--------------------------------------------------------------------------CHAIRPERSON: The matter that has been set down for hearing today, according to the bundle, is the application of Sibongiseni Philani Khumalo. The Committee remains that same. Would the legal advisers please put themselves on record for the purpose of the recorders.

MS MOHAMMED: Thank you, Mr Chairman. My name is Ms Mohammed and I'm assisted by Ms Koverjee, we are on record for the applicant.

MR HARKOO: Thank you, Mr Chairman. I'm Raymond Harkoo, I'm from the firm Harkoo Bridgedown and Reddy, I'm acting on behalf of the victims of the Reddy family.

MR PANDAY: Thank you, Mr Chairman. The surname is Mr Panday, initial S, I also represent the victims. For the purpose of the record I will read out the names of the victims that I am representing. It is the Maduna family, the Nzuza family, the Duki family, the Dlamini family and the Mbatha family. Thank you.

CHAIRPERSON: Sorry, can you come again, a little more slowly.

MR PANDAY: Okay. Yes, it is the Maduna Family, the Nzuza family, the Duki family, the Dlamini family and the Mbatha family.

MS THABETHE: Thank you, Mr Chair. I'm the Evidence Leader, Thabile Thabethe, for the TRC.

CHAIRPERSON: Right, shall we commence.

MS MOHAMMED ADDRESSES: Thank you, Mr Chairman. At the outset there's just one issue that we need to have the Committee's decision on. In this matter, from the bundle and in fact from discussions held with the TRC, it's evident that there are three parties who are mentioned as implicated parties. Their names for the record are, Jabulani Wiseman Mzimela, Madala Samakushle Mnyandu and Dumisani Malunga.

Each of these implicated parties have stated that are not in fact implicated parties, but rather applicants, in the sense that they have made timeous amnesty applications, on or around sometime in 1996. Mr Mzimela and Mr Mnyandu, their applications relate to incidents which occurred in the Clermont area, and Mr Malunga has applied for amnesty for his involvement in the Reservoir Hills killings which occurred in 1988. None of them have in fact retained any copies of their applications

I firstly address you on the position as far as Mnyandu and Mr Mzimela's position is concerned. I have placed before the Committee and in fact my learned colleagues, a list of correspondences that our offices have prepared and which have been sent the TRC offices from as early as the 29th of March this year. These correspondences relate specifically to Mr Mnyandu and Mr Mzimela's applications. From the correspondence it is clear the TRC has at all times maintained that these two individuals are in fact implicated parties. From the correspondence one can also find a letter from TRC which is addressed to Mr Mzimela, which places on record the fact that they have in fact received his amnesty application. Mr Mzimela received no further notification from TRC about the date of his application, nor any progress in his matter.

Mr Mnyandu on the other hand, received no letters from TRC. The first time that he was contacted by TRC offices was in fact in November 1999, when a TRC officer, Mr Mbatha, called at Westville Prison to speak to Mr Khumalo, as part of his application. At that stage Mr Mnyandu was informed that TRC was citing him as an implicated party in this matter. Mr Mnyandu maintains that he did inform Mr Mbatha of his application that was made on or around 1996, and Mr Mbatha undertook to follow up on it. However, he received no further communication up until March this year, when a Mr Mazibuko from the record section at Westville Prison, told Mr Mnyandu the TRC offices required further information and they required a further detailed statement. And in response to that Mr Mnyandu supplied a lengthy statement which was then sent to TRC offices in Cape Town.

However, Mr Mazibuko under cover of this letter actually said:

This forms part of the bundle of correspondence that I have placed before the Members yesterday. Now Mr Mnyandu's instructions are that that was not in fact his amnesty application, but was rather in the form of any supplementary information that was requested by TRC offices.

Subsequent to that, Mr Mnyandu received a letter from TRC, which stated that his application was actually filed out of time. Now that was purely in response to this letter that had gone across from Westville Prison. Now Mr Mnyandu at this stage even maintains that his application was filed timeously on or around 1996, and this was filed together with Mr Mzimela's application.

I now deal with Mr Malunga's application. Mr Malunga, as the Committee will recall, is applying for amnesty for his involvement in the Reservoir Hills matter. He maintains that his application was made in 1996 and he did not keep any copies of his application. He was not informed by TRC of any progress with his application and he is presently cited for the purposes of this application, as an implicated party.

It is the present applicant's contention, that's Mr Khumalo, that all three of these implicated parties ought to be correctly cited as applicants in his matter, because he has a direct involvement in each of their matters that they are applying for amnesty for, and on that basis requests that the Committee consider the position as far as the three applicants are concerned and that his application be heard together with the other applicants. That is all, Mr Chairman.

JUDGE POTGIETER: Ms Mohammed, is that on the assumption that Mr Khumalo has applied in respect of the Reservoir Hills incident? At this stage.

MS MOHAMMED: Yes.

JUDGE POTGIETER: So you're just applying on that basis? On that understanding that Reservoir Hills is indeed an incident that is before us.

MS MOHAMMED: Yes.

JUDGE POTGIETER: Alright.

MS MOHAMMED: But if the Committee wants me to address on the Reservoir Hills issue at this stage as an incident, I am prepared to do that now.

JUDGE POTGIETER: Why don't you just proceed, Ms Mohammed, and address on whether or not the Reservoir Hills incident is properly before us or not.

MS MOHAMMED: I'll do so, Judge.

It is Mr Khumalo's submission that the Reservoir Hills incident is an incident that he has applied for amnesty for, and I direct your attention to the bundle that has been placed before us. From the bundle it is evident that Mr Khumalo has made two amnesty applications, one is dated the 3rd of June 1996 and the other is dated the 18th of September 1996.

Now in the first application on page 6 - I am presently looking at the English translation of this, of the original Zulu application, paragraph 13(a) asks:

and Mr Khumalo has filled in his response as being:

Now that is clearly the incident which took place in Reservoir Hills.

JUDGE POTGIETER: Is that the proper date?

CHAIRPERSON: It is the date given by Mrs Reddy in her affidavit.

MS MOHAMMED: So it's clear in the first application that he does make mention of the Reservoir Hills incident.

In the second application on page 27, this is now the Zulu version, there is a paragraph right at the bottom and then the corresponding English version on page 19 right at the bottom, says:

and mention is there made of that statement which is dated 27th of May 1996. Now that statement details a list of incidents and also makes mention of the Reservoir Hills incident. So Mr Khumalo did in fact mention this incident and at all stages maintained his involvement in this incident and he is applying for amnesty for this incident. And all these documents were clearly filed with TRC in 1996, the early part of 1996.

CHAIRPERSON: But he doesn't mention this incident as such in either of his applications.

MS MOHAMMED: Yes, Judge, but he says that he had mentioned it in this lengthy statement and he was presently incarcerated for that incident, and he did mention it under that paragraph 13. So he was of the opinion that if it was covered in one part of the application, it did not have to be mentioned in the earlier part which specifically asks for the acts committed.

MR HARKOO ADDRESSES: Thank you, Mr Chairman. It's my instructions to oppose the application for amnesty in respect the Reservoir Hills issue. I think I'll deal with that first rather and then to deal with the Malunga issue.

It is my submission that there is no formal application for amnesty, a mere mention of the fact that this incident took place does not itself constitute an application. It is also the version of the applicant himself in his papers where he acknowledges that the issue at the Reservoir Hills was in fact a criminal issue. And I refer the Members of the Committee to page 49 of the papers, in the middle where he states:

Then again on page 53, at the bottom on the penultimate paragraph, he mentions that - referring to the incident again, he says:

It is the applicant's own submission that, or own version that the incident is in fact of a criminal nature. Apart from the fact that there is a mere application, it is also my submission that it is incumbent upon the applicant to make out a least a prima facie case firstly, on the fact that the incident is politically motivated and also the fact that there is prospects of him being successful in this application. Mere mention of these facts do not constitute an application, firstly.

Secondly, the applicant does not show that it is a politically motivated incident and he also fails to show that there is prospects of him obtaining amnesty from this Committee. I therefore submit that the application, if it was then, was not made properly, and if the applicant seeks to now make the application, it should be refused.

JUDGE POTGIETER: Mr Harkoo, was the Reservoir Hills, was that the only incident for which the applicant was charged and prosecuted?

MR HARKOO: No, Mr Chairperson, he has been charged and prosecuted on a number of charges other than the Reservoir Hills incident. I submit that he may very well be granted amnesty on the other incident, but it will leave him in a position whereby he may still remain in prison and the purpose of him trying to get out of prison is largely to now colour the Reservoir Hills issue as a political event, in order that he may then be liberated, or be out of prison.

JUDGE POTGIETER: So has he been prosecuted and convicted in respect of the other incidents that he's applying for as well?

MR HARKOO: No, he has not

JUDGE POTGIETER: So in respect of the incidents that he's applying for in his forms, there hasn't been any formal prosecution?

MR HARKOO: Yes.

JUDGE POTGIETER: And the only matter that on the face of it, is dealt with in the papers where he was prosecuted and convicted, was the Reservoir Hills incident?

MR HARKOO: Precisely. So basically it would leave him - well insofar as being in prison, it will leave him in a no better position if the amnesty is granted for those incidents for which he has in fact applied, apart from the Reservoir Hills issue. He will still remain in prison.

JUDGE POTGIETER: Ja, but is he in prison in respect of other things as well, apart from Reservoir Hills?

MR HARKOO: No.

JUDGE POTGIETER: Or is it just the Reservoir Hills thing that he's in prison for? I'm not sure, I'm asking you now, but perhaps Ms Mohammed will clarify it later. If you can't it's fine.

MR HARKOO: I understand he hasn't been convicted or prosecuted on the other incidents.

JUDGE POTGIETER: Yes, I'm asking you that because you're the one that raised this paragraph on page 49 of the record, where he says the only criminal case was one of robbery and murder at Reservoir Hills, and I was just trying to understand what that really means, what he was trying to convey there. But I'll ask Ms Mohammed the details. Thank you, Mr Harkoo.

MR PANDAY ADDRESSES: Thank you, Mr Chairman. On behalf of the rest of the victims pertaining to the Reservoir Hills, Mr Chairman, my instructions are also to oppose the application sought by the applicant to have his application considered for the purpose of amnesty.

Mr Chairman, it is my respectful submission that on pages 35 to 53, the applicant had set out in detail to the TRC, as to the sequence of events that has occurred in his life. Mr Chairman, it's pursuant thereafter, or pursuant to the letter that the applicant then completed the necessary documentation and more specifically the events that he would seek amnesty for. Mr Chairman, pages 1 of your bundle to pages 7, the English translation of the first application made by the applicant, Mr Chairman, in those pages referred to, on page 2 the paragraph 9 sets out the acts or omissions or offences that the applicant seeks amnesty for and there it is clearly stated:

And paragraph 4 sets out the nature and details of such events, and thusfar he has not included the incident of Reservoir Hills.

