MR NGCOBO: I didn't intend to kill him.

CHAIRPERSON: Yes, but you intended to shoot at him, because here I read it, it's paragraph 8, page 3 of Exhibit A -

There you say it, you fired two shots at Mr Mbukazi and one at Mr Shandu. The impression given to me is that you shot at Mr Shandu, not so? And earlier in your evidence you say that you shot at him because you heard before that he was hanging around with Mr Mbukazi and you assumed that he was a member of the IFP or a supporter because he was with Mr Mbukazi and that is why you shot at him. Are you saying now that you didn't intend to shoot at him at all or are you saying that you intended to shoot at him? Just let's get that clear.

MR NGCOBO: Yes, I shot at him because I thought he was a member of IFP, or supporting IFP.

CHAIRPERSON: Yes, but you weren't instructed to shoot at him?

MR NGCOBO: Mashelela and Sadam told me to shoot at him as well.

CHAIRPERSON: At Mr Shandu as well? So they said to you, Ngcobo, go to the meeting, go and kill Cele, Mbukazi and that other unknown person whose name I don't mention to you who has of recent times been seen in the company of Mr Mbukazi, is that what they said to you?

MR NGCOBO: Yes, that's how they explained to me because I didn't know Shandu, the only people I knew when I went there was Cele and Mbukazi.

CHAIRPERSON: Now you're saying that you were instructed also to kill a person who was recently seen to be in the company of Mbukazi, who as we now know turned out, unfortunately, to be Mr Shandu.

MR NGCOBO: I wouldn't say they couldn't give me the description but they didn't do so, but maybe they knew him and they could have gave me the description.

CHAIRPERSON: Did you shoot at Cele?

MR NGCOBO: Cele never used to attend meetings, he liked telling people that he will attend a certain meeting and he wouldn't be there. So even this day he was expected to be there, but he didn't show up, as usual.

CHAIRPERSON: Yes, thank you. Any questions arising, Mr Dehal?

FURTHER EXAMINATION BY MR DEHAL: Just one aspect, Chair.

Mr Ngcobo, you mentioned in response to the Chairperson's question, that "They would have given me description", would that have been a description of Mr Shandu? And if they did, what description did they give you?

CHAIRPERSON: No, I think my understanding was that he said he doesn't know whether they could have given him a description, but the didn't.

MR DEHAL: Oh, I see. Thank you. I have no questions then.

CHAIRPERSON: Mr Panday?

FURTHER CROSS-EXAMINATION BY MR PANDAY: Mr Ngcobo, how did you identify Mr Shandu, because there were 20 other people there.

MR DEHAL: He answered this at length, I think repeatedly he said just as a person who was in the company of Mbukazi.

CHAIRPERSON: No, he said that when Mbukazi arrived there were about four or maybe about six of them, as they came.

How then did you particularly choose to shoot at Mr Shandu, when there were four, maybe five other people in the close company of Mr Mbukazi at that time of the shooting?

MR NGCOBO: Among the people who were there with Mbukazi, he was the one that I didn't know and he was with Mbukazi and I thought he was going to shoot because I saw him. Maybe he was taking a cover or what, but I thought he was going to shoot.

MR PANDAY: You said you thought he was going to shoot. What cover was he taking?

MR NGCOBO: When I approached he moved and he put his hands in his jacket. I don't know whether he was trying to pull up his trousers or not, but I scared, I thought he was trying to reach for a firearm or something.

MR PANDAY: Mr Ngcobo, you mention that you reported to the other branch, ANC branch, where was this branch?

MR NGCOBO: Sisi.

CHAIRPERSON: Sorry, what was that word? S-i-s-i, Sisi?

MR NGCOBO: C as in C alphabet, CC.

MR PANDAY: And where is this place, CC, how far is it from Engonyameni?

CHAIRPERSON: It's CC, like ...(intervention)

MR NGCOBO: It is an area and it has now been taken by a farmer, but it is in one area, Esidweni.

MR PANDAY: Just to confirm, Mr Ngcobo, your attorney put to the Commission that you have a standard two education and you confirmed that, is that correct?

CHAIRPERSON: I think he's confirmed it, it was accepted.

MR PANDAY: Now when did you obtain this standard two level of education? What year did you obtain this standard two level of education?

MR NGCOBO: I don't quite remember?

MR PANDAY: Was it before '92?

MR NGCOBO: Before 1992.

MR PANDAY: Before 1981? Was it before 1981?

MR NGCOBO: No, after 1981, I think maybe in 1984 or 1985, somewhere there.

ADV SANDI: What standard of education did you have in 1981?

