--------------------------------------------------------------------------CHAIRPERSON: I apologise for the late start. We will be commencing our hearings today with the amnesty applications of Messrs M.K. Ngwenya, J.M. Maponyane and M.P. Khubheka. But before we start, I would just like to briefly introduce the Panel to you.

On my right is Judge John Motata. He is attached to the Transvaal Division of the High Court and he is a member of the Amnesty Committee. On my left is Adv Ntsiki Sandi, also a member of the Amnesty Committee. He is an Advocate and he comes from East London. I am Selwyn Miller, I am a Judge of the High Court, attached to the Transkei Division of that court and also a member of the Amnesty Committee.

Before we commence with the applications that I have just mentioned, I would request the legal representatives to please place themselves on record.

Chairperson, I am Vuka Mohlaba, I am an Attorney from Pretoria, I am acting for all the three applicants.

CHAIRPERSON: Thank you Mr Mohlaba.

MR MAPOMA: Chairperson, I am Zuko Mapoma, the leader of evidence.

CHAIRPERSON: Thank you Mr Mapoma. Yes, Mr Mohlaba.

MR MOHLABA: Thank you Mr Chairperson. I will start by leading the first applicant, Ngwenya Chairperson. He will give evidence in English, he will however when necessary, he may require the assistance of a Zulu interpreter.

CHAIRPERSON: Yes, certainly.

MFANAFUTHI KENNETH NGWENYA: (sworn states)

CHAIRPERSON: Thank you. Mr Mohlaba.

EXAMINATION BY MR MOHLABA: Thank you Chairperson.

MR MAPOMA: Excuse me Chairperson, may I just ask Chairperson, just before we start leading evidence, I want to for the record Chairperson, make an announcement regarding the victims in this matter.

CHAIRPERSON: Yes.

MR MAPOMA: I have got here Ms Linda Oosthuizen, who is a sister to the deceased Stephen Oosthuizen. I am going to take care of her interests and the other victims were robbed, that is Mr and Mrs le Krish. I have spoken to Mrs le Krish, she is in Cape Town, she has indicated that she is not going to attend the hearing, the Committee may go on, she leaves it to the Committee.

CHAIRPERSON: Thank you Mr Mapoma. Mr Mohlaba?

MR MOHLABA: Thank you Chairperson. Mr Ngwenya, for the record, may you indicate to the Committee where were you born?

MR NGWENYA: I was born on the 16th of May 1971.

MR MOHLABA: And where?

MR NGWENYA: I was born in Matatine, that is a township outside Newcastle, in KwaZulu Natal.

MR MOHLABA: Can you briefly explain to the Committee where you attended school and your highest standard passed?

MR NGWENYA: I attended school there in Matatine and I finished my matric there.

MR MOHLABA: You are the applicant, you are applying for amnesty and it will be noted in paragraph 9(a) that you are applying for amnesty in respect of robbery with aggravating circumstances, is that correct?

MR NGWENYA: Yes, that is correct.

MR MOHLABA: Early this morning, during our consultation you indicated to me that you were also responsible for the death of Cons Oosthuizen and you have also participated in the attempted murder of Mr Jacobs, is that correct?

MR NGWENYA: That is correct, the three of us participated.

MR MOHLABA: Is it your desire to have those offences incorporated into your application?

MR NGWENYA: Yes, that is our desire.

MR MOHLABA: You are applying for amnesty on the basis that these offences were committed in pursuance to a political objective.

CHAIRPERSON: Sorry Mr Mohlaba, why wasn't an application made in respect of the murder and the attempted murder?

MR NGWENYA: When we filled in the applications, we were of the view that as the TRC fell under the jurisdiction of a Justice Minister, they worked hand in hand with the Justice Minister, so we thought there was a link between the courts and the TRC, so that the evidence that we had to use on our application, we had to use the evidence that was on court records, so basically we used the evidence that appeared on the court records. Because according to the court records, there was not evidence as to the murder, linking us to the murder ...(indistinct), even though we did commit the murder, but there was no evidence. We used the evidence that was on the trial.

CHAIRPERSON: Yes, because we will have to perhaps hear argument on it, because we are a creature of statute, and our jurisdiction is restricted to the powers that are conferred us by the relevant Act, namely the Promotion of National Unity and Reconciliation Act, 34 of 1995. In that Act it says that inter alia, that applications have to be made by a certain date and we don't have the power or authority to condone non-compliance, we don't have an inherent jurisdiction like the Courts have for instance because we are restricted to what is contained in the Act.

I see however, that Mr Maponyane, he has applied for murder and attempted murder, I notice on the form, if one takes a look at page - sorry, I am just trying to find my way around here - page 22 of the papers, Maponyane at least, robbery, murder and attempted murder.

In any event, I just want to raise that, I just mention that, but you can proceed. Mr Khubheka as well, also makes mention of the murder and the attempted murder in his application. Mr Mohlaba?

MR MOHLABA: Thank you Chairperson. In support of your application, you have furnished certain statements to the Investigating Committee, which briefly denies any involvement in the murder of Cons Oosthuizen and the attempted murder of Jacobs, do you still stand by those statements?

MR NGWENYA: No, those statements were not the truth, I don't stand by those statements, they are not the truth. As I have tried to explain, I filled in the forms with the idea, or with the opinion that I have to use the evidence that was on the court records.

MR MOHLABA: You are applying for amnesty on the basis that you were, these offences were committed pursuant to a political objective. Did you belong ...

MR NGWENYA: Yes, I am a supporter of the African National Congress, previously when I was still at school, back home, I was a member of NAYO, which was a substructure of the UDF at that time.

ADV SANDI: Sorry, can you please give us in full, what do you mean by NAYO?

MR NGWENYA: NAYO, it was the Newcastle Youth Organisation.

MR MOHLABA: Did you play any role in this organisation, what part were you playing?

MR NGWENYA: Well, firstly I would start by trying to highlight my first involvement in politics, because in KwaZulu Natal, at the time when I grew up when I attended school, it was the time when we were still taught Inkatha as a subject at school. So now, when I became aware of what was politically happening around me, and what was happening in the country at that moment, I also became part of the people who defied Inkatha as a subject, so that created some enmity between us and the Inkatha, it was still Inkatha YeSizwe, before it became IFP.

There was this conflict between us, UDF supporters or NAYO members, with the Inkatha members.

MR MOHLABA: Can you take us through the incident of the 7th of October 1991, that is the robbery case, how was that planned and can you briefly explain how that was executed?

MR NGWENYA: Yes. We received a hint about this place in Illovo, because we were part of a defence structure in Alexandra, so I live right in front of the hostel, so now we are being attacked, so we never had guns at the moment, we only had small guns.

Jacob came with the plan, in fact his cousin who lived at us in the yard, told us that Jacob has a plan about this particular place, where there are, they once broke into and they found gun safes and ammunition for pump action and some carry bag for rifles.

CHAIRPERSON: Sorry, when you say Jacob, do you mean Mr Maponyane, your co-applicant?

MR NGWENYA: Yes, Mr Maponyane. So we went there, we talked about this and one day when we were five in number, it was the three of us and then it was Elvis and Johnny, they are both deceased now, they died during the violence in Alexandra at that time, we went by Elvis' bakkie. When we went there, we had two guns with us. We had, I had a .32 revolver and Mr Khubheka had a 9mm.

When we reached, we also had knives. When we reached the place, we found four occupants in the house, so we held them up ...

CHAIRPERSON: Sorry, what did you do, did you break into the place?

MR NGWENYA: No, no, we did not break into the place, the door was open, they were just sitting there.

CHAIRPERSON: Was it during the night time or the day time?

MR NGWENYA: Yes, it was dusk, it was about seven o'clock, or it was beginning to get dark. It was not during the day. When we got in there, and then we told them that it is a robbery, we wanted guns.

CHAIRPERSON: Sorry, this place, was it just a residential house?

MR NGWENYA: Yes.

CHAIRPERSON: Yes?