Mr Chairman, then on page 6 the applicant's legal representation refers to paragraph 13(a), which asks of the applicant:

it's against the acts, offences and omissions for which he applies for amnesty. The acts, offences and omissions for which he applies for amnesty are clearly set out in paragraph 9, which he sets out, and one cannot read into the statement merely put down that he faces murder charges and robbery charges for an incident that occurred on the 26th of August 1988.

Now the representation further referred to the second application that was made by the applicant. That appears on pages 18 to 24. Now once again, in paragraph 9, I think it's paragraph 9(a), once again the applicant sets out the case or the incidents - that's on page 19, for which he seeks amnesty for and all he does in paragraph 4 is merely relate to these incidents and confirms that he did set out in his papers:

He merely relates to these incidents.

JUDGE POTGIETER: Well he leaves out the assault GBH on Mr Dlamini.

MR PANDAY: Ja, I noted that.

JUDGE POTGIETER: In the second application.

MR PANDAY: Ja, that's left out. That's left out as well. But even if one accepts his first application as being his completed application, there he includes the incidents that he seeks amnesty for. Now as my learned friend, Mr Harkoo, has pointed out, it's that to the best of our knowledge the applicant is currently serving a term of imprisonment for the incident that took place on the 26th of August 1988 at the Reservoir Hills Hotel. Now the indictment on page 141, sets out the offences that he's been charged for and we can reasonably assume, unless it can be confirmed later, that there are any other terms of imprisonment he's serving for any other offences. I believe, if my memory serves me right, I think the term of imprisonment he's serving is approximately 20 years for the incident that took place at Reservoir Hills.

Now Mr Chairman, to sum up the reasons for opposing, is that at all times the applicant has made it clear the incidents he applies for amnesty and it was never included in his applications, the two application forms that he has submitted to the TRC.

JUDGE POTGIETER: You're submitting that we must ignore paragraph 13(a) on page 6 of the record. That's where he does refer to Reservoir Hills.

MR PANDAY: Mr Chairman yes, paragraph 6 can't be read into the fact that he refers to this as an incident of application.

JUDGE POTGIETER: Well he responds to the question which is very specific:

and then he responds to that and he says well, I'm facing these things ...(intervention)

MR PANDAY: Now Mr Chairman, paragraph 13 is a direct result of the question that had to be answered on paragraph 9.

JUDGE POTGIETER: Well to a lawyer perhaps, but he completed this thing in Zulu and as far as I know he hasn't got any legal qualifications.

MR PANDAY: Well Mr Chairman, we're also dealing with a person that has a standard 10 qualification.

JUDGE POTGIETER: Yes.

MR PANDAY: He's a person that can understand and he has gone to great length into explaining his involvement pertaining to the incident that took place in Clermont. One cannot believe that he has all of a sudden ignored the incident at Reservoir Hills. And more specifically, that being the major incident in his life.

JUDGE POTGIETER: Yes, but why does he refer to it on page 6, if it has got nothing to do with his application? That's what I can't understand. And if I understand your submission you say that we must ignore this completely.

MR PANDAY: Well that leaves it just open, Mr Chairman, it's not specifically directed to an act that he applies for amnesty. He merely states that "I am currently just serving a sentence", but nothing further. It was never as a result of an act that he applies for. It's my submission that that statement be ignored and just merely be taken for what it purports to state, that he's serving sentence on an incident ...(intervention)

CHAIRPERSON: Facing charges.

MR PANDAY: Facing charges on an incident that took place on the 26th of August 1988.

JUDGE POTGIETER: Ja, but why does he tell us that, why does he tell us he's facing charges? He's not even saying I'm serving a sentence, I'm in prison, I'm facing charges. What is the relevance of that otherwise, if it has got absolutely nothing to do with the amnesty application? What does it doing there, and why must we just ignore it? That's what I want to be clear about.

MR PANDAY: Mr Chairman, as I verily believe it's that this is merely informative, not necessarily directed at an act of amnesty application. I cannot foresee this being directed at that. In paragraph 9, if he was intending applying for amnesty for the incident that took place at Reservoir Hills, that could have - that would have been included.

JUDGE POTGIETER: Yes remember, and as Ms Mohammed has indicated, at that stage this letter was already in our possession, it was dated the 27th of May '96, and this application if I remember correctly, was in June. So the application form followed on the letter of explanation. So that long narrative was already in our possession at that stage and now the form follows.

MR PANDAY: I would concede that, Mr Chairman, but it's my submission that we verily believe that the applicant has not intended applying for amnesty in respect of the Reservoir Hills incident or he would have made that very clear when he sought amnesty in respect of ... He merely sent a letter detailing his history. Mr Chairman, this application was sent in and subsequent to that there was a conviction, not at the time, he was just facing charges at the moment. This matter had not been finalised. One may not have been able to foresee that he would have been convicted on such an incident, but that's how it stands.

Mr Chairman, it's my respectful submission that that ought to be ignored. It's neither here nor there.

CHAIRPERSON: Well isn't there a provision in the Act -I'm afraid I left my copy of the Act in my chambers, that when an application is received, the Committee should enquire to clarify if there are uncertainties in it? Shouldn't that have been done here?

MR PANDAY: It is possible, Mr Chairman. As I said we do not have that confirmation as to whether there was any confirmation sought in respect of the incident at the Reservoir Hills.

JUDGE POTGIETER: And can that neglect, can that be held against the applicant? Especially if it's a lay person, even with matric as you say.

MR PANDAY: I would submit, Mr Chairman, if there was fault on the part of the TRC not to clarify issues or the investigative work that was being done, that would be an issue to take into account.

JUDGE POTGIETER: And possibly that the objectives in this legislation is such that we as a Panel, should not be too legalistic when we approach these matters, we must read this as a whole and if there's a reasonable basis for concluding that there was possibly a reference in the application to this incident as well, that unless there's clear indication otherwise, one should come to the assistance of an applicant.

MR PANDAY: I would concede that, Mr Chairman, but as my learned ...(intervention)

JUDGE POTGIETER: Of course bearing in mind that that's got nothing to do with the merits of the case. Mr Harkoo has already referred to the merits, but that's a different question.

MR PANDAY: I would concede that.

JUDGE POTGIETER: There might be no merits in the application, but at this stage at the very least ...(intervention)

MR PANDAY: I would then concede that point, Mr Chairman, if one has to have a slightly wider approach in addressing the applicant's application.

JUDGE POTGIETER: Yes. Yes thank you, Mr Panday.

ADV SANDI: Sorry, just for my own information, in the long statement that has been submitted by the applicant, have you been able to locate any specific portion where he deals in any sort of detail with this Reservoir Hills incident, to say why it was committed, what political objective was sought and so on?

MR PANDAY: Well, Mr Chairman, the long statement that begins on page 35, the translation, and that goes on to page - I'm sorry, if Mr Chairman can just bear with me, that goes on to page 43, where he does detail the incident that took place at the Reservoir Hills Hotel, and specifically with paragraph 2, but as Mr Commissioner Potgieter has pointed out, that this would now be hinging on the merits of the matter and not on the merits of the application insofar it ought to be considered.

ADV SANDI: Ja, but maybe one is ...(indistinct) out here. In trying to determine whether there is a proper application before the Committee, shouldn't one read the application together with this particular statement, in order to decide that question?

MR PANDAY: I would submit that to be the case, Mr Chairman.

ADV SANDI: Ms Thabethe, do you know if there was any correspondence between the office and the applicant, by way of asking for further particulars from the applicant? Do you know if that ever happened?

MS THABETHE: Mr Chair, what I know is that we asked our Investigative Unit to go to the applicant and clarify exactly which incidents he's applying for, because if you read the lengthy statement from page 35, there's quite a number of incidents that he refers to. For example he refers to, on page 39, to the disarming of policemen when they were from a funeral. So yes, we did instruct our IU to go and get a much more detailed account of what he's applying for, hence the statement on page 105. That is an affidavit clarifying exactly what he's applying for.

ADV SANDI: Ms Mohammed, if I can just come back to you. Where does the applicant associate himself with the Reservoir Hills incident in the long statement he has submitted?

MS MOHAMMED: Thank you Judge Sandi. On page 43 of this lengthy statement, this is in response to the earlier - that you wanted to know about his objective, the second paragraph there details his reasons for his involvement in that matter. The paragraph which says:

and which ends with:

CHAIRPERSON: We've now been told that this affidavit at page 105 was specifically obtained by the Investigators, to clarify possible misunderstandings or confusion as to what was set out in the applications. Now in page 107, paragraph 2, he says:

That would seem, on a reading of it, to indicate that he, when asked by the Investigators as to what matters he had applied for, said that he had applied for these. He then sets out in great detail what happened. Doesn't that appear to indicate, the wording there, that he thought he had applied? This is one of the matters. When they asked him "What have you applied for?", he told them this is one.

MS THABETHE: It would appear so, Mr Chair.

MR PANDAY: I would concede that as well, Mr Chairman.

CHAIRPERSON: And the matter was left there. If our Investigator did not continue and say well, where is this set out in the application, he seems to have accepted it. Perhaps there was another application which we haven't seen, because at the time he made his first application, the one we've been talking about, he still hadn't been sentenced had he?

MR PANDAY: No, Mr Chairman.

CHAIRPERSON: Anything further?

MR HARKOO: Mr Chairman, I have not addressed the Committee on the issue of the Malunga matter and I think the appropriate time would be once we've arrived at a decision relating to whether or not there was a proper application in regard to the Reservoir Hills issue.

CHAIRPERSON: I think if you could address us we can go away and then consider them all.

MR HARKOO ADDRESSES: Thank you, Mr Chairman.

It is my submission that there is no application before this Committee and if my learned friend intends pursuing one, then she need at least make out a prima facie case as I've mentioned, in regard to the political motives, as well as some - I think it would be incumbent upon her to make some mention of the prospects of a successful application for amnesty.

It is the, as I've mentioned earlier, it is the version of the applicant in this particular case, Mr Khumalo, whereby he himself refers to the incident as one of a criminal nature and throughout he maintains that it was a crime that he did not intend to commit. He tried to maintain his innocence in the whole issue. He gives us a very brief background as to what he thinks has happened, but there is no indication at all that it is of a political nature. I submit therefore that in the light of the fact that there is no application, there is no prospect that it is of a political nature, or any prospects of success that that application for Malunga also not be considered.