MR NGCOBO: I don't remember because there were years which I didn't attend school and then I went back.

MR PANDAY: Thank you, Mr Chairman, nothing further.

CHAIRPERSON: Thank you. Ms Thabethe, any questions arising?

MS THABETHE: No questions, Mr Chair, I'm ready for argument.

CHAIRPERSON: Thank you, Mr Ngcobo, that concludes your testimony.

CHAIRPERSON: Are you going to be leading any further witnesses, Mr Dehal?

MR DEHAL: None, thank you Chair.

CHAIRPERSON: Mr Panday, are you going to be calling witnesses?

MR PANDAY: Yes, Mr Chair, it's just the son of Mr Mbukazi.

CHAIRPERSON: I wonder if this wouldn't be a convenient time to take a very short lunch adjournment.

MR PANDAY: As Mr Chairman pleases.

CHAIRPERSON: Yes, because it's been a long run. We'll adjourn for quarter of an hour and then we'll resume with the evidence to be led by Mr Panday, because we're told we have to be out of here by half past two.

MR PANDAY: Thank you.

CHAIRPERSON: We're going to take a short lunch adjournment.

CHAIRPERSON: Mr Panday.

MR PANDAY: Thank you, Mr Chairman. Mr Chairman, the witness on behalf of the victims, we call Mr O M Mbukazi. That is the son of the Induna, Mr Mbukazi.

CHAIRPERSON: Thank you. Mr Mbukazi, what are your full names please?

MR MBUKAZI: Vanyise ...(intervention)

CHAIRPERSON: Sorry, Vanyise?

MR MBUKAZI: Vanyise(?) Osmond ...(indistinct)

MS THABETHE: The spelling is on page 20 of the bundle.

VANYISE OSMOND MBUKAZI: (sworn states)

CHAIRPERSON: Thank you. Mr Panday?

EXAMINATION BY MR PANDAY: Thank you, Mr Chairman.

Mr Mbukazi, is it correct that you are 43 years of age and residing in Umlazi township?

MR MBUKAZI: That is correct.

MR PANDAY: Is it also further correct that you are the son of the late Mr Mbusilelwa Petros Mbukazi?

MR MBUKAZI: Yes, I am.

MR PANDAY: That he was killed by the applicant?

MR MBUKAZI: Yes, that is correct.

MR PANDAY: Mr Mbukazi, I'm going to show to you pages 17, 18 and 19 of the bundle, that's hand-written. Can you confirm that this affidavit is the affidavit that was drawn up on behalf of you?

MR MBUKAZI: That is correct.

MR PANDAY: And that pages 20 to 21 are a mere typed version of that hand-written affidavit?

MR MBUKAZI: That is correct.

MR PANDAY: Mr Mbukazi, I'm going to refer to paragraph 4 of that affidavit, or firstly, paragraph 2 of the affidavit on page 20, where you state that the adult males in the area, namely Mashelela Baba Kwela and Silwane Msomi, were involved in a taxi business at Isipingo taxi rank, is that correct?

MR MBUKAZI: That is correct.

MR PANDAY: And how such knowledge within your knowledge?

MR MBUKAZI: There was a problem that there was rivalry because of this at the ranks.

CHAIRPERSON: Sorry Mr Mbukazi, just for us who don't know. Isipingo, about how far away is that from Engonyameni?

MR MBUKAZI: They are very close to one another because it is about 20 k's. There was a problem that they were in competition for the ranks, taxi ranks and they were residing at Engonyameni at the time.

CHAIRPERSON: Yes, thank you. Mr Panday?

MR PANDAY: Thank you.

Mr Mbukazi, you mentioned that there was a problem at the taxi ranks between these two parties, Kwela and Msomi, how did you know of this knowledge? How did you know of this information?

MR MBUKAZI: It all started in 1992, where the fighting between Mr Kwela and Mr Msomi started. There were means that were attempted to reconcile them, but these were unsuccessful because on the 15th of May 1992, the war started. That was on a Saturday.

MR PANDAY: This war, was it only as a result of the taxi rivalry?

MR DEHAL: Sorry, that's a leading question, I think you should not lead him into it.

CHAIRPERSON: Yes. What was the cause of the war?

MR MBUKAZI: It was that rivalry about the taxi rank.

CHAIRPERSON: Did the war have any political element to it?

MR MBUKAZI: It did not involve politics.

CHAIRPERSON: Mr Panday.

MR PANDAY: Now Mr Mbukazi, is it correct that your father was the Induna of the Engonyameni area?

MR MBUKAZI: My father was the Induna.