MR NGWENYA: So when, there was a problem now with the safes, because they said they were still looking for, they don't know where they placed the keys for the safe, so we looked and we found the safe keys. I and Mr Maponyane went up with Mrs Le Krish, went up and then, when - because the house is a double-storey, she opened, there were two safes, there was a big safe and a small safe, she opened the small safe. Before she opened the safe, we found a .38 on top of the wardrobe.

She opened the small safe and then we got ammunition in boxes, and we also got a 44 revolver there. Before we could go to the bigger safe, I told Maponyane to go down, because down there we had three guys with four people, three people and one gun, so I told him to go and take one gun to those guys down there.

Immediately after he left, I heard there was some buzzing noise inside the room, inside the room, and then I asked Mrs le Krish "what was that", and she told me that it was a signal, it is a response signal, some sort of, there were people outside, securities or something like that. Then now, I said "okay, let's go out before ...", and then we went out. On our way out, I was going to inform the other guys down "look out, if maybe there are other people here".

So, before I reached the stairs, I saw Jacob coming back now, Maponyane coming back. At the time I saw a flash of a torch outside the house. So now, that is when the shooting started. I heard a shot from outside, so we started shooting. At the time we thought maybe it was the police who was outside, so there was this exchange of fire between us and the security guard who was outside up until the time that we managed to escape the place.

So, on our escaping the place, we met again at the golf course, because the house is next to a golf course, the Wanderers golf course. Four of us met there, it was me, Mr Khubheka, Mr Maponyane and Elvis, the owner of the car. Elvis, at that time he sprained his ankle because he jumped from the double-storey down, he sprained his ankle and then we talked about Johnny, where was he? That was when I also heard the noise, the people who were exchanging fire, were in fact the security guards, not the police, because Elvis had seen them.

So we were concerned about Johnny, because he was nowhere to be seen, so we thought maybe he might have been hurt during the shoot-out, because there was a lot of shooting between us. And then Elvis was also concerned about his car, because the car, where we parked it, it could have set a trail for the police to follow, because it would have linked him directly, the car, because it belonged to him.

So there was this issue that he must try and go back to, go back to the car. So as he was now injured, Elvis, he sprained his ankle, he was limping, so I took the car keys from him. When I took the car keys from him, with the intention that I will go back with Jacob and Khubheka and go and fetch the car, and in the process look for Johnny, maybe I might see him along the way, Elvis was then, he boarded a taxi. We were now at Corlett Drive, so on our way back to fetch the car, we saw a 10111 vehicle approaching us, and then it passed us, but then it made a U-turn immediately after it had passed us, it made a U-turn and came back to us.

When it came back to us, it stopped, there was some sort of a parking there, it was an old road that was closed, now there was a ramp, some sort of a ramp at the street, so they parked the car there, opened up the doors very violently and came up with guns. It happened very fast, the incident.

Because I was next to the guy who was on the passenger side, so when they, they had guns in their hands already by that time, so when they opened the doors, I had the car keys in my hands, I went straight to the guy who, I had a gun in my pocket at that stage, it was empty by then, because I wasted all the shots during the robbery. I knew that he was going to catch, I don't know what made me go to him, but I instinctively I found myself going to him. So when I went to him with the intention that maybe he is going to search me or something like that, and then I heard a shot, a gunshot. Then after that single shot, there was a lot of gunshots now. I ducked, so what I see, what happened next because I was facing the two policemen, I saw the other one fall on the other side of the car.

When he fell down, I also ducked because now, fire was exchanged, I was in the middle. I ducked down, when I ducked down, there was this shooting, this guy also, he was shooting, I saw that he was also hit somewhere in the shoulder, because he cried out and he fell, but he kept on shooting. So when, because the doors were open, I was shielding myself, using the door. I saw now the rifle, because it was placed on the passenger side, down on the floor.

After the shooting has ended, because now there was this noise, cars braking, making U-turns, going back and running back, so I grabbed the R5 and then after I grabbed it, I saw that, I also wanted to take the other guns, but then I was not sure whether these two guys were unconscious or what or maybe they were out of ammunition, so I wasn't able to go and fetch the two guns that they were using, the 9mm that are used by the cops. I had an R5 in my hand by then.

So then the other two guys were nowhere to be seen, the guys that I was with, that is Khubheka and Maponyane. So I fled again and hid the R5 somewhere in the flowers. There were flats there along the road, and then I hid the R5 there, which we fetched later on. I boarded a taxi and then we met again in Alexandra.

MR MOHLABA: Do you know who was exchanging fire with the two police officers?

MR NGWENYA: Yes, the people who were exchanging fire with the two police officers are my co-applicants, Khubheka and Maponyane, because I was with them at the time when we were confronted by the police.

JUDGE MOTATA: And Elvis?

MR NGWENYA: When we went back to go and fetch the car, Elvis was no longer with us, because he had sprained his ankle and then he gave me the car keys. So, we intended that he boarded a taxi back to Alexandra. So when we went back to fetch the car and look for Johnny in the process, we were now three, we were no longer four, because Elvis now was left behind.

CHAIRPERSON: Did you fire with the R5 at all?

MR NGWENYA: At that time?

CHAIRPERSON: Yes?

MR NGWENYA: No, I did not fire with the R5.

CHAIRPERSON: And your, the firearm that you had, had no ammunition?

MR NGWENYA: Yes, it had no ammunition.

JUDGE MOTATA: Thank you, you may proceed Mr Mohlaba.

MR MOHLABA: Thank you Chair. And then you, who were you reporting to, were you members of an establishment and can you name it?

MR NGWENYA: Yes, because of the violence that was taking place there in Alexandra, living right in front of the hostel, seeing people being killed for their political beliefs, because they were not in a way associated with IFP. That was in the early 1990's.

So at that time, we saw what was happening, we were being attacked and then as a community we started organising ourselves. We started organising ourselves, others amongst the community members objected, maybe go seek help from the police, but then we knew that the police wouldn't help, because they were in cahoots with the IFP supporters who were attacking us.

So at nights, at the time when we established ourselves, we only had about three handguns, so at night we used to patrol the area and call meetings where people were asked to participate in the defence either by contributing something or by patrolling at night. So now we have divided ourselves into groups who patrolled the area, so now, the structure, that is how the structure at the area was formed, because already the places, if maybe you might know Alexandra, the places from Roosevelt Street up to London Street, was already inhabited by IFP supporters who were mostly from the hostel, because people who lived there, were already chased out of their residences.

Now, I live at ...

JUDGE MOTATA: No, no before you proceed, just give us an indication, because Alexandra has got 22 avenues, and my recollection of Alexandra, the hostel is right up there somewhere at Fourth Avenue or Third Avenue?

MR NGWENYA: Yes.

JUDGE MOTATA: Now when you speak of the community and saying Selborne and Roosevelt, because those are two streets going down and the Avenues are running across, so we want an indication what would that be then, how do we now say that community?

MR NGWENYA: Okay, the community I am talking about, I live in Third Avenue with Khubheka, at the corner there, so the communities that organised themselves, the communities from the Second up until Fourth Avenues, between Roosevelt and Selborne, because now that was the block now that was being targeted because already the people who lived in the same area, same avenue, Second and Fourth, between Roosevelt and London, were already chased out of their residences because Johnny also lived in Second Avenue by then, he was chased out of his place. So he lived now, he was with us now in Third Avenue.

Those are the people that I am talking about, that is the community I am referring to, who organised themselves.

JUDGE MOTATA: You may proceed, Mr Mohlaba, thank you Mr Ngwenya.

JUDGE MOTATA: Thank you Chair. Having organised yourselves like you explained, what were you calling yourselves?

MR NGWENYA: We were the Self-Defence Unit, because we were defending the community, we were defending our families, our houses, our political beliefs, because that is the main reason why we were being chased, why we were being killed, because of our political beliefs.

We didn't want anything to do with IFP.

JUDGE MOTATA: Are you suggesting that the community, which you have referred to, that is between Second and Fourth Avenue and between the two streets, Selborne Street and Roosevelt, belonged to some political organisation, because you said you were defending yourself against your beliefs from these attackers, whom I take it from your evidence, you are speaking of the IFP.

MR NGWENYA: Yes.