JUDGE POTGIETER: So in respect of Malunga, there is absolutely nothing before us?

MR HARKOO: Precisely.

JUDGE POTGIETER: In respect of Khumalo there are at least these bits and pieces that we've been talking about this morning. But apart from the submissions that Ms Mohammed made, there is nothing else before us.

MR HARKOO: Yes.

JUDGE POTGIETER: Not even evidence of somebody who can attest to the fact that he made an application? There's nothing before us.

MR HARKOO: Yes, yes. Thank you.

JUDGE POTGIETER: Yes thank you, Mr Harkoo.

MR PANDAY ADDRESSES: Mr Chairman, just to reaffirm Mr Harkoo's position is that when dealing with Mr Malunga, one has not tendered any prima facie, even for the very simple register. It is common knowledge that any applications that are made is that it is logged in a register of the prison authorities, whereby any documentation or correspondence is received by the respective prisoners. Maybe if one had sight of that, one could have possibly have given him the benefit of the doubt. Mr Chairman, taking that into consideration there has been no shred of evidence indicating that Mr Malunga has in fact applied for amnesty in this matter, and ...(intervention)

CHAIRPERSON: I understood yesterday, please correct me, that enquiries has been made at the prison and the relevant records were not available.

MR PANDAY: Mr Chairman, from what I recall is that the correspondence from a Mr Mazibuko pertaining to Mr Mnyandu, was that he can recall him making an application. I don't recall them stating specifically that Mr Malunga had made any application. Maybe our learned friend, Ms Thabethe, would be able to ...(intervention)

JUDGE POTGIETER: No, but the Chairperson is referring to the enquiries that were made on our request yesterday afternoon, at the prison, the search of the prison records, the log books, to see whether there is any indication of any application that are relevant to the ones before us. We haven't had a final answer to that, perhaps Ms Thabethe is going to deal with that.

MR PANDAY: Well I know with regards to the matter yesterday we had come back where they said the records that were sent over were pertaining to yesterday's matter. I can't confirm ...(intervention)

MS THABETHE: Can I be of assistance maybe here? Mr Chair, just for the record we did try to be of assistance by sending our Investigative Unit, Mr Mbatha went there together with Mr Madlala from the ANC, to the prison to look specifically for the register, because apparently there was a register where if someone had applied for amnesty they would register his name. Unfortunately the register is no longer there, no-one knows where it is. So there is no proof or evidence of any register. Or if it was there it could not be found.

JUDGE POTGIETER: Yes, so there's nothing significant in that regard.

MS THABETHE: There is nothing significant in that regard.

JUDGE POTGIETER: It doesn't help us in either way.

MS THABETHE: No.

JUDGE POTGIETER: Yes.

CHAIRPERSON: ...(indistinct - no microphone)

MR HARKOO: Yes, I have, thank you Mr Chairman.

MS THABETHE ADDRESSES: Thank you, Mr Chair.

I was going to say with regard to Mr Mzimela, I phoned the office yesterday to try and find out what was on the file and it turned out that he did make an application for indemnity, which I would submit Mr Chair, to have been taken by our offices as an intention to apply for amnesty, because thereafter we wrote a letter to him acknowledging receipt of an application. That letter is dated the 25th of March 1997. And Mr Mzimela was also given a reference number 4237/96.

CHAIRPERSON: ...(indistinct - no microphone)

MS THABETHE: Yes, the front page is the application for indemnity. The letter is on the last page and the first sentence reads:

CHAIRPERSON: Not just "your application", but "your application for amnesty."

MS THABETHE: For amnesty, yes.

CHAIRPERSON: Which I must say prima facie appears to indicate that they had received an application form which they took to be one for amnesty.

MS THABETHE: One for amnesty, yes. The difficulty, Mr Chair, is with regard to Mr Mnyandu and Malunga, because we will have nothing to go on with regard to them.

JUDGE POTGIETER: Yes, now Ms Mohammed has submitted to us that the office had in fact requested further particulars from Mr Mnyandu and that the document that we have in our possession was in response to that and that the prison official had erred in writing in his covering letter that this is the application for amnesty. He should have written that these are the further particulars that you, TRC office, want from me. So what is your response to that?

MS THABETHE: My response, Honourable Member of the Committee, is that our instructions and our Investigator, Mr Mbatha, was clear that Mr Mnyandu was regarded as an implicated person, so any particulars that were requested from him were requested from him as an implicated person. That has always been our stance, even in our correspondence.

JUDGE POTGIETER: Yes, but Ms Mohammed indicates that when Mr Mbatha visited the prison in order to speak to Mr Khumalo, he then also got in touch with Mr Mnyandu and said to Mr Mnyandu "Look you're implicated in this matter", so Mr Mnyandu then indicated to him, Mbatha, that he has actually applied for amnesty and Mbatha then undertook to look into the matter and to see what the position is. Now you haven't responded to that.

MS THABETHE: With regard to that, it's the first time I'm hearing about it, it's never been raised before, it was not raised in chambers and it didn't give me an opportunity to get in touch with Mr Mbatha. Because Mr Mbatha is in this office, I would have easily done that. So my response to you, Honourable Member of the Committee, is that it's the first time I hear about this allegation, that Mr Mbatha was informed by Mr Mnyandu that he'd made an application, hence I couldn't follow it up. But definitely our office ...(intervention)

JUDGE POTGIETER: Yes, well you must decide because Ms Mohammed's submission is the only one that's before us now. You're telling us that you're not able to respond to that.

MS THABETHE: Can I request for a short adjournment to speak to Mr Mbatha about this, because definitely it was not communicated to our office, it's just the word from the applicant. And what surprises me, Mr Chair, I must say, is that it's the first time I hear about this. Submissions were made in chambers, I was never told about this fact, hence I couldn't follow it up before.

CHAIRPERSON: I think you can follow it up and if necessary call him as a witness.

MS THABETHE: Yes.

MS MOHAMMED: Sorry, Mr Chairman, if I may come in here. I do confirm that I haven't discussed this with the Evidence Leader. My consultation with Mr Mnyandu on this particular point, followed on a question posed by Mr Chairman in chambers, as to when was the first time he was contacted by TRC offices to advise him that he was an implicated party. It was in response to that, just now, just before the hearing convened, that Mr Mnyandu informed me of this. However on the papers before us in the bundle on pages 113 and 114, is a translation of Mr Mnyandu's affidavit, which was actually given to Mr Mbatha at prison in November last year. From a reading of paragraph 3, the last line, Mr Mnyandu says:

And also in paragraph 4 and then - so this has been mention in fact, in his affidavit, so clearly Mr Mbatha would have been aware that an application had been made because this is clearly recorded in this affidavit.

CHAIRPERSON: This act he's talking about was not - which act was this?

MS MOHAMMED: Mr Chairman, Mr Mnyandu has applied for amnesty for his involvement in the killing of one, Mapumulo and that is an incident in which - it's not linked to the Reservoir Hills matter at all, it's actually Clermont matters that are mentioned in this affidavit.

JUDGE POTGIETER: Yes, but how does it help us to decide this question that is before us now in respect of Reservoir Hills?

MR PANDAY: Sorry Mr Chairman, I don't think Mr Mnyandu is linked to the Reservoir Hills matter.

MS MOHAMMED: It is only Mr Malunga.

MR PANDAY: He's been implicated by Mr Khumalo in the Clermont matters, in the murders of Maduna, Nzuza and the assault of Dlamini.

JUDGE POTGIETER: Yes, I'm sorry, yes.

MR PANDAY: Mr Chairman, if I may just point out to Mr Chairman on page 113, paragraph 1, where Mr Mnyandu states that:

Now my learned friend referred to paragraph 3 where he says:

and she mentioned the Mapumulo matter. From his affidavit it's not clear that he seems to apply for amnesty with regards to the incidents involving the matter where Mr Khumalo is applying for amnesty.

MS THABETHE: Can I respond, Mr Chair? I concede, Mr Chair, that the applicant has indicated that he made some sort of an application to the TRC, but there is no record of him having made an application anywhere, not in the register, there's no file of him, he is - we only knew about him because he was implicated by the applicant, hence we've always referred to him as an implicated person.

CHAIRPERSON: We'll take the short adjournment now anyway, the time has come for that, and that will give you an opportunity to discuss it.

CHAIRPERSON: ... has become available.

MS MOHAMMED: That is correct, Mr Chairman. We have spoken to Mr Tom Madlala who at some stage was the ANC Chairperson at Westville Prison. He has advised us that there was a certain stage when TRC had forwarded a list of ANC related amnesty applications to attorneys, Mlaba, Makai and Associates and one of their consultants from the firm had called at the prison with this list from TRC and went and spoke to each of the applicants, and on that list Mr Mnyandu's name and Mr Mzimela's name was featured.

CHAIRPERSON: Sorry, Mr Mnyandu ...?

MS MOHAMMED: And Mr Mzimela. Thank you.

CHAIRPERSON: That is accepted by all is it?

MR HARKOO: I cannot dispute that. Thank you, Mr Chairman.

CHAIRPERSON: Thank you. Nothing further anybody wants to say?

We have had an opportunity of considering the information and the documents that have been put before us and the helpful argument that has been advanced. We have decided that the most convenient way of handling the matter, is to continue with Mr Khumalo's hearing, but to include in the subject matter of the incidents, the Reservoir Hills matter. That is the matter where the Reddy's were killed.

We also feel that it would be proper on the information available to us at the present stage, to permit Mr Mnyandu and Mr Mzimela to continue as applicants. I wish to make it clear that we are not making a finding at this stage in this regard, but we think that more may emerge during the hearing, which will enable us to make a finding.

We have not heard anything that makes us feel that we should hear Mr Malunga at this stage. In his case I also wish to make it clear that we are not making a finding that is he is not entitled to be heard at some stage as an applicant, but that is a matter that he will have to investigate further, obtain more information to put before a Committee, or before the Amnesty Committee itself, to persuade them that he should be put down as an applicant. We do not make any finding to prejudice his position.

Any questions? Very well, let us continue.

MS MOHAMMED: Thank you, Mr Chairman. I call the applicant, Sibongiseni Philani Khumalo.

SIBONGISENI PHILANI KHUMALO: (sworn states)

JUDGE POTGIETER: Thank you, be seated. Ms Mohammed.

EXAMINATION BY MS MOHAMMED: Thank you.

Mr Khumalo, before you I have placed the bundle of documents that is now before all the Members of this forum, in that bundle can you please look at pages 8 to 17, and do you confirm that that was your original application for amnesty?