MR PANDAY: How long was he the Induna for?

MR MBUKAZI: If I'm not mistaken, from 1975.

MR PANDAY: And during the period 1992, around that period, was there anyone else besides him that was Induna before him?

CHAIRPERSON: Before or with him at the same time.

MR PANDAY: Before or with him at the same time.

MR MBUKAZI: My father became the Induna after the death of his in-law.

CHAIRPERSON: But I think what Mr Panday is referring to, in the evidence of the applicant - did you hear the evidence of the applicant, Mr Mbukazi?

MR MBUKAZI: ...(no English interpretation)

CHAIRPERSON: Sorry, did you hear the evidence of the applicant?

MR MBUKAZI: ...(no English interpretation)

CHAIRPERSON: Sorry, I'm not getting the interpretation through.

INTERPRETER: He says that - maybe you should repeat.

CHAIRPERSON: Did you hear the evidence of the applicant? When the applicant gave evidence, did you hear it?

MR MBUKAZI: Yes.

CHAIRPERSON: Now the applicant was talking about there being another Induna, did you hear that part? - besides your father.

MR MBUKAZI: Maybe Mr Ngcobo is referring to the Izinduna Zizwa who are in charge of the youth.

CHAIRPERSON: Yes, thank you. Mr Panday.

MR PANDAY: Now Mr Mbukazi, in paragraph 4 of your affidavit you make mention that a Mr Shandu was working for a Peace Committee, is that correct?

MR MBUKAZI: That is correct.

MR PANDAY: Now what was the relevance of Mr Shandu coming to the Engonyameni area with this Peace Committee?

MR MBUKAZI: He came because of the problems that were prevalent in the area, because there had been meetings that had been called but were not materialising and at the same time people were continuing to die.

CHAIRPERSON: Sorry, Mr Mbukazi, at that time was there political conflict in the area, particularly between IFP and ANC, as there was in many, many areas of ...(intervention)

MR MBUKAZI: At that time there was not even a branch of either the ANC or the IFP in the area.

CHAIRPERSON: So when you say that he came because of the problems in the area, are you referring then to the taxi problems?

MR MBUKAZI: Yes, that was the war that was going on.

CHAIRPERSON: Mr Panday.

MR PANDAY: Mr Mbukazi, is it correct to assume that the only reason for this Peace Committee being, peace meeting and the Peace Committee member attending, was to address the issue of the violence to the taxi rivalry?

MR MBUKAZI: The reason for calling on Mr Shandu to assist was because many people had fled the area. My father continuously tried to call meetings, but most people did not attend and as such the problems were not solved. My father was then forced to approach Mr Shandu to try and convene a meeting of the warring factions.

MR PANDAY: What caused the people to flee from the area?

MR MBUKAZI: The war started in 1992, after a person had been killed. Even my father at some point had to flee the area because he was fearing for the life of himself and his family.

MR PANDAY: Now Mr Mbukazi, just one more question. In your affidavit you mention that you reside in Umlazi township, now this Engonyameni area you mention is what, 20 kilometres away, now how is it that you - how was all this information made available to you as to what was going on in the Engonyameni area?

MR MBUKAZI: As I mentioned before, my father was in charge of that area and we were in continuous contact with my father. Also, in 1992 my father fled the Engonyameni area and came to live with us at U-Section, Umlazi, but he would go back at intervals to the Engonyameni area to try and convene those meetings for the peace process to commence.

MR PANDAY: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Panday. Mr Dehal, do you have any questions you'd like to ask Mr Mbukazi?

CROSS-EXAMINATION BY MR DEHAL: Thank you, Sir.

Mr Mbukazi, were you present at this meeting when your father was shot dead?

MR MBUKAZI: I was not present.

MR DEHAL: So you cannot tell what happened at that meeting because you were not there, you did not see anything? And if you do testify, it would relate only to what was told to you.

MR MALAN: But did he give any testimony? Is this relevant? - on what happened at the meeting.

MR DEHAL: His affidavit seems to draw the inferences from the various paragraphs, that is 2, 3, 4 and 5 and in paragraph 6, whilst he confirms that he doesn't know of their political affiliations ...(intervention)

CHAIRPERSON: I think Mr Dehal, it's quite obvious that is he says he wasn't at the place and time when his father was shot, that anything that he knows about is what he was told.

MR DEHAL: I accept that.

CHAIRPERSON: We've got no evidence that there were any videos taken or anything. So take that as being said.

MR DEHAL: Thank you, Sir.

And I see that in paragraph 6 of your affidavit you say that you are unable to comment on your father's political affiliation and the whole, and apart from that you're still against the amnesty application.