JUDGE MOTATA: Now was this community of Second, Third and Fourth Avenue between Selborne and Roosevelt, belonging to which organisation?

MR NGWENYA: I would say they were members of the ANC and they were members of the Pan Africanist Congress, but then now, why I say we were defending our political beliefs, no one was for the political beliefs of the IFP, because we were all against what they were doing, we were all against their political beliefs per se.

CHAIRPERSON: Were you at all aware that it was not the policy of the ANC to attack civilians, who were not aligned to any particular party?

MR NGWENYA: Which civilians?

CHAIRPERSON: I am talking about the people who were living in the house in Illovo?

MR NGWENYA: That were robbed? We were also aware that as defence structures, we had to take initiatives, so now, with a 9mm and a .32, it was difficult, or it would have been impossible for us for example, to go and rob the police directly with those two guns, so they seemed an easy target, these people, because from what we heard, they had what we were looking for to defend the community.

CHAIRPERSON: Yes, when the SDU's were established, didn't the ANC assist in the establishment by having members of MK going into certain areas, specifically with the objective of arming those people?

MR NGWENYA: Yes, when the SDU's were formed, there was that thing that trained cadres must go and reside in the places that was mostly affected by the violence, so now, at the time, there was a time that we even consulted with the people from the ANC offices in the township, asking for cadres to come and live in our place, because at the time, we had no one. Even though they came at a later stage, by then, we couldn't wait for people which we did not know when are they going to come, whereas we saw that we were being killed.

So it was incumbent upon us to take initiatives.

JUDGE MOTATA: But wouldn't the communities which formed SDU's to protect themselves, collect monies to obtain firearms with those monies, because that was what was required by the community, and in this instance, why didn't you go to the community and say "we just have two and we need more, can't we collect money to acquire more weaponry to defend ourselves", yourselves rather?

MR NGWENYA: Yes, at the meetings that we held when we formed this structure, issues were raised as to contributions, issues were raised as to people participating in the defence. But then, nobody came up and contributed something at that stage, and we also saw, because it was difficult, the standard of living amongst the people, it was even difficult for some families to get in food to feed themselves. So it would have been very strange to expect them to contribute something for the guns as they cannot even buy food.

JUDGE MOTATA: Where did you acquire the two that you had before you saw the need to have more?

MR NGWENYA: The two guns that we had?

JUDGE MOTATA: yes?

MR NGWENYA: For an example, the .32, the .32, it was not the only two guns that we had at the time, because when we left, when we went to Illovo, there were also some few or about two handguns that were left to defend at the time, because it was dusk. There were some people who came and offered some handguns to us to defend.

For an example, the .32 I was carrying, it was brought to another guy who lived in the area, Sibusiso by then, because he couldn't participate actively in the defence, because he was working nightshift most of the time. He donated that gun for the benefit of the defence.

JUDGE MOTATA: Now why couldn't you approach the ANC, their offices and say "look, it is somewhat difficult for ourselves to defend the community without any form of weaponry that we would utilise" and seek assistance from the ANC offices?

MR NGWENYA: Yes, as I have indicated earlier on that they were contacted, where we asked the armed struggle was disbanded by that time, so we asked for the cadres to come and reside in our area, so that, because we knew that cadres, trained cadres have some form of weaponry that they can use to defend the community.

So now by then, if you didn't see anybody coming to reside in our area or you couldn't wait for people which we didn't know when are they going to come, because the need to defend ourselves was pressing, because we were constantly attacked. People were killed.

JUDGE MOTATA: No, no my question is that because now you had asked for some trained cadres to come and reside within your community that was under constant attack and seeing that nobody comes, why couldn't you say "can't you afford us weaponry"?

MR NGWENYA: These things happened, these things happened in a very short space of time, the ANC was contacted, even the SAP were also contacted, where we asked to come and maybe form a satellite police station between the two areas, but then they said they did not have enough manpower. The ANC, the people in the offices knew exactly, they knew our position at the time, they knew the predicament that we were in.

I would have been stupid of us, for an example, if we waited for them to, because we have already asked for help from them, to wait for that help, which did not come, for that particular time, after that time that we asked for help. So, that is why we felt that we have to act to get the weaponry.

JUDGE MOTATA: Was this discussed amongst the community that you had to get firearms for you to be able to defend yourselves. Was this discussed with the community you were protecting?

MR NGWENYA: Not in the sense that, for an example, we used to hold meetings at a church there, where everybody would come, but then we never said we were going to rob some, this place, in such a meeting, because we never undermined the Security Forces, because they might have informers amongst us there, so there were people who knew about this thing amongst the community by then. Not everybody knew about it, because we never trusted everybody.

JUDGE MOTATA: What do you mean you discussed it in a church there, firstly, where is the church situated?

MR NGWENYA: It is in Third Avenue, the Lutheran church. It is in Third Avenue, that is where we held meetings as the community.

JUDGE MOTATA: And where did the other members of the community get the idea or the information that you people were going to rob and obtain arms?

MR NGWENYA: Those that knew about this thing, because when we planned, when we planned this thing, there were some people who were present by then, who did not go with us there, and then when we came back with what we acquired at the robbery and the murder scene, they also saw, they also saw the guns and the ammunition, and we told them that we have robbed these things.

JUDGE MOTATA: No, but you had left your R5 behind, what did you have to show, because you had left your R5 behind?

MR NGWENYA: I left it at that time, because I couldn't board, I couldn't ride on a taxi with an R5. But then, I said, I left it at the time, but we fetched it later, the following day because I hid it somewhere in the flowers.

JUDGE MOTATA: What position did you hold in the SDU's?

MR NGWENYA: Well, there was no, we never formed ourselves for example, in a manner that there was a Chairman, there was a Secretary, something like that. But then, there were people that we knew, that were active, people for example, those would co-ordinate people to come to meetings, those that would check that others were patrolling their areas. There was no person who had a position that meant this person is a Chairman of the structure, this person is the Secretary of the structure. It never happened like that.

JUDGE MOTATA: Now, am I hearing you to say then that the five of you were the people who spoke and decided that you should go and rob this house out at Illovo?

MR NGWENYA: It was not only the five of us. It was not only the five of us. Some other people were present when we talked about this thing, but then they were not there when we went out to the area, because for example Mr Maponyane didn't live in Third Avenue, he lived in 14th Avenue. It is just that in 97 he had relatives, he used to frequent the area.

So now, he told his cousin that used to visit there, about this thing and then his cousin came and told us now that there is someone who says that there is a place where we can get guns, that we can use to defend ourselves.

JUDGE MOTATA: So am I hearing you to say again that the five of you assumed responsibility that because there were no cadres forthcoming or the ANC responding positively, you five took it upon yourself that you would acquire arms to defend your community against the IFP?

MR NGWENYA: Yes, we took that initiative.

JUDGE MOTATA: You may proceed Mr Mohlaba, I am sorry for taking so long.

MR MOHLABA: Thank you. How soon after the incident, were you arrested?

MR NGWENYA: Well, the incident happened in 1991, I was arrested in 1993, although the police, we heard that sometimes they would come there, looking for us, but it was difficult, because it was in a war zone, so it was not easy, people would not give information to the police at that time.

Ultimately we were arrested in 1993.

MR MOHLABA: Do you know whether at a later stage, your request to have MK cadres reside with you in the area or come and assist you in that area, was ever honoured?

MR NGWENYA: Yes, it was, it was. There were people who did come there, some cadres, trained cadres who did come there. They also had some extra guns, who came and resided in the area.

Not necessarily reside, in fact that they were giving some places to stay there, but then they were in the area. They would, for an example, they would sleep in a certain house for today, tomorrow they would be sleeping in a certain place. Those are the people like Skalo, those are the people now who polished our defence, I would call it like that, who polished us now, telling us what positions that, what, for example where should we stay for example. The other group should stay at this point, the other at that point, and then the range of the gun, what gun was effective at what distance, things like that.

MR MOHLABA: Are you saying that once they came in, they acknowledged your existence and you inter-acted with them?

MR NGWENYA: Yes, they acknowledged it. They acknowledged it.