MR KHUMALO: That's correct.

MS MOHAMMED: And then it follows that pages 1 to 7 is the correct English translation.

MR KHUMALO: That's correct.

MS MOHAMMED: Do you also confirm the application dated 18th of September '96, which forms pages 25 to 34 of this bundle?

MR KHUMALO: Yes, I do.

MS MOHAMMED: And so it follows that pages 18 to 24 is the correct English translation of that application.

MR KHUMALO: Yes, I think so.

MS MOHAMMED: And then pages 35 to 54 is actually a detailed letter that you have addressed. Pages 55 to 104 actually bears the Zulu version. Do you confirm the correctness of that?

MR KHUMALO: Yes, I do confirm that it is the truth.

MS MOHAMMED: Then there's a further affidavit in this bundle, which runs from pages 105 to 109, it's dated 16th of November 1999. This is an affidavit that you submitted to TRC Investigator, Gerard Mbatha. Do you confirm the correctness of this statement?

MR KHUMALO: Yes, I do.

CHAIRPERSON: What page is that?

MS MOHAMMED: Page 105 to 109.

Okay Mr Khumalo, you have now confirmed the correctness of all these documents before the Committee, do you have anything further that you wish to add and that you wish to address the Committee on?

MR KHUMALO: I would like to comment on the application made with regards to the Reservoir Hills matter. I will begin by touching on the statement I made in 1996, particularly the details concerning that incident.

What I am trying to avoid is to be implicated or to be accused of not telling the truth because when it comes to this matter I had encountered certain problems. When you look page 17, which bears the signature of Mr Pongula, who is an employee at Westville Prison ...(indistinct). He came to my cell, B5 number 9, and informed me that there was a process whereby all activists could apply for amnesty. For the reason that he did not know the details of my involvement in UDF matters as well as in youth matters, he told me that he had received forms from the government requesting all persons who were involved in conflicts of the past to detail those in those forms.

The problem I encountered was after I had detailed incidents that took place in Clermont, that is involving the persons contained in the application form. When I was about to detail the issue of Reservoir Hills, I encountered problems because the situation in Westville Prison cannot be compared to a normal life, for the reason that I was preoccupied with the charges that I was facing. For the reason that my co-accused had already been sentenced and I had not been present when they gave testimony in court, so I did not know whether they pleaded guilty or not.

In prison there are different gangsters and one is living in that situation. For the reason that Siphiso and Dumisani had already been sentenced, I was therefore not in a position to divulge everything about that incident.

MS MOHAMMED: Can you just confirm to the Committee what sentence you are serving.

MR KHUMALO: I have a 20-year sentence for two charges of murder and two charges of attempted murder and one of robbery, or armed robbery.

MS MOHAMMED: And it is correct to say that all these charges relate specifically to the incident at Reservoir Hills?

MR KHUMALO: Yes.

CHAIRPERSON: Are you going onto something else now?

MS MOHAMMED: No.

CHAIRPERSON: Oh, can I just interrupt you anyway, I'm sorry but I forgot.

I have been told that there is another court sitting round the corner and they have been disturbed by the noise created with people leaving this court, so I would ask you all please to be as quiet as you can when you leave this courtroom.

Carry on.

MS MOHAMMED: Thank you, Mr Chairman.

Mr Khumalo, now you just said that all your charges - sorry, your conviction and your sentence relate specifically to the Reservoir Hills matter, maybe I think for the purposes of clarity you can just start with your involvement in that matter. We have it taken before us, but we do have your application in front of us.

MR KHUMALO: With regards to the Reservoir Hills matter?

MS MOHAMMED: Sorry, Mr Chairman, if I may just have a minute with the applicant. Thank you.

Yes, Mr Khumalo, I think you should now start with your involvement in the Reservoir Hills matter.

MR KHUMALO: I will detail my involvement in that incident, however I'm not certain whether I should not begin by detailing my involvement in politics, because to start it at the specific incident, may create problems later on.

JUDGE POTGIETER: Perhaps you can just lead him. It's not necessary, we don't want his entire history. So please, just focus on membership of political organisations and so on, just to lay that basis. I don't think that's really in dispute, so I suggest you lead him on that.

MS MOHAMMED: Mr Khumalo, when did you formally - were you ever formally a member of any political party?

MR KHUMALO:

...(intervention)

CHAIRPERSON: We seem now to have got to the second paragraph on page 1 of his statement. Are we going to continue at this length?

MS MOHAMMED: No, Mr Chairman, I was just going to bring him back.

JUDGE POTGIETER: Perhaps you want to finish off Simi Nzuza's matter and just tell us what happened to him and move onto the next one.

MS MOHAMMED: Okay, Mr Khumalo, I'm going to take you back to this incident, the killing of Simi Nzuza, maybe you can just tell the Committee exactly what transpired on the day of the killing.

MR KHUMALO: Thank you. I would first outline the incidents which occurred before Simi was murdered and also I would like this Amnesty Committee to understand that on the day when he was killed we were not after him, we were looking for other people who were called Senior. These people were torturing the community of Clermont. It was after the State of Emergency. As I've already explained that if I were to talk of everything which occurred in that period, it will be too much, but I will try and eliminate other facts.

...(intervention)

ADV SANDI: Sorry, Mr Khumalo, I think I'll have to ask you to confine yourself to the incident about Khumalo. Who killed Khumalo? Let us start there. - Nzuza, sorry. Who killed Simi Nzuza?

MR KHUMALO: Students. The youth who were comrades those days. If I were not to talk about everything I may experience problem being questioned that why I didn't say so when I was giving my testimony, that is why I'm trying to relate everything in connection with this, or every fact which is relevant to the killing of Simi when he met the youth who were angry in Clermont, because the youth were experiencing problems at the time they had been harassed. That is why I'm saying I would try and eliminate the irrelevant facts, but I will also try and relate relevant facts to this incident, and that is why I'm trying to explain incidents which occurred, which led to the killing of him. It is important for me to relate that even the Crisis Committee was formed because of the situation.

MR PANDAY: Sorry, if we may just take a short adjournment, just to consult with the applicant's legal representative. We're going to be going on into great depth of ...(indistinct) unrelated as opposed to attending to the issues that need to be dealt with. This application is confined to specifically four incidents, if not five. Now if we may just have a chat with the legal representative, maybe we can be a bit more productive in terms of the processing of this application.

CHAIRPERSON: Well if you think it can bring matters to a head, we will take that adjournment and allow you one.

MR PANDAY: Thank you, Mr Chairman.

SIBONGISENI PHILANI KHUMALO: (s.u.o.)

EXAMINATION BY MS MOHAMMED: (cont)

Thank you, Mr Chairman, I'm indebted to the Committee.

Mr Khumalo, I'm now going to take you to the killing of Simi Nzuza. Please can you tell us what happened on the day in question.

MR KHUMALO:

...(intervention)

MS MOHAMMED: Sorry, can you just tell us why you and the rest of the comrades were running after Simi.

MR KHUMALO: The reason the comrades were after him, it was because he was viewed as an informer because there were things which were happening in our schools and he would tell police and these reports we will get to know them since we were residents of Tabega, because Tabega and Clermont residents were not in good terms, but I was a resident in Kwatabega.

I myself, I was in a very difficult position because I was a resident of Tabega, which Clermont residents viewed as a predominantly IFP area.

MS MOHAMMED: Mr Khumalo, I'm going to take you back to this point where you saw Simi Nzuza running and the comrades had said to you that you must be careful because he had a gun with him, and you said to us that you hadn't seen the gun yourself. Now what happened at that point?

MR KHUMALO: As he was running, the comrades had been armed, all of us, we had different weapons with us.

MS MOHAMMED: What weapon did you have with you, if any?

MR KHUMALO: What I had from home, I had a home-made knife which I had made myself.

MS MOHAMMED: Okay and then what happened?

MR KHUMALO:

MS MOHAMMED: What did you do?

MR KHUMALO:

MS MOHAMMED: Mr Khumalo, I'm going to take you back to Simi Nzuza who was now being attacked by these students, okay, can you tell me now what had happened to him after this? You said you personally wanted to assault him but you couldn't do so, what happened after that, what did you do? Apart from looking at these other comrades, I want to know specifically what did you do in relation to Simi Nzuza.

MR KHUMALO: I don't know, maybe there is another way for me to explain this or whether I should lie and implicate myself more than what I've already mentioned. I don't want to lie because the truth is that I didn't with my hands, but I was one of the comrades. As Simi was lying down, comrades started running and when I looked around there was a certain boy who was wearing a uniform. I don't remember whether his name was Dumisani. I'm not sure whether he was Simi's brother, but he was standing next to me and he was doing nothing and he was looking at the people who were assaulting Simi, and that thing alone caught my eyes and I started thinking because I used to see this boy together with Simi. I didn't go to Simi and lay my hand on him. At that time comrades started scattering and that's when I realised that police may come at that time.

I do remember that I was the one who was responsible because I was the one who went to different schools together with other comrades, but the reason was not gather the comrades to kill Simi, but it was to attack Seniors. And I am not lying and I'm not trying to remove myself from the fact that I was part of this crime. And I'm not trying to please the Amnesty Committee or Simi's family. The reason I'm doing this, I'm trying to explain everything so that Simi's family can get to know about the incident, the whole truth and what prevailed on that day. I didn't put my hand on Simi because I didn't assault him, but I still feel guilty because I was one of the people who went to different schools and talked to students so that we go and look for Seniors and also I wanted to prove a point that not everyone who was staying in Kwatabega was an IFP.

MS MOHAMMED: Thank you, Mr Khumalo. Now to the best of your knowledge this was the time at which Simi was killed.

MR KHUMALO: Yes it is the day when Simi was killed.

MS MOHAMMED: Just for clarification, you were never arrested and neither did you face any criminal charges in relation to his death.

MR KHUMALO: I was expecting to be arrested for Simi's death because there were people who did go to the police in Kwatabega Police Station and gave evidence, therefore I expected the police to come and arrest me.

When I was detained in 1987, SPs told me that they knew that I didn't put my hand in Simi's death, but I was one of the people who were there. That is whey then I was told that I was supposed to go to court and be a State witness and testify against the comrades who were present when Simi was killed. And also I was also told that I should implicate Peter, who was not even present when this happened, Peter Mazibuko. The boers, the SPs told me I should implicate him.

MS MOHAMMED: Thank you, Mr Khumalo. Mr Chairman, we're ready to go onto the next incident, I'm not sure if I can have some indication from the Committee whether you want us to proceed or should we adjourn?