MR MBUKAZI: I mentioned before that at that time there was not even a branch of either the ANC or the IFP, it was just a fight between two Indunas, Msomi and Kwela.

MR DEHAL: Why did your father flee from the one area to your home in Umlazi?

MR MBUKAZI: I explained that the war started in 1992, where one of my brothers was killed. My father survived that attack. The situation was so bad that everyone was fleeing from the area, he also had to do the same.

MR DEHAL: And why was your brother killed, what led to his killing?

MR MBUKAZI: When the war between Msomi and Kwela started, people supported one of the two persons and the war started in that sense and my brother was killed in that war, on the 15th of May 1992.

MR DEHAL: Would it be correct to say that your father was an IFP member and supporter?

MR MBUKAZI: I am not in a position to comment on that, but what I know is that the area that he was in charge of, was not a politically active area. What I do know about my father is that he was not a member of a political party.

MR DEHAL: You're a fairly senior man, you're 42 years of age if I recall that correctly, in 1992 you lived in Umlazi, which was a very short distance away from this area that your father live in. Umlazi itself was fraught with division between the ANC and IFP and this had spilled over into the surrounding areas. You can't dispute that can you?

MR MBUKAZI: Let me state again that the war that started in 1992 at Engonyameni, involved two persons, Msomi and Kwela and they both had their supporters, but it did not involve politics. There was no IFP or ANC.

MR DEHAL: Well that's exactly what I'm addressing. My question is different and you're not answering my question. In the Umlazi area that you live in, there was growing tension and an issue between the two main factions, the ANC and the IFP. You must agree that this was present and that this spilled over into the adjacent outlying areas, including the area where your father was. Everybody who lived in South Africa at the time knew this.

MR PANDAY: Sorry, Mr Chairman. If there can be some direction as to where this question is heading. The entire country experienced political problems, logically ...(indistinct) that Umlazi would have. Now the witness has answered that the violence in that area was not politically motivated.

MR MALAN: I wonder, Mr Mbukazi, the question put you was simply "Was there tension and violence in Umlazi, where you were staying?" I think answer that question and get it over with. Between IFP and ANC in Umlazi, that's the question.

MR MBUKAZI: There were areas that were fraught with violence in Umlazi, but not in Engonyameni area.

MR DEHAL: You see, that's the whole point. I put it to you that you can't possibly contend, as you would like this Committee to believe, that in the area your father lived in, the violence was confined to a taxi violence. That you must have known and ought to have known firstly, as a South African citizen, secondly as an adult ...(intervention)

MR MALAN: Please wouldn't you ask him what he knows. As a South African citizen I didn't know that.

CHAIRPERSON: Yes, I didn't either, I've only heard of Engonyameni for this first time today. So as a South African citizen I don't think it can be said that he must have known that there was political violence in that area. And I'm also a citizen.

MR DEHAL: Thank you, Sir.

You were close to your father, you said when he fled he came to seek refuge in your home. I don't accept for one moment that you knew that the violence in your father's area was confined to a taxi violence. You either did not know that, you either did not know better or you're really not telling us the whole truth.

MR MBUKAZI: I did state before that my father was the Induna at Engonyameni and the problems that started in 1992 were between Msomi and Kwela. And at that time there was not even a branch of either of these political parties, where they go hold rallies and such.

MR DEHAL: Not even a branch of the IFP, I assume.

CHAIRPERSON: He said there wasn't a branch of either ANC or IFP, in the area.

MR DEHAL: How long before your father died did you meet with him?

MR MALAN: With who, with his father?

MR DEHAL: Yes.

MR MBUKAZI: Please explain your question because I'd already mentioned that my father fled the Engonyameni area in 1992, to live with us at Umlazi. I would like to know what are you referring to.

CHAIRPERSON: I think - correct me if I'm wrong, Mr Dehal - when did you last speak with your father? Is that what -

Yes, when did you last speak with your father? We know that he got killed on the 21st or the 22nd of March 1994, when did you last speak to him?

MR MBUKAZI: Before the date of the 23rd of March, the date on which he was killed, I would say it was my mother who received the message.

CHAIRPERSON: Yes, but when did you last speak with your father when he was alive, you yourself?

MR MBUKAZI: I had last seen him about a week before.

MR DEHAL: And did you and your father discuss the imminent peace meeting that you talked about, at which he was killed?