MR MOHLABA: That will be the evidence-in-chief, Chairperson.

JUDGE MOTATA: Now, who were polished, is it the five of you, because we haven't heard of something further than the five of you? Who did the cadres polish when they came and lived amongst you people there?

MR NGWENYA: The defence structure, the SDU.

JUDGE MOTATA: What, how many were there for instance, I just want an estimation?

MR NGWENYA: Yes, well, I would say people, because when I talk about the SDU, I include all those who were actually involved in patrolling the area at night, things like those, I would say we were about 30 or so.

Others were also arrested for some other incidents, not this one, but involving defence, they were also arrested.

JUDGE MOTATA: Where were you people living, because you say, or I heard you, correct me if I am mistaken, that people had to leave their houses there?

MR NGWENYA: Yes.

JUDGE MOTATA: Where were you people living?

MR NGWENYA: For an example, women and children, we moved them out. If you know 97, and 98, 97 and 98, that is from Second up to Fourth Avenue, that is at the front, women and small children were moved to the back houses, so now the men only were in the defence, resided in that area, because we didn't want them to see that there was now an area that was vacant, because what they did when they saw a vacant house, the IFP, they would come and inhabit that place.

JUDGE MOTATA: What are you referring to when you say 97, 98, I cannot follow?

MR NGWENYA: That is the yards, 97, that is the address, the yards at the front, in front of Roosevelt Street. Those are the yards, when the IFP would start shooting, they would shoot there first.

JUDGE MOTATA: Thank you Chairperson.

CHAIRPERSON: Mr Mapoma, have you got any questions that you would like to put to the applicant?

CROSS-EXAMINATION BY MR MAPOMA: Yes Chairperson. Mr Ngwenya, I understand you were not a member of the ANC? Am I correct?

MR NGWENYA: Yes, I was a supporter.

MR MAPOMA: And you were not a member of the ANC Youth League?

MR NGWENYA: No, I was a member of NAYO.

MR MAPOMA: And there was an ANC structure in your locality?

MR NGWENYA: Yes, there was.

MR MAPOMA: And the Youth Structure of the ANC as well?

MR NGWENYA: Yes, I believe so.

MR MAPOMA: Why did you not join those organisations?

MR NGWENYA: Well, you see, from the experience that I had, in KwaZulu Natal where I grew up, it was difficult for example to have membership cards for NAYO or UDF or something like that, because that made you a target to the IFP or the Security Forces. I never saw or I never thought that it was important or I needed a membership card for example, to support the ANC.

Cards, membership cards, they wouldn't change anything with the ANC, my membership card. That did not mean for example if I had a membership card, that would count in the number of ANC membership, and maybe give it a seat in Parliament or something. I did not see any significance at that point, of having specifically a membership card.

MR MAPOMA: Is it not correct that after the ANC was unbanned, the leaders of the ANC throughout the country were preaching for people to join the ANC and build the ANC by joining it, was that not the case?

MR NGWENYA: Yes, as I have tried to explain, at the time, I did not see the significance of getting a membership card to, for example, support ANC, you see. I can support the ANC without having a card.

But then, if for example, ANC membership was needed to give the ANC a seat in Parliament or something that was important, maybe that was when I would have acquired a membership card.

MR MAPOMA: Now do I understand you to say what the ANC leaders were preaching, you didn't find it significant, yet you claim to have been a supporter of the ANC?

MR NGWENYA: Well, Mr, I would say, I wouldn't say for example what they said was not important. There were things that I heard, I used to attend meetings or rallies when they were called, but then, as I am saying, at that time, I knew that there were negotiations that were going on, after the release of Madiba, and then, about the elections. That was a thing that was important to me, at the time. No matter what, that thing should materialise, the elections should be held. That is what I saw as important, rather than having a membership card at the time.

JUDGE MOTATA: Mr Mapoma, if I may come in again, I am sorry about this. This incident happened in 1991, October, thereabout?

MR NGWENYA: Yes.

JUDGE MOTATA: And Mr Mandela was released in February 1990?

MR NGWENYA: Yes.

JUDGE MOTATA: When you say you did not see the importance that you should be a card-carrying member, that would probably send somebody to Parliament, what was going on in your mind, why was Mandela released and why were these negotiations?

MR NGWENYA: Well, the negotiations were about people voting, not about members, card-carrying members voting, but about people voting. so, I knew that you did not need a membership card to vote per se. But you only need to have an organisation that you support, to vote.

JUDGE MOTATA: You did not see the need for instance, because you were now coming from NAYO which was an off-shoot of the UDF, which overtly was saying "we want to go to Parliament" and you did not see that there should be a need for card carrying people, that you should be identified with the party which you support, or the organisation?

MR NGWENYA: What I can tell you about, I did not see the importance of that, because my experience with people, with card-carrying members of political organisations, which were enemies of the State at that time, was that they never lived peacefully, they were constantly attacked by IFP or even the Security Forces, because ...

JUDGE MOTATA: Now, but we've got a change of scenario now. We are having the ANC, the PAC, name it, all unbanned, now they are lawful organisations?

MR NGWENYA: Yes. Yes, I did not see the importance at the time, that I should specifically have a membership card.

JUDGE MOTATA: Thank you. You may proceed, Mr Mapoma.

MR MAPOMA: Thank you sir. Are you aware at all that the Self-Defence Units were falling under the political control of the ANC?

MR NGWENYA: Yes, I am. The ANC is for the people, it is not for its members, it was the organisation for the people, it is not only for ANC card carrying members. Because ANC is today in power, not because of its members, but because of the people who supported it during the votes.

MR MAPOMA: In your area, you say there was no command structure, so to speak?

MR NGWENYA: When this thing was formed?

MR MAPOMA: In your group?

MR NGWENYA: When the structure was formed, there was no command, there was no person who had a portfolio or a position that you could say "this is a Commander", but there were people who were at the forefront, not necessarily that they had positions, they did not have positions, but they were people who were respected, people who were grown-up's at the front.

MR MAPOMA: Even at the time when you went to attack, you were not under any command structure?

MR NGWENYA: No, no, we were not under, nobody commanded us to go there, we took an initiative.

MR MAPOMA: As this SDU of yours, were you reporting to the ANC at all?

MR NGWENYA: There were some people, people were involved who were ANC members, the ANC, some ANC members that we have consulted before, they would come to the area where we were to see how things were going. Other people that were involved in the defence structure, they were, they had some positions there at Sangwane, at the ANC offices.

We never saw that we should every day for an example go down and specifically report that "we patrolled efficiently last night", or something like that, but they knew what was happening there. That is what I can say. They knew what was happening at that avenue.

MR MAPOMA: Do you know who was the ANC Chairperson of the branch of the area?

MR NGWENYA: Well, the Chairperson, I cannot specifically at the time, the time now, because at one point, Mr Hiddey was a Chairperson, but then I cannot recall the period that he was the Chairperson. Also Oubet Maphela was also a Chairperson, but then I cannot recall the exact time when he was, when they were Chairperson of the ANC in the area.

MR MAPOMA: Who are those ANC persons you say at some point, you consulted?

MR NGWENYA: We consulted Freddie Khumalo, Brabhiza, we consulted Brabhedi, I don't know his surname. We consulted Boihzi, we consulted Samora, amongst the few that I recall the names.

MR MAPOMA: Were they resident at your area, those persons whom you have just mentioned?

MR NGWENYA: The person that resided in our area was Samora, yes, it was Samora. The others were not resident in our area. They were down, like Mr Khumalo, Mr Brabhedi was in Fifth Avenue, Mr Khumalo Brabhiza was in Eleventh Avenue.

MR MAPOMA: This Samora, did he occupy any leadership position of the ANC in your area?

MR NGWENYA: In our area?

MR MAPOMA: Yes?

MR NGWENYA: Yes, earlier on, in about 1986 or so, there were the Street Committees, there were the Street Committees, so he was part of that, even though they were no longer effective at the time. So, but then he had positions from that time on. There were also some other people who had some sort of positions, like those of the Street Committees.