CHAIRPERSON: Well we have arranged that luncheon would be served at one fifteen and we take half an hour for lunch if that suits you, but in the light of the fact that you're going onto something else, it might be better if we could take the adjournment now and we'll adjourn now for half and hour. I gather there is provision made for you all to feed here.

MS MOHAMMED: Thank you, Mr Chairman.

SIBONGISENI PHILANI KHUMALO: (s.u.o.)

EXAMINATION BY MS MOHAMMED: (cont)

Thank you, Mr Chairman.

Mr Khumalo, we will now move onto the next incident, it's the killing of Vusi Maduna.

ADV SANDI: Sorry, can I just come in here? I think you'll have to ask him questions to enable him to put the story before the Committee. Just ask him to sort of - not the way you did it last time.

MS MOHAMMED: Thank you.

Mr Khumalo, on the day on which Vusi Maduna was killed, can you tell us how the incident took place.

MR KHUMALO:

MS MOHAMMED: And then what happened?

MR KHUMALO:

MS MOHAMMED: Okay, you said "we then took him and questioned him", who is the we that you're referring to?

MR KHUMALO: People like comrade Jabulani Mzimela, comrade Pantas and Nki.

MS MOHAMMED: Where did you take ...(intervention)

MR KHUMALO: We took him to the post office and we sat behind the post office at Clermont.

MS MOHAMMED: Okay, and then what happened?

MR KHUMALO: We started questioning him there. Questions related to his role in the death of the executive of Hyco, because he was implicated in the death of the leadership of that organisation. We also questioned him on the Pietermaritzburg Youth Forum, whose funds were allegedly from the Security Branch. We also questioned him on where he had received a mandate to hold a meeting in the name of UDF, at Hammarsdale.

MS MOHAMMED: Which political party did Vusi Maduna belong to?

MR KHUMALO: He was a UDF member by day and an IFP member by night. He was also in collusion with the Security Branch.

MS MOHAMMED: Okay, now during - sorry, after the course of your questioning at the post office - let me rephrase that. Was Vusi killed at the post office immediately after your questioning?

MR KHUMALO: After questioning him and realising that he was not willing to give satisfactory answers, we started pouring whatever drinks we had over him. This was a way of trying to get the truth out of him. During that questioning it became difficult to stop other comrades from assaulting him, because as we were questioning him some other comrades were called from hiding and these comrades were not prepared to listen to whatever Maduna had to say, because he was responsible for the death of other comrades. So that at that time he was then assaulted with the various assortment of weapons like knives, butcher knives, axes. So because comrades were armed with an assortment of weapons, but there were no firearms involved there.

MS MOHAMMED: Were you armed at this time?

MR KHUMALO: Yes, I was.

MS MOHAMMED: What were you armed with?

MR KHUMALO: I had a knife, a fish knife as well as a home-made knife.

MS MOHAMMED: What part did you take in this killing?

MR KHUMALO:

...(intervention)

MS MOHAMMED: Were you still armed at ...

MR KHUMALO: There was a bush knife that was stabbed at him behind the head. I cannot recall whether at that time I still had the knife, but I will assume that I had a weapon in my hand because the wound that really finished him off was one that was inflicted by a bush knife behind his head and that is when he fell outside of the bus. We dragged him towards the side, so as to clear the way and also enable other passengers to proceed with their journey.

MS MOHAMMED: Who inflicted this wound with the bush knife?

MS MOHAMMED: Who sent her to fetch the petrol?

MR KHUMALO: I do not know, but I did hear somebody sending her to fetch that petrol because at that time we were looking for petrol and a car tyre to hang around him, because that was the way we dealt with people like Vusi Maduna.

...(intervention)

MS MOHAMMED: And then what happened?

MR KHUMALO: After that I ran towards the taxi rank. I then requested someone, a taxi driver to take me home and that was where I left the comrades.

MS MOHAMMED: What was the role of comrades Mnyandu and Mzimela in this killing?

MR KHUMALO: With regards to Mzimela, he was present when all of this started. He was with us in the morning when we went to check on the buses. These two comrades were active in the organisation and when the buses arrived we had to check whether everything was in order and then report to Mr Kuzwayo.

MS MOHAMMED: Mr Khumalo, were comrades Mzimela and Mnyandu part of the group that assaulted Mr Maduna?

MR KHUMALO: Yes, they were present.

ADV SANDI: Could you just explain that. Did they specifically take part in the assault and the beating up of Maduna?

MR KHUMALO: Comrades Madala and Mzimela were the sort of comrades who were always in the forefront, so that whatever we started we had to see it through. Since we regarded Vusi as a white African and as such was an oppressor, it was therefore not easy for them not to take part. They played a significant role and I know that in Vusi's death they were also responsible.

MS MOHAMMED: Did you see what they did to Vusi Maduna?

MR KHUMALO: It must be clear that we did not operate as hit squads, therefore it was not easy to check and observe who does what, because what we did it was out of anger and it was also because of the need to fulfil the objectives of the organisations.

MS MOHAMMED: Mr Khumalo, did you specifically see Mr Madala or Mr Mzimela attack Vusi Maduna?

MR KHUMALO: We all attacked Vusi, but I cannot state specifically who hit him where, but as a group we all went there and assaulted him. It would be difficult for me to know where they specifically assaulted the deceased, but they played a role, they had a hand in his death.

MS MOHAMMED: Thank you. I now want to take you to the next incident, that's the assault on Vunu Dlamini and Sipho Mbatha. Now I want to take you to the specific day in question. When was the first time that you saw either of these men?

MR KHUMALO: I do not quite understand when you say for "the first time", because I knew them from early on. I do not know whether you are referring to the day in question when you ask me when did I see them for the first time.

MS MOHAMMED: Yes, on the ...(end of tape 2A)

MR KHUMALO:

MS MOHAMMED: And then what did you do?

MR KHUMALO:

...(intervention)

MS MOHAMMED: Why did you go to Buno and question him?

MR KHUMALO: As mentioned before, I knew Buno from my childhood. I knew him from when we were young boys, because our homes were next to one another, so I knew he was a criminal, he used to break into people's homes, he robbed people. That is why he was the first person I approached.

Secondly, my landlady informed me that she had lost her sports bag and I had seen Buno carrying a sports bag fitting that description. That is why I approached Buno and I just asked him when was the last time he went to visit my area.

MS MOHAMMED: So where did Buno Dlamini live?

MR KHUMALO: He resided near my home, but their shacks were one-roomed houses and ours were two-roomed homes.

MS MOHAMMED: So you approached him whilst he was still living at that shacks? In others words, you confronted him whilst he was at the shacks.

MR KHUMALO: There was comrade Mandla Ngubane whom we used to visit, who is a neighbour to Buno. We then went to him. I was not alone, I was in the company of other comrades but I cannot recall now who they were. I think Pantas and Dumisani, Mandla and others were there ...(intervention)

MS MOHAMMED: Okay, when you questioned Buno Dlamini, what did he say?

MR KHUMALO: He said he hadn't been to our area for a while. Before this incident there was a certain man, my stepfather, Cleophas Sikakani, who was a policeman, who would sometimes arrest people for smoking dagga and he would take that dagga to the police station. He came to me one day and asked me to sell this dagga ...(intervention)

MS MOHAMMED: I'm just trying to establish what transpired when met Buno Dlamini that morning in question. You said you questioned him.

JUDGE POTGIETER: Did you assault him? You didn't assault him?

MR KHUMALO: No.

JUDGE POTGIETER: Alright, tell us what did you do to him.

MR KHUMALO:

...(intervention)

MS MOHAMMED: Did you assault Mr Buno?

MR KHUMALO: Yes.

MS MOHAMMED: What did you do?

MR KHUMALO: We had sjamboks, because at that time any offender was sjamboked.

MS MOHAMMED: So you sjamboked him.

MR KHUMALO: That's correct.

MS MOHAMMED: Okay, and then what happened?

MR KHUMALO:

MS MOHAMMED: Thank you, Mr Khumalo. I'm now going to take you to the next incident, which is the killing that occurred at Reservoir Hills in August 1988. How did it come about that you went to Reservoir Hills on that day?

MR KHUMALO:

...(intervention)

MS MOHAMMED: Mr Khumalo, sorry, you're going a bit too fast, I'm going to take you back to the point where you said "On that day Siphiso Kwela" and two others, and you gave their names.

MR KHUMALO:

...(intervention)

MS MOHAMMED: Okay, why did they come to see you?

MR KHUMALO:

MS MOHAMMED: Okay. What did they say to you?

MR KHUMALO: We first discussed the issue of leaving the country because of the situation that was prevalent then.

MS MOHAMMED: And then what happened?

MR KHUMALO:

...(intervention)

MS MOHAMMED: And what did they say?

MR KHUMALO:

...(intervention)

MS MOHAMMED: Mr Khumalo, when they brought you - after these two individuals had left you, after discussing their plans with you, what did you do then?

MR KHUMALO:

...(intervention)

MS MOHAMMED: Mr Khumalo, can you tell us at what point you met these other individuals who had planned to go across to this hotel. Where did you meet them?

MR KHUMALO:

...(intervention)

MS MOHAMMED: You said at that stage on that morning you were still undecided as to whether to participate in this or not, what was the factor or factors which changed your mind?

MR KHUMALO: At that time, Chairperson, I was still undecided because as I mentioned before, I was in hiding where I was residing and it was as good as being in prison because I never went out except for when I went out on patrol duty.

MS MOHAMMED: So Mr Khumalo, when you met these other individuals you were still undecided as to whether to participate or not.

MR KHUMALO: Yes, I was still trying to explain that I went out and looked across and I tried to ensure that when these people came to pick me up they do not find me home. I realised that if I went one way I will most likely meet comrades who would also question me on where I was going and I decided to use another road and as I went out I just met these two people on their way to see me and they asked me where I was going. That is Siphiso Kwela and Maxwell Nduyaki. That is, I met them on this other route.

MS MOHAMMED: Okay, and then what happened?

MR KHUMALO:

MS MOHAMMED: So what did you do?

MR KHUMALO:

MS MOHAMMED: And what happened when you all got there?

MR KHUMALO:

MS MOHAMMED: What did you all do with the money that you all obtained from this robbery?

MR KHUMALO: I wouldn't be able to say what we did, but I would be able to say what Philani, which is myself, what I've done and I'm not going to lie about it. I can't say we took the money and bought firearms and ammunition because we had already obtained firearms from other police. We also had obtained ammunition and we've gathered these from robbing them from other police.

...(intervention)

MS MOHAMMED: Mr Khumalo, the balance of the money, the R700 that was allocated to you, what happened to that?