MR MBUKAZI: The meeting was convened shortly before his death ...(intervention)

CHAIRPERSON: Mr Mbukazi, the question is - if you could just listen to the question. The question was very straightforward, it was "When you saw your father the week before, when you last discussed with him, did you discuss about the peace meeting that was to take place on the 23rd of March? It's either yes or no.

MR MBUKAZI: No, we did not.

MR DEHAL: And did you know the applicant before your father's death?

MR MBUKAZI: No, I did not know him, I'm just happy to see him today.

MR DEHAL: Is this the first time you've come to meet him?

MR MALAN: That was his answer.

CHAIRPERSON: He said he was happy to see him today. He might have seen him at the trial, I don't know.

MR DEHAL: Thank you.

Mr Ngcobo wants to reconcile with you and your family, he would like to make peace with you, he said so in his application, would you have any objections to that? Would you be prepared to meet with him?

MR MBUKAZI: For me it is a problem because as much as he is seeking amnesty but he's not being entirely truthful and he is explaining the problems in the area in a political light whereas they were not political.

MR DEHAL: Thank you, Chair, that is all.

CHAIRPERSON: Thank you. Ms Thabethe, do you have any questions?

MS THABETHE: No questions, Mr Chair.

CHAIRPERSON: Do you have any re-examination, Mr Panday?

RE-EXAMINATION BY MR PANDAY: Just one question, Mr Chairman.

Mr Mbukazi, how did you know that there was going to be a peace meeting in the Engonyameni area?

MR MBUKAZI: I received that information from my mother after my father had been killed. She informed me that Mr Shandu had arrived to inform my father of a meeting that was going to be convened, so that the people who had fled the area could return to their homes.

MR PANDAY: Thank you.

CHAIRPERSON: Mr Malan, do you have any questions you'd like to ask?

MR MALAN: No questions, thank you.

CHAIRPERSON: Mr Sandi, do you have any questions?

ADV SANDI: No, no questions, Chairperson.

CHAIRPERSON: Mr Mbukazi, thank you very much, that concludes your evidence.

CHAIRPERSON: Mr Panday, do you have any further evidence?

MR PANDAY: No Mr Chairman, just that there is a second witness but her evidence can be confined to the affidavit in address, because it merely confirms the evidence given by Mr Mbukazi.

CHAIRPERSON: Yes, thank you. That then concludes the evidence in this matter. Mr Dehal, do you wish to make any submissions?

MR DEHAL: Thank you, Sir.

Just to begin with, page 25 of the bundle which is the supporting affidavit by Siphiwe Pearl Shandu, I don't know why she was not called but there are aspects in it that ...(intervention)

MR PANDAY: Well if it's going to be a problem we might as well get the evidence of Ms Shandu. Unless Mr Dehal wants to address the aspects with us first.

CHAIRPERSON: What page is that, Mr Dehal?

MR DEHAL: Sorry, page 25. I'm not seeking that she be recalled or called, I'm simply saying that I don't know what weight would be attached to this, Mr Chairperson, if you recall we ...(intervention)

CHAIRPERSON: Yes, of course it would be far less weight than if she were to give evidence. I don't know what Mr Panday, what you want to do.

MR PANDAY: Well in the circumstances then, Mr Chairman, then we'd call Ms Shandu, because Ms Shandu is merely going to state that her father was obviously a peacekeeping official.

CHAIRPERSON: Well in short you can call her is you wish, it's up to you.

MR MALAN: Is that in dispute? I mean, isn't it ...(intervention)

MR DEHAL: There's none.

MR MALAN: I don't know why Mr Dehal wants the witness there.

MR DEHAL: No sorry, I've made it very clear I have never asked for the witness, I'm simply saying what weight is going to be attached.

CHAIRPERSON: Yes, it just depends, it would be on this question of whether it was factions or politics. I think - it's up to you, Mr Panday. If you want to call her you're at liberty to do so, we don't want to prevent anything. You know as well as we do that the weight of an affidavit untested, is far less than that of tested evidence.

MR PANDAY: Yes, Mr Chairman. In the circumstances I'll now call Ms Shandu, Mr Chairman.

CHAIRPERSON: Yes, is Ms Siphiwe Pearl Shandu here?

SIPHIWE PEARL SHANDU: (sworn states)

CHAIRPERSON: Thank you. Mr Panday?

EXAMINATION BY MR PANDAY: Thank you, Mr Chairman.

Ms Shandu, I'm going to show you pages 22, 23 and 24 of the bundle of documents that we all have, that is hand-written. Do you confirm that this is an affidavit that was taken down on behalf of you?

MS SHANDU: Yes, I do.

MR PANDAY: And that page 25 is a mere typed version of the affidavit.

CHAIRPERSON: Translation.