MR MAPOMA: Mr Ngwenya, I am asking these questions because it seems from your evidence that you were a group of persons who were not accountable to the ANC, yet you claimed that you were SDU's? I am asking this question because the ANC made submissions where it has accepted that the SDU's were falling under their political control and yours, funnily enough, does not seem to have been a structure which was accountable to the ANC?

MR NGWENYA: No, maybe for example, in my submissions, I mention the names of people. I don't know whether the investigations maybe consulted those people and maybe tried to find out about us, because indeed we were there, indeed, we did defend the people, indeed we were part of the people who formed the structure, the Self-Defence Unit.

Nobody in Alexandra can say he was part of the defence structure and say that he does not know us. Nobody can say that, if he is telling the truth.

MR MAPOMA: But it is incumbent upon you to show this Committee that you were members of the SDU, it is you who are supposed to come with somebody to say that these were our members, as SDU's, and not somebody else.

MR NGWENYA: Yes, maybe you might see that I am a prisoner, I am in prison, and that is why I included names. Maybe if I knew that I should come with people, maybe I would have tried some means, even though it is very difficult to go outside, it is impossible in fact, to go outside, if you are a prisoner.

I would have tried maybe to phone, even though I am allowed one phone call a month in prison, I would have tried to contact those people and say "please come", I never knew that, because I thought that as I have included them in my further submissions, maybe the Investigating Unit will go down there and try to consult, if that is that important to them.

MR MAPOMA: One other thing that is funny with your SDU and I want your comment on this, is that it had no command structure, it had no one from the MK who was assuming any control in it? You were just loose?

MR NGWENYA: I said initially, initially the community members ...

MR MAPOMA: No, no, let us not talk initially, I want, I want us to address about a stage when you went to attack.

MR NGWENYA: Yes, when we?

MR MAPOMA: When you went to attack?

MR NGWENYA: Oh, when we went to attack, okay, when we went to do the acts that we are applying amnesty for? At that time, yes, at that time, there was no MK cadre who was with us. At that time, there was none, and I doubt if maybe somebody can say, we should have sat and waited for people to kill us, and waited for people to burn down houses, whereas we know what was happening, whereas we could take initiative to defend the people.

MR MAPOMA: You know, once again, I need your comment on this. The SDU's generally, in a particular area, we would find a structure which had a Commander and that Commander would fall under the Area Commander and there was a hierarchy?

MR NGWENYA: Yes.

MR MAPOMA: Yours does not seem to be having any Commander and you seem not to have been falling to any command structure altogether?

MR NGWENYA: No. I said after, when, at the time when we received now, when some cadres came in now, they became, they commanded us now, and showed us some other things that we were not aware of, but when we formed this thing as communities, we were just concerned communities, who were being attacked by the hostel dwellers at the time.

MR MAPOMA: Did you undergo any military training?

MR NGWENYA: No, there was no military training that I underwent.

MR MAPOMA: As SDU's, is there any training whatsoever that you were given?

MR NGWENYA: Our SDU's?

MR MAPOMA: Yes?

MR NGWENYA: The training was maybe about, we never had a shooting range. The training, that was about how to cock a gun, how to shoot, how to load, how to reload it. That was the training.

CHAIRPERSON: Just, so you go and you steal some guns and you steal some ammunition. What will you do when that ammunition is used up?

MR NGWENYA: When we no longer have it now?

CHAIRPERSON: Yes?

MR NGWENYA: Yes ...

CHAIRPERSON: What is the point in having a gun or committing a robbery of this nature, to have a gun that you won't be able to get ammunition for once you have used up the bullets that you have got?

MR NGWENYA: Ammunition was just, it is just that we never had, personally we never had it, but it is sold there outside, people are selling it.

So when we ran out of ammunition, you could buy it. That is what in fact happened, when we ran out of ammunition.

MR MAPOMA: Who trained you?

MR NGWENYA: In terms of ...?

MR MAPOMA: Yes?

MR NGWENYA: Cocking the gun? It was Silo, it was Samora was also part of that, it was Dada Kaswe, those were the people who showed some of the SDU members how to do those things, before Skalo came in. Skalo, that is the MK cadre who came to the scene later on.

JUDGE MOTATA: Did they train you, if I may just come in here Mr Mapoma. Did they train you before you committed this robbery, the people you have mentioned?

MR NGWENYA: We had guns, yes, before we went to the robbery, we had some few handguns. So as we were guarding the place at night, so one Unit was given one gun, so people were taught how to use the gun when we were defending at night.

The training happened before we went there, and then after we went there, it was now Skalo now, who came with the big guns.

JUDGE MOTATA: Were all five of you who assumed responsibility, trained?

MR NGWENYA: Except Maponyane.

JUDGE MOTATA: Thank you, you may continue, Mr Mapoma.

MR MAPOMA: Thank you sir. Now, in the place where you robbed, what is it that you robbed actually?

MR NGWENYA: We robbed, we got these two guns and ammunition, but then unfortunately the other gun was left behind, the .44, so when we arrived in Alexandra, after that incident of the robbery, we came together, we found the other guys, because I came there, I was the fourth guy to come in Alexandra, Maponyane was the last. When we came there, we sat down and obviously because of how the robbery ended up, and also the shooting out with the police at Corlett Drive, we obviously had to brief one another as to what exactly transpired, what exactly led to the police or the security guards coming to the area.

We found out that we got only 38 ammunition and also we found that there was some jewellery also, from Elvis.

MR MAPOMA: So you robbed jewellery as well?

MR NGWENYA: Jewellery, I did not, personally I did not see that incident because I only became aware of the jewellery when I was in the location, when Elvis now was asking Johnny when we were putting together what we got from the scene, when he asked him "where is the jewellery". It was not, it was a watch or two and some rings and a pearl necklace.

CHAIRPERSON: It says in the judgement that the home was broken in and they mention, just bear with me -

MR NGWENYA: Well, I wouldn't say that we terrorised them per se.

CHAIRPERSON: Somebody took their watches and jewellery?

MR NGWENYA: That is why I am trying to say that I only became aware of the jewellery when I was in Alexandra, because that was not in the plan.

Most of the time, at the house there, I was up there with Mrs le Krish, at the safes.

CHAIRPERSON: Mr Mapoma? Do you want to break for tea or do we finish the witness?

MR MAPOMA: Yes, I propose when I finish Chairperson. Who was left outside when you were with Mrs le Krish inside?

MR NGWENYA: No, it was not outside, it was in the lounge.

MR MAPOMA: Yes.

MR NGWENYA: I and Maponyane went with Mrs le Krish up, and then Muzi Khubheka, Elvis and Johnny, they were left down there with the people who were laying on the floor.

MR MAPOMA: Did you demand some cash from the persons whom you robbed?

MR NGWENYA: I demanded guns, because we knew that there were guns in that place.

CHAIRPERSON: The question was did you demand cash?

MR NGWENYA: No, I did not demand cash.

ADV SANDI: Sorry Mr Mapoma, did anyone of your colleagues, demand cash?

MR NGWENYA: When we came there, when we came there, it was I who told them that "this is a robbery, we want guns". I don't know, I cannot talk about the time when I was not there, when the jewellery was taken. I cannot say about that time, but it was me who talked to the le Krishs, so I never asked for money, but I asked for guns.

JUDGE MOTATA: Had you planned this that "when we get there, I will be the spokesperson and tell them that this is what we want and nobody does anything other than I being the spokesperson"?

MR NGWENYA: No, it was not like that, that "you are going to talk, we are not going to talk", it just happened, when I came in, I was the first to come in and then, when I saw them panicking, then I told them "if you panic, you might get hurt, we just want guns", so that is how it happened.

JUDGE MOTATA: Did you go to this house in October 1991 for the first time?

MR NGWENYA: Yes, it was for the first time.

JUDGE MOTATA: You were merely told that there were guns there and you just went there?

MR NGWENYA: We were told that there were guns there, also for the fact that Maponyane's mother, we also gathered that she worked in the area, so possibly, possibly, there was the possibility that there were guns in that area, because from the explanation that we got, it seemed possible that there could be guns in the area.

JUDGE MOTATA: No, let's speak about the le Krishs.