ADV SANDI: Sorry, just finish the first part before you ask that.

Was this R300 in the end taken to your in-laws as you wanted it to happen? What happened to this R300?

MR KHUMALO: Thank you, Mr Chairman. This will be very much difficult for me.

...(intervention)

MS MOHAMMED: So did you give this R300 at some stage to the in-laws or not?

MR KHUMALO: Yes, did so, I was together with Dumisani.

MS MOHAMMED: Was this the only money that was given to you after the robbery?

MR KHUMALO: I'm not certain whether it was R300 because this thing happened a long time ago, but I do know that it was plus-minus R300, because at that time I had already bought a goat to send to that family. My real father, Khumalo, had done so. They had already paid something. I was paying this because there was a second child.

MS MOHAMMED: So if I understand you correctly, each of you got about a R1 000-odd from the proceeds of this.

MR KHUMALO: Yes, I would say so.

MS MOHAMMED: And of that amount that was allocated to you, about R300 was given to your in-laws.

MR KHUMALO: Yes.

MS MOHAMMED: Now what happened to the balance of the money?

MR KHUMALO: After we came back to Clermont, myself and Zweli and also Dumisani, we were still using that very same car we used in the robbery. Some of the money, I wouldn't be able to say how much did what. Maxwell was no longer with us and these were the people we were supposed to skip the country with. We did this together because we wanted to gather the money together and skip the country, but we couldn't contact each other.

MS MOHAMMED: Mr Khumalo, what had happened to the balance of the money that was allocated to you?

MR KHUMALO: I am doing my best to explain, I don't quite remember as to what happened to the money. What was left was to find some shoes because we knew that we were going to go outside South Africa. We also needed warm clothes and also we needed shorts because we were told that long pants we cannot wear them because they'll be trapped in the fence. I would say some of the money was used to buy those things to enable us to skip the country.

What I quite do remember is that even if I had bought those things, I was confused because Diba and Maxwell had disappeared, I couldn't hear from them. The only person that I saw just before I was arrested, before I went to kwaMashu where I was arrested, was Dumisani. The reason I went to kwaMashu was I wanted to get into contact with the comrades who were skipping the country, because quite a number of comrades from kwaMashu used to skip the country.

ADV SANDI: Sorry, just one question whilst you're talking about money. The money to buy the goat, where did that come from?

MR KHUMALO: This happened in 1984 and the buying of the goat was in 1985. This was at the time when I left school after Rachel was pregnant for the first-born. I took several jobs in Pinetown.

MS MOHAMMED: Mr Khumalo, that brings an end to your involvement in the Reservoir Hills matter. I want you to look at this bundle, page 108 of the bundle, paragraph 4 deals with this other incident of the stabbing of the South African Police member, is there anything further that you want to add to what is stated there?

MR KHUMALO: Yes. I think it is another incident which is important and I also requested amnesty on that incident.

...(intervention)

MS THABETHE: Mr Chair, can I come in here?

JUDGE POTGIETER: Yes, is this before us?

MS THABETHE: No. This was raised only in this affidavit, which is after the cut-off date.

JUDGE POTGIETER: Yes, it's not been investigated, it's not right for hearing.

MS THABETHE: It's out of the cut-off date, it's therefore - he first raised it in this affidavit, it doesn't form part of the other incidents he mentioned in his papers that were furnished before us.

JUDGE POTGIETER: Yes, so in spite of what the merits of this thing is, it was not looked into by the Commission at all, it was not prepared to be dealt with at this hearing.

MS THABETHE: Nor in any other hearing, Mr Chair, because it was raised long after - it was raised on the 16th of November 1999, after the cut-off date.

JUDGE POTGIETER: Ms Mohammed, on what basis are you dealing with this?

MS MOHAMMED: Mr Chairman, the applicant has said to me that this had formed part of his application and when Mr Mbatha had spoken to him he mentioned it at that stage and that is when it was put forward to him.

CHAIRPERSON: There's no mention of it at all in the applications, is there?

JUDGE POTGIETER: Was it mentioned at all earlier today?

MS THABETHE: No, no.

JUDGE POTGIETER: This is the first time that we're confronted with this.

MS THABETHE: If I may add, on page 39 of the bundle there is an incident which talks about disarming a policeman, but that was when they were coming from a funeral and this seems to suggest that it was in a wedding when this occurred and it can't form part of the incidents he applied for because it was only raised after the cut-off date. I would submit, Mr Chair, that we shouldn't consider this incident.

MS MOHAMMED: Mr Chairman, if I may just have a few minutes with the applicant.

MS MOHAMMED: Thank you, Mr Chairman.

The applicant states that on page 39 of his statement, paragraph 3, this deals with the incident in question and he says that on page 108, paragraph 4, it's an elaboration of that. He says that although the incident on page 39 refers to a funeral and the one on page 108 makes reference to a wedding, the wedding took place after the funeral.

MS THABETHE: Mr Chair, if I can respond.

CHAIRPERSON: I'm afraid I have great difficulty in accepting that explanation, where he talks about a funeral at which he officiated wholeheartedly, which ended in chaos and that thereafter this incident took place, as compared with the other incident where he overpowered a policeman, assaulted him with a clenched fist and then left him and returned to where there was a wedding.

MS MOHAMMED: Thank you, Mr Chairperson. I cannot take the matter any further.

MR KHUMALO: I would like to clarify this myself.

MS MOHAMMED: Mr Chairman, the applicant actually says to me that there is an explanation which was placed before the Committee when Mr Webster was on record. Now as we were not involved at that stage I'm not sure if the Committee would actually hear his explanation. He apparently had mentioned this to Mr Webster.

CHAIRPERSON: Does he not understand that for a matter to be heard by the Amnesty Committee, an amnesty application has to be filed before the cut-off date. You cannot put up a long rambling document and say "Well that's my amnesty application".

MS MOHAMMED: Yes, Mr Chairman.

CHAIRPERSON: We have agreed to hear evidence about the matter involving the hotel, because as you pointed out to us this morning, there is mention of it in the amnesty application, but there is no mention that you or anyone else have been able to show us, about this incident.

MS MOHAMMED: Yes, Mr Chairman, I see that. I can take the matter no further, Mr Chairman.

MS MOHAMMED: Thank you, Mr Chairman, I'm indebted to the Committee for the short adjournment. The applicant concedes that that last incident that involved the Security Police is not an incident that he's applying for amnesty for. Mr Chairman, that is the application of Mr Khumalo, I have nothing further.

CHAIRPERSON: I'm afraid I forgot to put something on my eye when we adjourned, I'm going to leave for one moment to do that. Can the rest of you just excuse me for a minute.

CROSS-EXAMINATION BY MR HARKOO: I wouldn't mind starting thank you, Mr Chairman.

Mr Khumalo, at the inception of your evidence you responded to the answer by your legal representative, that you confirm the statements that you made that are in this bundle of papers and you confirmed that those statements that you have made is in fact the truth, is that correct?

MR KHUMALO: What I don't quite follow is that which statement are we referring to now.

MR HARKOO: I'm going to confine myself primarily to the incident relating to the one that occurred at Reservoir Hills. Now at the inception of the evidence that you led, you were asked by your legal representative when reference was made to the statements, in particular pages 8 to 17 of your original application and then the English translation of pages 1 to 7, then it goes on throughout. The English versions being pages 35 to 54, and then again pages 105 to 109, where you briefly set out your involvement in a number of issues, and you were asked to confirm whether the allegations made in those statements are in fact true and you did confirm that at the inception of your evidence, is that correct?

MR KHUMALO: What I will explain is that the reason I had explained all the incidents which I took part in, including the incident of Reservoir Hills, I did explain that when I wrote the statement about the incident that occurred in Reservoir Hills, when I was still in Medium A in prison, I tried to explain the situation which I encountered. The situation forced me to write some other events which didn't occur as they're written ...(intervention)

MR HARKOO: I will give you a chance to explain, Mr Khumalo. My question was simple, and that is, at the inception of this evidence you confirmed the correctness of those statements that you've already made. Is that not true? It's a simple yes or no answer.

MR KHUMALO: The Reservoir Hills statement it's not entirely true and the rest of the statements are true, and the truth about the Reservoir Hills incident is what I've already related here before this Committee. That is why I did explain why I wrote the Reservoir Hills incident the way I wrote it, because it was because of the situation.

MR HARKOO: Are you now saying that the allegations made in this bundle of papers relating to the incident at Reservoir Hills, is not entirely correct?

MR KHUMALO: I will put it this way. Things which happened the way they happened, they are like that, then there are other things which I didn't, or things that didn't occur. I just put them there because of the situation, but today I did relate things the way they were.

MR HARKOO: Are you now saying, Mr Khumalo, that you want me to discard those statements that you've made and refer primarily to what you've made mention of here in this evidence, or are you prepared to accept some of the facts or allegations that you've made that are set out in these papers?

MR KHUMALO: I will request you to do exactly that, take my testimony what I had said today before this Committee, because this Committee is the Truth Commission. It's the Truth and Reconciliation Commission, it's not a Committee of lies and destruction.

CHAIRPERSON: I think there should be a distinction made between the statement at page 35, which is nothing more than a statement, and the affidavit at page 105, which is an affidavit that was sworn to, as was the other document at page 135. Oh no, the one at page 135 is not sworn to.

MR HARKOO: Except that, Mr Chairman, the applicant today under oath then confirmed the correctness of the ...(intervention)

CHAIRPERSON: Yes, but I'm suggesting we put it to him, don't put - you have put then as if they were the same sort of document. I think you should say the statement and the affidavit.

MR HARKOO: Thank you, Mr Chairman.

CHAIRPERSON: Because the explanation which he gave at the beginning of his evidence, as I understood it, it related mainly to the statement he made in 1996.

MR HARKOO: Yes.

Mr Khumalo, the statement that you've made in 1996, I take it that at that point in time the incidents that you referred to were a lot more vivid in your mind, is that correct?

MR KHUMALO: In 1996?

MR HARKOO: Yes, the initial statement that you've made which is from pages 35 up to 54.

MR KHUMALO: Yes, it was still clear. It is difficult for me to forget about this, but I was forced to write a statement which was not entirely true, because I was facing to go to prison and be with my co-accused who had already been in prison and I was forced to lie or to say something which was not entirely true.

MR HARKOO: And I take it now that whilst you're here today under oath, you are not telling a lie. So we could go on.

MR KHUMALO: I will put it this way. Today on the 23rd in the year 2000, I didn't say anything that I just formulated, everything I said here was not a lie, it's something that I remember, things that I recall as they were. I did my best to tell the truth, I didn't stray to tell a lie.