MR PANDAY: Typed and a translation.

CHAIRPERSON: ...(inaudible - no microphone)

MS SHANDU: Yes.

MR PANDAY: Ms Shandu, is it correct that you are an adult female, residing at 27 Vasco da Gama Drive, Doomside?

MS SHANDU: Yes, I do.

MR PANDAY: And you are the daughter of the late, Mr Izak Shandu.

MS SHANDU: Yes, I am the daughter of Mr Izak Shandu.

MR PANDAY: Ms Shandu, is it correct that your father was a peacekeeping official, as reflected in paragraph 2 of your affidavit?

MS SHANDU: That is correct.

MR PANDAY: And how long has he been a member of the peacekeeping committee?

MS SHANDU: He started working for the Peace Committee in 1993, and he died in 1994.

MR PANDAY: And what was the purpose of him being employed by the Peace Committee?

CHAIRPERSON: Well I think we know, we don't have to have evidence on that. Members of the Peace Committee, it was prior to the elections, there was lots of troubles all over the place and their job was to try to keep the peace.

MR PANDAY: Thank you, Mr Chairman.

CHAIRPERSON: Or at least monitor it ...(inaudible)

MR PANDAY: Ms Shandu, in paragraph 4 of your affidavit you indicate that your father communicated with the tribal Induna, Mr Mbukazi, who had called up a meeting between two factions to attempt a peace settlement. Now how is such knowledge within yourself?

MS SHANDU: My father would normally inform us of meetings that he was going to attend, even though he had not informed us of this particular meeting, we learnt of it after his death, that he had been sent to that area of Engonyameni.

MR PANDAY: And when did you hear of the reason for him going to Engonyameni?

MS SHANDU: On the say that we learnt that he was killed and that was when we learnt of why he had been sent to Engonyameni.

MR PANDAY: And were you informed as to what sort of issue he was going to address in this area, what sort or problems he was going to address in this area?

MS SHANDU: It was not explained to us but we learnt later that he had been sent there because of the taxi violence in that area.

MR PANDAY: And who did you learn this information from?

MS SHANDU: It was the police who informed us, the same police who told us about his death.

MR PANDAY: Thank you, Ms Shandu, nothing further.

CHAIRPERSON: Mr Dehal?

CROSS-EXAMINATION BY MR DEHAL: Thank you, Sir.

Ms Shandu, why are you opposing the application for amnesty?

MS SHANDU: From his evidence, Mr Ngcobo states that he does not know Mr Shandu and he has no reason why he killed him. He only received information from other people and he did not verify it. That is why we do not forgive him.

MR DEHAL: In paragraph 5 of this affidavit your say -

That's the last sentence, sorry.

How do you know that?

MS SHANDU: That was the information that we received from the police, because we didn't know what had happened. We first learnt of my father's death from other people, then the police came later.

MR DEHAL: It seems obvious, but let me just ask it. You were not present at the grounds?

MS SHANDU: That is obvious.

MR DEHAL: You say your father was an IFP follower, was he a card-carrying member of the IFP and known supporter of the IFP?

MS SHANDU: I am not certain of his card status because I'd never seen it.

MR DEHAL: Did you know whether the Induna was a member of the IFP?

MS SHANDU: I had never seen the Induna before, I don't know anything about him.

MR DEHAL: Thank you, that is all, Chair.

CHAIRPERSON: Thank you. Ms Thabethe?

MS THABETHE: No questions, Mr Chair.

CHAIRPERSON: Thank you. Mr Malan?

MR MALAN: No questions.

CHAIRPERSON: Mr Sandi?

ADV SANDI: No questions.

CHAIRPERSON: Thank you very much, Ms Shandu, that concludes your evidence, thank you.

CHAIRPERSON: Mr Dehal?

MR DEHAL IN ARGUMENT: Thank you, Sir.

Mr Chairperson, it appears abundantly clear that there is substantial difficulty in the application for amnesty relative to Mr Shandu. I want to begin by conceding that the nature of the testimony adduced in support of the prior knowledge, the intelligence gathering, if one may term it that, and the basis rational for the execution of Mr Shandu appears so thin that I cannot, sitting here, support that as being well founded.

That however, cannot be said of Mr Mbukazi. Mbukazi it seems on the applicant's knowledge, was well-known as a person who featured prominently in IFP circles, one that was troublesome in the area, was identified as a legitimate target, one that caused lots of problems. His arriving at the meeting appeared principally with the objective, one, pointedly to execute Mr Mbukazi and that he did. Whether he did that on the instructions of those two gentlemen he spoke of, or whether he did so out of his own volition, appears at the moment not as relevant as the fact that he indeed identified Mbukazi within the realms of the circle that he belonged to politically, as a legitimate target and indeed executed him.