MR NGWENYA: Yes, I am talking about the le Krishs.

JUDGE MOTATA: You know, you give me the impression that you were not certain that there were guns, because you someone said, mentioned that because one of the relatives of your colleagues was working in the area and there could possibly be guns?

MR NGWENYA: No, no, the issue of the guns is not that because one works in the area. The area, Jacob, he lived in 14, when we heard this thing, it was that, we heard that once, they once broke into the place and then they found ammunition for pump action and they found carry bags or carry cases for the rifles in the area, and there were these big gun safes.

That gave us assurance or an indication that indeed, guns can be available in that place.

CHAIRPERSON: Did Mrs le Krish have a baby with her?

MR NGWENYA: Yes, she did have a baby.

CHAIRPERSON: Because it says here in the record that she had a baby, but nevertheless took off her gold necklace, string of pearls, earrings, watch, wedding ring and a wedding heirloom?

MR NGWENYA: Not when I was with her. What happened, when we came in there, I first went with Mr le Krish before I went with Mrs le Krish and then Mr le Krish did not, could not find the safes and then we came back and then he asked now Mrs le Krish to go and look for the keys. I took Mrs le Krish, who then went to the maid's room and asked for the maid "where are the keys", and then now, we came back now with the maid again, who came and lay down there. That is now when I went with Mrs le Krish up, so at the time when she had the child, there was no time she took out necklaces.

JUDGE MOTATA: Could you see those necklaces, earrings, wedding ring on her while she was in your company, when you went upstairs?

MR NGWENYA: Well, I did not notice exactly what she was wearing.

JUDGE MOTATA: When you were at first with Mr le Krish, how long were you with him before ...

MR NGWENYA: With Mr le Krish? It was a period of not more than five minutes, but then it was not very short, because he looked somewhere for the keys, but couldn't find the keys, so we had to come back because we were not now in the this room, in the lounge where they were initially, where we found them, when we looked for the keys.

We went into the kitchen, we went into another room, but he couldn't find the keys, and he came back.

JUDGE MOTATA: You may proceed, Mr Mapoma.

MR MAPOMA: Thank you. Why Mr Ngwenya, did you not mention in your evidence-in-chief that you robbed jewellery as well?

MR NGWENYA: The evidence that I said when, before you took the stand?

MR MAPOMA: Yes? No, the evidence when you were led by your legal representative, why did you not volunteer the information that you robbed jewellery as well?

MR NGWENYA: No, well, not that maybe I was trying to run away from that thing, no, maybe it is something that, there are a lot of things that maybe I haven't said as of now. Maybe it was just one of those things that I did not say.

For example, I could not talk more about the jewellery, because I only became aware of the jewellery when I was in the township. I talked mostly about what happened at the scene.

CHAIRPERSON: This is also just again for your comment, sorry Mr Mapoma, from the judgement, I am looking at page 48. She says - her baby started to cry, this is from the judgement -

MR NGWENYA: There was no camera that I ever saw, there was no video that I ever saw. Even during the trial, we never saw those things.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Thank you Chairperson, no further questions.

CHAIRPERSON: Do you have any re-examination Mr Mohlaba?

MR MOHLABA: None, Chairperson, thank you.

CHAIRPERSON: Judge Motata, do you have any questions that you would like to put?

JUDGE MOTATA: Just a few clarifications. When did you come to Johannesburg, because you grew up, you were born in Newcastle and at some stage you belonged to NAYO there?

MR NGWENYA: I finished my matriculation in 1987 and then in 1988, because I came there after there was this tension now, it was very strong now, this tension, after UWUSA was formed now, there was tension now, so houses were being burnt, and then I came, I have my mother's relatives here in Soweto. That was in 1988, late 1988.

JUDGE MOTATA: Did you come to Alexandra or Soweto?

MR NGWENYA: I, no, I came to Alexandra, I used to visit my grandmother in Soweto. I came to Alexandra.

JUDGE MOTATA: Did you work

MR NGWENYA: No, at the time I was unemployed.

JUDGE MOTATA: Even up to the time of this incident at Illovo?

MR NGWENYA: Yes, I was not permanently employed, there was no time that I was formally employed, so to say.

JUDGE MOTATA: You said that you used to visit the offices of the ANC in Alexandra and you saw people like Samora, Freddie Khumalo, Brabhiza, as what did you approach them? You said "here we are, we are under attack", but who are you from probably Third Avenue, Second Avenue to Fourth Avenue?

MR NGWENYA: I never went there as an individual, we went there with some members of the structure. I never went there as an individual.

JUDGE MOTATA: No, when you started, listen, when you started you said that there was no formalised structure, you were just SDU's, there were about 30 of you patrolling. I say you, there are certain individuals, go to the offices of the ANC and say to the ANC, what do you say to the ANC, who are we and sent by who?

MR NGWENYA: We are the, when we talked to these people, we were about five, we were five when we went to the offices, and we told them that "we were people from Third Avenue, we seek your intervention in terms of defending us there at the top in Third Avenue because we are being killed, we are being attacked by Inkatha, so if maybe you can provide us with cadres who may come and reside in our area".

JUDGE MOTATA: Are you saying that the ANC, because it had an office in Alexandra, were unaware of this attack by Inkatha on the community in Alexandra?

MR NGWENYA: They were aware that there was violence in Alexandra, but nothing was done, yes, was done at that time. They were aware that there was violence, but nothing, they had done nothing at the time when we went there.

JUDGE MOTATA: Because now you had made them aware or rather, let me start with this one, when you say you were about five, are you saying that the others were your co-applicants in that delegation?

MR NGWENYA: No. No.

JUDGE MOTATA: They never went?

MR NGWENYA: No, no, out of this three gentlemen I am with, no, it was only me amongst the people who went to the offices.

JUDGE MOTATA: How many times did you visit the offices of the ANC, seeking this assistance?

MR NGWENYA: Personally when I was present, it was once but then people, there were some older people there, who were responsible for most of the things, although, not that they had positions per se, but they used to go down there.

JUDGE MOTATA: And the ANC never said to you "people to ward off this attack, we think you should formalise yourself", they never made such a suggestion?

MR NGWENYA: No, they, because I doubt, when we talked to them, they were never of the opinion that we were illegitimate. They never mentioned something to that effect, that maybe we were not, they did not recognise us. No.

JUDGE MOTATA: Then when you said to them, probably if you could send some of the cadres, who would they contact, because there is no formalised structure between Second and Fourth Avenue and between Selborne and Roosevelt Streets, who would they contact if they were to send people to come and assist the community there to ward off the attack?

MR NGWENYA: The people that we went with there, they were known to them, the people that I went with there, to the offices, they were known to the people that we found there. They knew exactly where to find us, because they knew that we were from Third Avenue. They knew the people, where they lived in Third Avenue.

JUDGE MOTATA: You told them "look, we are now the SDU's in the area" or you just sought help?

MR NGWENYA: No, we told them that we have tried to organise ourselves, but the problem is that we don't have guns that could match the guns that we could hear when the IFP is shooting at us, so we need people with big guns to come and reside in the area.

Because at that moment, we only had some pistols and revolvers.

JUDGE MOTATA: These people who trained you in the shooting before this incident, what were they training you as, because there was no help forthcoming from the ANC?

MR NGWENYA: When we were trained firstly before we went to commit the robbery?

JUDGE MOTATA: Yes.

MR NGWENYA: They trained us, because now our structure, we have divided ourselves into different groups, and then each group, when it was supposed to patrol, at least they must have, the group must have a firearm. So now people, someone was in possession of that firearm, within that structure, within that unit, must have knowledge of how to use the firearm. It was on those basis now that we were trained to be able to use the guns that we had.

JUDGE MOTATA: Trained by who?

MR NGWENYA: It was Samora was part of that, Silo was part of that, Dada Kaswe was part of that.

JUDGE MOTATA: Yes, but I asked you earlier and you said there was no help forthcoming from the ANC and if I ...

MR NGWENYA: At that time, yes, it came later on.

JUDGE MOTATA: You see, you must listen because it would be easy, because I am not trying to catch you out, I want explanations from you and please view them in that light.