MR HARKOO: Okay. In your evidence you mentioned that you were approached by certain persons regarding the incident at Reservoir Hills, you were approached that Friday morning, precisely where were you at that point in time? Where you at Clermont or at kwaMashu, where were you?

MR KHUMALO: I don't quite follow your question, you said I approached someone.

MR HARKOO: When you were approached to join in the robbery, where were you? Were you at kwaMashu or were you at Clermont?

MR KHUMALO: I was in Clermont.

MR HARKOO: You've mentioned that there are certain people who are criminals and driving good cars, these people that approached you, would you regard them as criminals or would you regard them as comrades?

MR KHUMALO: The situation at the time, I will say as kids when we grew up, before one could tell the difference between white and black, anyone who was driving a beautiful car, we will take that person as a role model, should it be a black person or a white person. We've never perceived such a person as an enemy, but I cannot say that person is a comrade.

MR HARKOO: So when these persons that approached you, you are saying they were not comrades at that point in time.

MR KHUMALO: This was a hypothetical statement, but now if you're asking me about Diba, Maxwell, now we're talking about comrades who came to me, who were forced by a certain situation if in their hearts it was the way they put it to me. Because the situation in Clermont was terrible, was bad, even the ...(indistinct) couldn't sleep in the tree because gunfire were all over the place.

MR HARKOO: Precisely who was it that approached you? Was it Diba or Maxwell?

MR KHUMALO: Both of them.

MR HARKOO: You mentioned that you were very uncertain as to whether you wanted to join them in this venture, I take it that you were not certain because you appreciated at that point in time that it is an activity that is not carried out by comrades, is that correct?

MR KHUMALO: If I put it that way I meant clearly that ANC and their armed struggle never once approved of robbery, robbery was not something they approved for comrades to do, but these things happened. When I grew up I knew that if you had robbed and then took the money and skipped the country and joined MK, MK will not send you back and say you've robbed the money in order to join them, you will join and you will serve the ANC.

MR HARKOO: Yes, I want to put it to you that as you've mentioned you were not certain, you were unsure, because it is an activity that is not carried out by comrades, that you appreciated that it was in fact a criminal activity and that is why you were not certain as to whether you would join the others in this venture, is that correct?

MR KHUMALO: You are putting it correctly. In 1988 I saw - as they were telling me I saw this thing at first like that, but in that period in Clermont, a person will simply come to you and tell you to do whatever which was a criminal activity. In my situation it was easy for someone like me to find himself at that time in that position or getting involved in some criminal activity, because in that time it was scary, people were dying and to do any criminal activity was also dangerous and will put your life and your family life in a very difficult position.

My position at the same time was much, much more difficult because I was from an SP family and comrades were reluctant in trusting me a hundred percent. In other words, whatever they came to me with, if they had approached me, it was not as easy for me to simply deny joining the comrades. That is why I also thought that I should run away at first and that is why I was hesitant, but unfortunately I couldn't run away before they came. They found me. It was fortunate for them and so unfortunate for me and I didn't want to show them that I was not going along with that idea.

CHAIRPERSON: You've told us that you had this problem that they were suspicious of you at times, but my recollection is you also told frequently that they looked upon you as a leader. Is that correct?

MR KHUMALO: Yes, it is like that. As I've already explained, comrades were quite a number, they were different. Among them some of them were those who were reluctant in trusting me and among them there were a few like Happy Hlope, who used to stand by me and convince comrades to trust in me. Unfortunately I didn't write a letter to comrade Happy and tell him about my situation, but I did write a letter to comrade Siphiso Kamane, who was a student at Durban Westville and we were also detained together.

In 1988 whilst I was at home for two days, I wrote a letter and I sent it where he was staying. He read the letter and he send a message that he was going to talk to the comrades about my problem. I don't know whether he did that, but I had already told Mr Archie and he was one of the people who helped me in running away from home, but he knew that some comrades trusted in me.

MR HARKOO: I'm going to try and ask you a few questions that will entail a yes or no answer, okay. Now you did not receive any orders from any organisation to commit this robbery, is that correct?

MR KHUMALO: I did not.

MR HARKOO: Thank you. Now you are now saying that you joined in this robbery, or you joined in this venture because you needed to satisfy the other comrades that you are also part of the struggle and that you are with them in this whole venture, is that correct?

MR KHUMALO: I would say yes, at the time that is how I thought about it.

MR HARKOO: And that was your primary reason as to why you joined the others in this robbery, correct?

MR KHUMALO: Sir, it is an important reason, but we must also take cognisance of whether I as an individual did not want to skip the country, was I not attracted to this robbery also for the reason that I wanted to skip the country to join the ANC, and also for the fear that I felt inside my heart, not a fear of an individual, but I was afraid for the reaction that I would get from other comrades should it be discovered that I had committed this act. The reason for going there to take part is also for the fact that I did want to acquire money so as to enable me to skip the country.

MR HARKOO: How much money did you require to skip the country? Approximately.

MR KHUMALO: I did not require cash as such. Until such time that these two comrades approached me that there was money available that would assist us in escaping into exile, prior to that I was of the belief that the UDF and the ANC had means of enabling people to skip the country. Also, there were people who did this voluntarily, because joining the ANC or going abroad to join the ANC, was not like organising an outing next the beach. Sometimes people did organise transport that would perhaps take them towards the border, say the Swaziland border, so that they are able to skip the border.

MR HARKOO: Yes, precisely, and this is the point I'm trying to make, that you didn't need the money to go to Lusaka out of the proceeds from this robbery, isn't that so?

MR KHUMALO: I will put it that way, that yes, from what I thought I did not think that I needed to acquire money from such means to be able to skip the country.

MR HARKOO: Yes, and furthermore, your father was the owner of taxis, isn't that so?

MR KHUMALO: Are you referring to my natural father?

MR HARKOO: Your natural father, yes.

MR KHUMALO: No, at that time my father was a mechanic, he would acquire vehicles and fix them up and sell them thereafter. He was not a taxi business person. Because even at this point he is not a well-to-do taxi owner.

MR HARKOO: Well whilst he may not be well-to-do, if you needed to go through to Lusaka, he would have helped you, isn't that so? Had you approached him?

MR KHUMALO: This is very painful for me. You see, my father, Mr Khumalo, could not even buy me a pair of socks ...(intervention)

MR HARKOO: Yes, all I need to know is that had you approached your father, would he have assisted you?

MR KHUMALO: No.

MR HARKOO: But he did assist you when he bought the goat, didn't he?

MR KHUMALO: He did not assist me, I bought that goat myself from the money I made from temporary jobs.

MR HARKOO: Yes, but earlier in your evidence when you were questioned by the Chair, you said you received by working part-time, but earlier in your evidence you mentioned that your father assisted in buying the goat. Yes, isn't that so?

MR KHUMALO: Perhaps I was not well understood. What I stated was, I resided at Clermont and my father at Mzinyati in Inanda, therefore it was proper that girls from my girlfriends neighbourhood had to go to my father's place and because of the fact that Cleophas did not want anything to do with this woman, they were forced to go to my father's house, that is Mr Khumalo. That is where they received money that is normally used to cleanse the house. That amount is about R60. But with regards to the goat, I bought that goat from the money that I made from the casual work I did at Highway Mill. That was before I went to Pietermaritzburg to get another job so that I could look after my child.

CHAIRPERSON: My note is that you said your father had bought a goat. After you were telling us about getting Dumisani to come with you and take R300 to your in-laws, you had damaged their daughter who had had two children and at that stage you then said you went with Dumisani, that your father had previously bought a goat. That's my colleague's note. We can check the record and hear you say it if necessary.

MR KHUMALO: I would not have a problem with that. It is also possible that I may have made a mistake or perhaps I was not well understood when I mentioned that, but I bought the goat myself. My mother can attest to that fact.

MR HARKOO: Okay. Now the point is that had you approached, for example, had you approached the ANC or the UDF at that point in time, they would have assisted you in going to Lusaka, isn't that so?

MR KHUMALO: I would say yes, I had done before. I don't know if I may explain that further.

MR HARKOO: Yes, you did and that is why I want to put it to you that when you told this Committee that the plan was to get the money and then go to Lusaka, there is no link, there is no bearing on the issue of going to Lusaka and the robbery.

MR KHUMALO: I will repeat what I have stated before. Prior to 1988, this intention of the desire to go to Lusaka had been with me. I knew about MK, APLA and other organisations prior to 1988, it was something that I knew before this time. I even informed Mr Archie Gumede after my detention that I was inside a terrible situation, that I would like to go outside the borders of this country. Mr Gumede's complaint was "If you leave this country, comrades such as Madala would have no-one to look up to because you are the one person whom they are able to respect and listen to." We were always in Mr Gumede's company and we looked after him, because he had no-one to protect him. In that way we always wondered how he survived attacks on him, that is why we were always in his company, to accompany him wherever he went.

MR HARKOO: Okay now Mr Khumalo, the point I was going to make is that the robbery would have had no bearing as to whether you would have gone to Lusaka or not gone to Lusaka. You've mentioned that the planning was discussed with you that morning, or the robbery incident was discussed with you and you had time to think about it. It is quite obvious then that you appreciated the wrongfulness of your actions at that point in time, isn't that so?

MR KHUMALO: Sir, sometimes a man has to think deeply. At no point did I enjoy or was enthusiastic about robbing anyone. If perhaps my leaders or UDF leaders were robbers, I would perhaps say I was proud of what happened in Reservoir Hills, but that is not so. I have never prided myself on what happened. Up to this day I do not take pride in what happened. That is why I also applied for amnesty. It is not really an intention to perhaps beg for forgiveness or for the people at Reservoir Hills to forgive me, but I wanted to explain to be able to tell, divulge everything that happened.

MR HARKOO: Yes, I appreciate that, but the point is that at that point in time prior to you having continued with the incident, you had time to think and you appreciated your wrongfulness, you appreciated that it was not the right thing to do and that is the reason why you didn't make a decision on the turn, you thought about it. Isn't that so?

MR KHUMALO: That is correct, that is true.

CHAIRPERSON: And if you could have done it you would have walked away from it, wouldn't you?

MR KHUMALO: If I was an ordinary person in the street who was not involved in a lot of other things, perhaps I could have got an opportunity to run away. If I had not met these persons when I left that place of residence, perhaps I would have been able to flee, but unfortunately I did meet them on the way. If perhaps on a Thursday prior to this day I could have found a place to hide, yes I would have.

MR HARKOO: In your evidence earlier I didn't quite understand what you said about the area being Reservoir Hills. At one stage you mentioned that you have never been there and then you at some stage went on to say well you knew the area because you schooled around there. Now what is the position, have you been to this area before?