To that extent I respectfully submit that his application falls within the purview of Section 20(1) of the Act. He has made full disclosure in that regard, he has a political lineage. I submit respectfully that he's not trying to criminalise that aspect. If you, Mr Chairperson, has regard to the bundle and if you look in particular at the loss the judge was, Judge Hugo, at understanding why this happened, if you now fit in that little aspect about political aspects, you will then see that the judge would not have had any difficulty had he seen this or had he known this.

In the judgment, on pages - sorry, if I may just get those pages, sorry, it's on page 42 and 43, that's the judgment on the sentence, at lines 25, 27 downwards the judge says -

Now if I may just pause there. It is well known in South Africa that even if you fell within peace circles, in South Africa in 1992, so fraught, so divisive was the political ...(intervention)

CHAIRPERSON: '94.

MR DEHAL: Sorry, '94. ... even in '94, so fraught with division was South Africa, especially between the two major parties, the ANC and the IFP, that peace-keepers were looked at by different members of the community in different perspectives. I mean ANC people looked at some peace-keepers as being IFP and therefore not impartial. Mr Gashu(?) Buthelezi as part of the IFP, constantly complained about some peace-keepers as being pro-ANC. So we have problems of this sort on and on.

Then the judge goes on saying -

Then the judge goes on in the next paragraph to say, in the middle thereof -

Now it seems that the judge here was respectfully cognisant of the political background and that killing of this sort within the broader spectrum, must have had a political tinge. He then adds at the bottom of that, at lines 24 onwards -

Now that is correctly stated, but tinged within that statement is the inevitable relating to the political problems that we face in this country. ...(intervention)

MR MALAN: Is that not prefaced by his upbringing, his background, his impoverishment, his bad education and no reference whatsoever to the political, Mr Dehal?

MR DEHAL: The first paragraph is, yes, because the judge then ...(intervention)

MR MALAN: No, I'm referring to the one that you've just read.

MR DEHAL: Indeed, correct. Sorry, we got ...(intervention)

MR MALAN: You may proceed.

MR DEHAL: Within the context of the judgment itself which begins at page 31, the learned judge begins by talking of peacekeeping, talks of the two factions, but throughout the judgment I've got various underlined phrases and paragraphs where the judge is at a loss to understand why this type of ...(intervention)

CHAIRPERSON: And in fact he says he seems to a motiveless thing, he's at a loss, yes.

MR DEHAL: Precisely. Thank you.

So apart from that I cannot take, as I said, the Shandu matter I cannot take any further, the Mbukazi matter I submitted, is supported. The reverse, flip side of that coin is that we've had two people called to oppose this application. On behalf of Shandu of course I can't take it further because apart from there being no real content in the opposition, the application itself is substantially fatal. So to criticise that doesn't help me.

But insofar as Mbukazi is concerned, I respectfully submit that the person who was called, the witness, Mbukazi's son, does not take the matter any further. In fact on the contrary, his testimony can't reasonably be regarded as acceptable. He was at pains to confine the violence to that between the two factions.

In that year people in South Africa know how divided South Africa was, how the violence was at an endemic level and how at great pains the country's police were failing to abate the violence. That the violence was indeed between the political factions and not - sorry, and that indeed there was violence amongst the taxi people, but that the taxi violence was associated with the political violence. To now come to this forum and say there was no political violence, but purely and crisply and clinically a taxi violence, is to be facetious. Thank you.

CHAIRPERSON: Thank you, Mr Dehal. Mr Panday?

MR DEHAL IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, the applicant would like us to believe that the murders of Mr Mbukazi and Mr Shandu were of some political motivation, namely that of Mr Mbukazi. Mr Shandu's killing, as his representation has indicated, he's fallen fatally short of and one doesn't need to delve too much in that to address this Committee. That is self-explanatory.

But now, with regard to Mbukazi, for the submissions to be made that surely when there was taxi violence, that eventually impinged on there being a political influence on this violence and it changed the essence of the violence, that Mr Chairman, one cannot agree with. The judge was quite clear in his judgment that there were two gangs, the Kwelas and the Msomis, the judge made no mistake by indicating that there were two political parties, the Kwelas and the Msomis. And one must never see the Kwelas and the Msomis as two political parties because they are mere, they could have been only followers of parties. But this violence, it has been clear, it has been undisputed and even the son of Mbukazi that explained to the Committee that the community knew there was violence in the area, this violence was caused by taxi rivalry. There was no indication that there was a political reason for this violence.