I want explanations, because some things, when you said them, did not make sense to me. I asked you first that you never got assistance for instance, from the ANC, that they should assist this community of Second to Fourth Avenue residents, you said no, they did not send people, did I hear you correctly?

MR NGWENYA: At that time, after we went there, yes, they did not send people. I also said that at some time later on, there were people who came now, and then now, taught us now how to use big guns, at that time.

JUDGE MOTATA: Yes, that was quite later, after, we are here concerned with events that led up to October 1991, when you people went out to go and seek weaponry to defend yourselves?

MR NGWENYA: Yes.

JUDGE MOTATA: And I would say "let's confine ourselves to that time" and not what happened subsequently, because the decision we've got to make is what led to that incident and up to that incident, we cannot take anything into account later. Are you with me there?

MR NGWENYA: Yes, I am with you.

JUDGE MOTATA: My understanding was that Samora for instance, was one of the people who occupied some position within the ANC?

MR NGWENYA: Yes.

JUDGE MOTATA: The thing that led you people to go and rob, you wanted to arm yourselves, to have something that you could defend yourselves with, because there was nothing forthcoming from the ANC?

MR NGWENYA: Yes.

JUDGE MOTATA: So far we are agreed?

MR NGWENYA: Yes.

JUDGE MOTATA: Now I say, you say the ANC wouldn't do anything, I say now, if people like Samora trained you, they trained you as what, because you people were somewhat despondent that you had to, because you were the people who were attacked and you had to do something. When Samora trained you in these handguns, he trained you as what? That is my question?

MR NGWENYA: As members of the SDU.

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

CHAIRPERSON: Mr Sandi, do you have any questions?

ADV SANDI: I've got no questions, thank you Mr Chairperson.

CHAIRPERSON: Just on this one point, in your statements that we have before us, you have given an explanation but you say that you weren't involved in the murder of the policeman, Sgt Oosthuizen, or the attempted murder of his colleague, in these papers, right, you deny it, even in the papers that were submitted to the Truth and Reconciliation Commission? Right?

MR NGWENYA: Yes, these papers, these papers, yes.

CHAIRPERSON: Now why did you lie in those papers?

MR NGWENYA: It was not necessarily that I lied.

CHAIRPERSON: Well, I mean you said you weren't involved in the killing of the policeman?

MR NGWENYA: Yes.

CHAIRPERSON: Do you want me to read it to you and you say it is not a lie?

MR NGWENYA: No, I am explaining in the sense that how, the knowledge I had about the TRC when I filled in the forms.

CHAIRPERSON: Yes, but - so that made you lie?

MR NGWENYA: No, that made me fill in the forms the way that I did, because when I filled in the forms, I was of the opinion that the TRC, if you have already gone through the courts, you have to use the evidence that is on the court records.

So now, according to evidence that was on the court records, evidence in court about the robbery case, was ample evidence against us. So now, but on this robbery incident, there was no evidence except the pointing outs and the confessions that were made and then we were forced to make those statements. It was that evidence only which we contested also in court, its admissibility.

When I filled in the forms, I was of the opinion that, I equated the TRC at the time to somehow, to some extent, with an appeal court, if I may call it like that.

CHAIRPERSON: Thank you. Do you have any questions arising, Mr Mohlaba?

MR MOHLABA: None Chairperson.

CHAIRPERSON: Mr Mapoma?

FURTHER CROSS-EXAMINATION BY MR MAPOMA: Just one Chairperson. You spoke of a confession, are you one of the persons who made a confession?

MR NGWENYA: Yes.

MR MAPOMA: In that confession, did you mention that you were the SDU members?

MR NGWENYA: No, I did not. In fact, that is why I also were beaten to, I was beaten to make that confession. I did not see the reason why I should give the Courts a stance to sentence me, because obviously they were going to sentence me, the way that I saw things happen.

MR MAPOMA: Thank you, thank you Chairperson.

ADV SANDI: Sorry Chair, I said I have no questions, I do in fact have a question, I had forgotten to ask it.

Why did you not ask your pro deo counsel to tell the Court in mitigation that you did all this because you wanted arms so that you could defend yourselves and the community?

MR NGWENYA: Well, that would have amounted to admitting the crime now, so we did, I did not see a reason because now I knew, I knew the regime that was responsible for this, was also the regime that was in the courts. So now, I did not see at the time, the reason of admitting it and giving them a leeway to sentence me.

ADV SANDI: But at that stage, you had already been found guilty, what difference would it have made?

MR NGWENYA: Well, I, maybe I did not think about that at the time, because I did not even see the significance of it, turning around again whilst during the trial, I denied everything and then now, in mitigation now, I come back and agree that no, it was for the defence.

ADV SANDI: Your pro deo counsel did he know that you were members of SDU's, did he tell you that?

MR NGWENYA: That we were members of the SDU's? Well, I told her, because I had a, we all had different defences, I told her, she knew that there was violence in our area, as much as also the police knew that there was violence in the area.

I also told her that I was part, we were part of the defence structure, which led, when she asked me why, what took the police so long to arrest me, then I tried to explain to her that the area that I lived in, was a war zone, so it was not easy for the police to come in at any time. They knew that we were there, but it was not easy for them to come in there. That is when I, that is how, the context that I explained to her about my involvement in the SDU.

JUDGE MOTATA: Just that, were you found guilty of murder?

MR NGWENYA: Yes, I was found guilty of murder.

JUDGE MOTATA: Attempted murder?

MR NGWENYA: Yes, attempted murder also.

JUDGE MOTATA: Thank you.

CHAIRPERSON: Yes, thank you Mr Ngwenya. That concludes your testimony.

CHAIRPERSON: Mr Mohlaba?

MR MOHLABA: Chairperson, I would want to lead the other applicant, the second applicant but I would request a short adjournment.

CHAIRPERSON: Yes, I think we will have a short adjournment, not necessarily the tea time, I see it is almost lunch time now, but we will take a short adjournment, just for Mr Mohlaba to get ready and then if you can let us know as soon as you are ready, we will resume.

--------------------------------------------------------------------------ON RESUMPTION

CHAIRPERSON: Mr Mohlaba?

MR MOHLABA: Thank you Chairperson. I will now be leading the third applicant, Mr Khubheka, and he elects to give his testimony in Zulu.

MUZI PATRICK KHUBHEKA: (sworn states)

CHAIRPERSON: Thank you. Mr Mohlaba?

EXAMINATION BY MR MOHLABA: Thank you Chairperson. Mr Khubheka, you are presently serving a prison term, and you are the applicant in this matter, is that correct?

MR KHUBHEKA: That is correct.

MR MOHLABA: You are, you have all along been in the same prison with your co-applicants, is that correct?

MR KHUBHEKA: That is correct.

MR MOHLABA: You are applying for amnesty in respect of an offence of murder, attempted murder and robbery with aggravating circumstances, is that so?

MR KHUBHEKA: That is correct.

MR MOHLABA: You heard the testimony of the first applicant, Mr Ngwenya? And do you confirm what he said in so far as it relates to you?

MR KHUBHEKA: Yes, I confirm.

MR MOHLABA: At the time of the commission of this offence, in respect of which you are applying for amnesty, were you a member or supporter of any political organisation?

MR KHUBHEKA: Yes, I was a follower of the ANC.

MR MOHLABA: Mr Ngwenya has indicated that he was in your company when a robbery was committed at Illovo as well as in a shoot-out where a police officer was killed and another injured, do you confirm that?

MR KHUBHEKA: Yes, I confirm that.

MR MOHLABA: I want you to take us through the robbery and I want you to explain specifically the role played by yourself at that house where the robbery was committed, that is no 4 Otto Street, Illovo.

MR KHUBHEKA: Should I start from there, no 4 Otto Street, Illovo?

MR MOHLABA: Yes, we already heard that you were present and the background of how the entire robbery was committed, was sketched out to the Committee.

I want you to explain to the Committee the role played by yourself in so far as it relates to that robbery.