MR KHUMALO: For speakers of isiZulu, they would understand the nature of the language. When I say I did not know Reservoir Hills I meant I had not been inside the area before, but as a person who was schooled at kwaMashu, I will see it from the bus as we were passing.

MR HARKOO: So you have been - so you've schooled nearby, you have been to the area, is that correct now?

MR KHUMALO: Let me restate this. I did pass by Reservoir Hills on my way to school.

MR HARKOO: So you knew the area.

MR KHUMALO: From what I saw of it in the bus.

MR HARKOO: Yes, so when you mentioned earlier on that you've never been there, that wasn't true, isn't that so?

MR KHUMALO: Sir, I would make you an example. I know FNB stadium from seeing it on TV, but I've never been there. So if I say I know Reservoir Hills, I did not mean I had been inside the area. For you to know the area it is not necessary for you to have been inside.

CHAIRPERSON: Where did the bus run from to kwaMashu?

MR KHUMALO: From Clermont and it will pass through Reservoir Hills and the hotel would be visible from that route.

MR HARKOO: Okay. Your involvement in the incident itself, you were merely acting as a guard, as a look-out person, isn't that so?

MR KHUMALO: That is correct.

MR HARKOO: Now you've mentioned in your evidence that you only went in after you heard at least two shots being fired.

MR KHUMALO: That's correct.

MR HARKOO: So you cannot say precisely what happened inside before you went there.

MR KHUMALO: I like that statement. True it is difficult for me to explain what happened or who did what, but I know what I did. When I made the statement I was of the view that the person who shot the people inside was Siphiso, because he's the only one who had a firearm. I only learnt later that people who were killed there were stabbed to death, because I did not see who assaulted whom with what.

MR HARKOO: Yes, you did not see what happened prior to you going in. Now did any of your colleagues tell you what happened inside, after the incident?

MR KHUMALO: The situation in which we found ourselves was new to us, none amongst us had been involved in such an incident, therefore we were not even able to discuss who did what or what had happened, but the person who carried the firearm said he had been able to shoot and he had believed that if there were people who were killed in the incident, they would have died from gunshot wounds. That is what we all believed. That was until I learnt that those people were stabbed.

MR HARKOO: Yes, but up until the time that you were charged, or you've heard that people were killed, you were not informed, you were not told by your colleagues as to what happened inside, isn't that so? Apart from the fact that they just shot.

MR KHUMALO: It is not easy to admit to anything after committing such a crime. Even if I had done something like that, if I had shot someone, I do not think I would have admitted that because at that time the South African Police were able to torture a person to an extent that you would admit to something you did not do. That is why no-one would volunteer the information of who did what. That is also the reason why I think I did not even get to hear who had killed the people inside.

MR HARKOO: Yes. Mr Khumalo, I want to refer you to page 107 of your documents. At page 107, about eight lines from the bottom, you state there in your affidavit:

Do you see that?

MR KHUMALO: Yes, I do.

MR HARKOO: Yes. You give an explanation as to why you entered and your explanation is that the victims did not heed a warning, is that correct?

MR KHUMALO: I would say yes, because the windows and the door are made of glass. Although I did not see who fired a shot and as I stepped into the room I could see the person who had a firearm pointed upwards, which means that perhaps they did not take heed of what he was saying. I do not know whether I explained this, but the person who was next to the door was gesturing something with his hands. He is the person who fell to the ground. I did not know whether the bullet that had been fired upwards is the one that had hit him or perhaps he had been stabbed.

MR HARKOO: Yes, the point Mr Khumalo, as you've said earlier, prior to you entering you did not know what was going on inside, is that correct?

MR KHUMALO: I did not know, except for the gunshot that I heard and I realised that that drew the attention of people outside.

MR HARKOO: Yes. And following on that, the reason or the explanation that you give for entering follows that it cannot be true.

MR KHUMALO: I do not quite follow your reasoning, do you perhaps have another reason why I entered the store?

MR KHUMALO: The only reason that I could find, Mr Khumalo, is that you are not telling the truth. You haven't told the truth then and you are not telling the truth now. That is my explanation.

MR KHUMALO: I will then ask you Sir, at what point did I not tell the truth because as I stated, I stood outside so that I am on the lookout, but when the shot was fired I was forced to go inside because I did not want to leave my comrades inside not knowing whether they are being fired at or they are the people doing the shooting and as I stepped inside I saw Siphiso, he was behind the counter and pointing his firearm upwards.

MR HARKOO: Mr Khumalo, have you seen the affidavit that was submitted by Mrs Sitima(?) Reddy and was filed in these documents? It may not be part of the bundle, but it was attached separately. Mr Chairperson and Members of the Committee, I think you have a copy of the affidavit.

You see in that document Mrs Reddy attempts to explain what transpired, what she's finally heard of the incident and on the second page, it begins on the top, referring to her late husband, if we could start at the first page, at the bottom she goes on to state:

Now you cannot dispute that prior to your entrance in that bottle store, that it could very well have been those persons that were inside may have said "Take what you want but leave us alone". It may not have been those words but the gist of it.

MR KHUMALO: Sir, we cannot get into a lengthy debate about that. It is true I did not hear them, hear anything of that nature and I did not see them speaking to a woman, but when I went inside there were males inside the bottle store ...(intervention)

MR HARKOO: Yes sorry, that document was drawn by Mrs Reddy referring to what she has been informed by her late husband who was in the bottle store. So likewise, as you say, you cannot dispute that, you also cannot categorically state that those persons who were inside did not heed any warning.

MR KHUMALO: Yes, I cannot dispute that.

MR HARKOO: And for the record, Mr Chairperson, I should have pointed this out earlier, the post-mortem on page 153, reflects the male being 28, plus-minus 28 years old. My instructions are that this person was in fact 17 years old, he was in matric, but he looked fairly mature and it could have been an oversight on the part of the pathologist.

CHAIRPERSON: While we're on that, it's my impression and I speak subject to correction, that none of the two post-mortems, neither of them refer to any bullet wounds, all stab-wounds, or incised wounds.

MR HARKOO: Yes, that would be correct.

As was pointed out, Mr Khumalo, you also cannot dispute that those persons who were in fact killed, were killed through stab-wounds and not bullet wounds. They were stabbed.

MR KHUMALO: That is correct, Sir.

MR HARKOO: And if I refer you to the post-mortem report, that of the - I think it is on page 154, if you look at the middle of that page, this person had stab-wounds, among other places, on the neck and on around the shoulder area. It says on point number two in the middle of the page:

meaning the shoulder areas. So it is quite apparent that this person was in fact stabbed a number of times in that area. You cannot dispute that can you, because you haven't seen it?

MR KHUMALO: That is correct, I did not see when that happened.

MR HARKOO: But the incident as you see it now, I'm sure you will agree with me is clearly an indication or an impression that these people were mercilessly and indiscriminately attacked. Isn't that so?

MR KHUMALO: That's correct.

MR HARKOO: Yes. And if this was an attempt to merely gain money and go away, they could very well have taken the money and gone. Like what you've done when you ran in. As you say in your version, you grabbed the monies from the tins and the till and you ran out. They could have also done that. Isn't that so?

MR KHUMALO: As I mentioned before I cannot speak on their behalf, therefore I would not venture to answer on their behalf, because I do not know what situation they faced when they went inside, but when I went inside I did what was our primary aim, that is to take the money and leave. It is therefore difficult to state what situation they found themselves in for them to stab Mr Reddy.

MR HARKOO: Yes, but you will accept that they could very well have gone in and taken the stuff, taken the money and gone out without having to attack anybody.

MR KHUMALO: The people I'm referring to, that is Siphiso and Maxwell, grew up with me and were in the struggle with me. Dumisani and the driver were people I did not know very well, but I do not know anything about them, that they were involved in robberies and such matters. So I cannot say if there was any reason that persuaded or pressured them into becoming murderers. But it hurt me that I was involved in such an act because I had been involved in political conflict and people who died in the course of that conflict did not bother me, but I did not know that when we attained our freedom I would be afforded this opportunity to come before this Committee and divulge whatever matters. That is how I came about to be able to divulge what happened at that incident.

MR HARKOO: Mr Khumalo, shortly before the incident you were aware that these persons, or at least one of them, had a firearm, isn't that so?

MR KHUMALO: Yes.

MR HARKOO: And you were aware that one of them had a knife.

MR KHUMALO: Yes.

MR HARKOO: You were also - from what I understand, you were not too happy about having a firearm that did not work.

MR KHUMALO: Sir, whether the gun worked or did not work was not a factor that really concerned me, because if I had wanted a firearm that worked I had access to more than eight firearms. If it had been my intention to use them, because when these people approached me they knew that I had firearms, therefore I could have used one of those and I could have even borrowed some to my co-accused.

ADV SANDI: Sorry, just explain this to me, how did it - in the light of what you have just said now, how did it come about then that you ended up using a defective firearm?

MR KHUMALO: The firearm that we are referring to, as I mentioned before, Diba and Maxwell were comrades with whom I was involved in protecting the leaders at the township. When this firearm was first brought to me it was mentioned that it does not work. I had this firearm on one day, that is before this incident at Reservoir Hills, and I wanted to test it. I pointed it upwards and fired it and therefore I went back to these other comrades and told them that the firearm worked. After several months they came back to me and told me that it doesn't work. The reason why they gave it to me was because I was familiar with firearms and because I had handled that firearm before. Therefore, although it did not work they were confident that if I point it at people they would be convinced that indeed it does work.

CHAIRPERSON: How much longer are you going to be? More than two minutes?

MR HARKOO: Yes.

CHAIRPERSON: Would this be a convenient stage, because arrangements, I gather, have been made to return persons to the prison and we were told then that they would be able to do so at four thirty. I think we should honour that undertaking and take the adjournment now till 9 o'clock tomorrow morning.

I would like to put something on record though at this stage, I'm not quite sure exactly what I put to you, but I think I put to you that there was no evidence of any gunshot wounds, but if you look at page 169, there's a report of somebody being taken to hospital with a gunshot wound. But perhaps during the adjournment somebody could check up who these people are on page 168 and 169, identify them and tell us tomorrow morning.

MR HARKOO: Yes, there were gunshot wounds, except that those that were killed ...

CHAIRPERSON: Were killed weren't, but the others.

MR HARKOO: The others were, two others were shot.

CHAIRPERSON: If you can check on that.

MR HARKOO: Yes.

CHAIRPERSON: Right, we'll adjourn till 9 o'clock tomorrow morning.