And the peacekeeping was called to address violence in the country. One may have, one would like to think that this peacekeeping was called to address political violence, called to address that sort of violence, but that is not the case, it was purely gang related.

And the judge, as you said, was at a loss in trying to establish a motive, but it's the applicant today that actually assists us by tying the knot between the Kwelas and the Msomis. It is accepted that the Kwelas and the Msomis were gangs. Now in court it was not adduced that these may have been political families or political parties. Now by the applicant's own fault he implicates himself with the Kwelas, he implicates himself with a gang not a political movement.

He at one stage didn't know who he was taking instructions from, whether it was Kwela, whether it was Sadam or whether it was Mkhize. One minute he has to guard, one instruction is to guard, another instruction is to attack Mbukazi and Cele and Mr Shandu. He doesn't know who his parties are. Now the court's accepted that Kwela and the Msomis were gangs and the only inference that can be drawn is that the applicant was a member of the gang, not a political movement, not a political party.

In his evidence as well his education is that of standard two, he hasn't received proper training in attacking, in assassination, he was the run of the mill ordinary person that carried a weapon and went to attack or to kill. Attack may be seen as more of a constructive aspect as opposed to kill. He purely went there to kill and he now wants us to believe that it was politically motivated and that the objective was to free the ANC, the people that were being attacked by Mbukazi, who supported the IFP.

Mr Chairman, I therefore submit that the entire application of the applicant is fatal in both respects, in that one, it was not politically motivated and two, that he has not made full disclosure and even the disclosure that he attempted to make is not even based on any political findings. And accordingly, that his amnesty not be granted in respect of both the murders of Mr Shandu and Mr Mbukazi. Thank you.

CHAIRPERSON: Thank you, Mr Panday. Do you wish to make any submissions, Ms Thabethe?

MS THABETHE IN ARGUMENT: Yes, Mr Chair, quickly.

Mr Chair, without repeating anything that has been said, my submission is that the applicant has failed to comply with the requirements of the Act of full disclosure and political objective, for the following reasons. Mr Chair, the applicant in his evidence has clearly indicated that he was approached by Kwela and others to attend a meeting, which was a peace meeting. When he was questioned by myself as to what he was told about the meeting, he said that he was told to attend the meeting. He later on changed to say that he was ordered or instructed to guard in case there were any attacks in the peace meeting. After realising from Mr Malan's questioning, that he had acted against the instructions that were given to him, namely to attend the meeting and possibly to guard in case there were any attacks, he then changed his version and introduced for the very first time the idea that there was an instruction to assassinate Mr Mbukazi. I humbly submit that the applicant has not been honest, Mr Chair, and his version is not true.

Further, Mr Chair, even if we have to assume for a moment that the applicant had anything to do with the ANC, which I don't agree with, I humbly submit Mr Chair that at this stage, that is one month before the hearing, before the elections, the ANC's policy was to establish peace in the country and by killing Mr Shandu and Mr Mbukazi, the applicant acted against the policies of the ANC, which was to establish peace in the country. And obviously that would mean he acted outside the policies of the ANC.

Further, Mr Chair, I would like to argue that this offence should be seen as a criminal act and not political because Shandu's car was found burnt, his watch was taken, his wallet was emptied, which suggests criminal elements and criminal activities.

Further, Mr Chair, with regard to Mr Mbukazi, the applicant in his evidence indicated that Mr Mbukazi wanted a resolution to the problem that was there an Engonyameni. He at no stage indicated that he was troublesome, he was an IFP troublesome member. In his own words he indicated that Mr Mbukazi wanted peace, he went to the Inkosi to try and arrange a meeting, the Inkosi was busy, he further arranged with Mr Shandu to have a meeting. Therefore, that makes his offence not politically justifiable and my prayer is that his amnesty should be refused. Thank you, Mr Chair.

CHAIRPERSON: Thank you, Ms Thabethe. Mr Dehal, any reply?

MR DEHAL: No thank you.

CHAIRPERSON: Thank you. We'll reserve our decision in this matter and hope to get out our decision as soon as possible.

That then brings this hearing to a conclusion. I'm told that we've now got to vacate the hall because the hall is required for other purposes by the owners thereof and it means that we won't be able to get to that one now. I'm just told now that they're waiting. That then means tomorrow morning we will start the Dludlu one. I think if we can start at half past nine tomorrow morning. Would that be convenient? We'll adjourn until half past nine tomorrow morning, when we will commence with the Dludlu application. Thank you.