MR KHUBHEKA: I was in possession of a 9mm short, it was myself as well as Mfanafuthi, Mr Ngwenya, the two of us had firearms. When we got there, the door was open and the people were sitting around the table. That is when we pointed the firearms at them and told them the reason for our visit, we indicated to them that we wanted firearms to protect the community.

They told us, or should I say, Mfanafuthi took Mr le Krish along, they went about looking for keys to the safe. I remained downstairs myself, in the company of Johnny and Elvis. Mfanafuthi as well as Jacob Maponyane had gone upstairs.

We remained behind. I am the one who was in possession of the firearm. We made them lay down on their stomachs and Mfanafuthi and Mr le Krish then came down and Mrs le Krish was taken along to go and look for the housekeeper who was thought to be in possession of the keys or knew where the keys were. They came back, in possession of two firearms, a .38 and a .44. One of us was given this .44 by Jacob Maponyane and Jacob Maponyane then went up to the upper room and I heard some noise from the back yard.

I told them to wait there, whilst I went out to investigate and as I was just closer to the door, I heard a gunshot. The gunshot had been fired from whence I came and as a result of that, I could not go back to the house to see what was happening.

I jumped a precast wall and fled into the golf course. That is how I fled.

MR MOHLABA: The position of the occupants of the house, can you explain, were they sitting, laying down, just explain, during the moment when Ngwenya and Maponyane were demanding firearms?

MR KHUBHEKA: We had made them lay down on their stomachs. Only one went up to look for the firearms.

MR MOHLABA: We have noticed from the court record, that some of the victims were streaked of their jewellery, can you comment on that?

MR KHUBHEKA: That is true, some of the family members were robbed of their jewellery. I don't know whether they were wearing it or whether they had it in their pockets, but yes, these were taken off them, because when we met the following day, the jewellery was produced by Johnny, that is when we met the following day, myself, Johnny and Elvis.

CHAIRPERSON: Sorry, are you saying Mr Khubheka, that during the time of the robbery, you were unaware that jewellery was taken, you only learnt that later, is that what you are saying, or what are you saying?

MR KHUBHEKA: Yes, that is correct because it was not within our plan to rob this family of their jewellery, we only went there solely for the firearms. Maybe at the time when I had gone out, that is when the robbery of the jewellery took place. I cannot comment on that.

MR MOHLABA: I have noticed that in your application forms, you also denied , that is in your statements in support of your application forms, you deny any involvement in the murder and the attempted murder. Do you still stand by those statements?

MR KHUBHEKA: I am involved in the murder as well as the robbery, therefore I am not sticking to the previous statement.

MR MOHLABA: Can you explain why you initially denied any involvement and subsequently changed and admitted your involvement in those offences?

MR KHUBHEKA: As I have explained that we are in the same prison, as well as my co-applicants. When we filled in the application forms, we came to an agreement. You see, nobody was helping us out in the filling in of the application forms, so we came to an agreement that as it were, we also saw the involvement of Mr Dullah Omar, the Justice Minister, involved in the establishment of the TRC, so that we came to a conclusion that therefore the Minister of Justice works hand in hand with the TRC and we agreed that we should use the same statements as we used in court, use them here in our applications.

MR MOHLABA: Thank you. I want you to take us through the incident of the shoot-out. Mr Ngwenya has indicated to the Committee that his firearm was not, was empty, he could not fire a single shot towards the officers, but he realised that there was an exchange of fire. Were you involved in the shoot-out with the police officers?

MR KHUBHEKA: Yes, I did partake in the shooting of the police.

MR MOHLABA: Can you explain briefly how this happened?

MR KHUBHEKA: When we left, remember that I went out of the house and I fled, jumping the precast wall, and as I was just about at the golf course, I saw Mfanafuthi and the others. Mfanafuthi, that is, and Maponyane. I saw their shadows in silhouette I suppose, following me, and we met at the park as people who were supposed to catch a taxi back home because the firearms that we had come for to defend our community, we were not secured.

When we went out of the golf course into a street, that is when we saw some 10111 vehicle belonging to the police, and this vehicle drove passed us and further down, made a U-turn back to us. It stopped at some place that seemed like a closed street, and when they stopped there, we had already made out what was happening, and we had already scattered.

When the police made this U-turn, I didn't see much of the things that were happening, except for the gunshot that I heard. I was also trying to flee to a place of safety where I could hide myself. There was this very high precast wall in this area, and there was some wall on the other area, therefore there was nowhere to flee to. I heard this gunshot and I also reacted the same way as any normal person would on being shot by the police.

We knew that the police, or should I say we knew how the police acted at that time, they didn't want to frisk us or search us, they just fired shots at us. I also reacted the same way, using the same firearm. Even though I was not necessarily aiming at a particular police person, but I was just shooting towards their direction as a result of the fright. I saw two policemen laying down. I got an escape and I fled.

MR MOHLABA: So you accept that you could be the person, or that is you were responsible for the death of the one police officer and for the injury of the other?

MR KHUBHEKA: Yes, I only learnt about that during the trial in court, because I knew that I was the one who was in possession of the firearm that was introduced in court. That is the firearm said to have been used in the fatal shooting of the police and the injuring of the other policeman.

MR MOHLABA: Thank you Chairperson, that is the evidence-in-chief.

NO FURTHER QUESTIONS BY MR MOHLABA

CHAIRPERSON: Thank you Mr Mohlaba. Mr Mapoma, do you have any questions that you would like to ask?

CROSS-EXAMINATION BY MR MAPOMA: Yes Chairperson. Mr Khubheka, are you the person who was found to have been, to have shot the deceased person in court?

MR KHUBHEKA: No.

MR MAPOMA: Who was found to have shot the deceased?

MR KHUBHEKA: Jacob Maponyane because, or should I say, that was only after he had been tortured into confessing.

MR MAPOMA: Your explanation for denouncing the statements that you have made before to the TRC, is that you agreed in prison to do that because you wanted to stick to the court record, is that what I understand you to be saying?

MR KHUBHEKA: Yes, that is correct. We perceived this as we explained that we thought this is the procedure, applications are processed here at the TRC.

MR MAPOMA: And you were found of having robbed jewellery, in court you were found of having done that, is that not so?

MR KHUBHEKA: Yes, we were charged for the robbery of jewellery.

MR MAPOMA: So why then don't you stick to that record and admit responsibility for robbery of the jewellery in line with your agreement with your co-applicants?

MR KHUBHEKA: The robbery of the jewellery, as I have explained earlier on, that we only saw the jewellery the following day, that is only when it occurred to us that there was jewellery, but that was not our intention.

MR MAPOMA: Yes, and you deny, in fact you deny that you robbed jewellery from those persons, you yourself?

MR KHUBHEKA: I personally did not rob them of any jewellery.

MR MAPOMA: In fact your version is that none of you, the three of you now here, participated in the robbery of the assets of those persons, apart from the firearms, is that correct?

MR KHUBHEKA: I have explained earlier on that we only learnt about the jewellery ...

MR MAPOMA: No, no, just answer my question. My question I just want you to confirm, my understanding is that, your version is that none of you as applicants there, was involved in the robbery of the jewellery and other belongings of those persons, other than the firearms? Is that correct or not?

MR KHUBHEKA: That is correct.

MR MAPOMA: Now let me just get clear here, when you arrived there, you say you caused the persons you were robbing, all of them to lay down, except for Mrs le Krish, is that correct?

MR KHUBHEKA: Yes, we made them all lay down. Mr le Krish came and he left in the company of Mr Ngwenya. Mr le Krish is the one who volunteered to show us the keys to the safe.

MR MAPOMA: Yes. And you were left there, keeping guard of those who were laying down?

MR KHUBHEKA: That is correct, indeed.

MR MAPOMA: Now, what were you doing at the time when Mr le Krish and Mr Ngwenya were somewhere else in the house, what were you left doing there?

MR KHUBHEKA: We watched over these people to make sure that they don't try tricks, because we were not quite sure whether there was anyone among them who has a firearm hidden somewhere in their possession or something. We wanted to make sure that they didn't start tricks that might disturb us.

MR MAPOMA: Yes. Now, amongst you who were keeping guard over those persons who were laying down, you are the only person who had a firearm with you, is that correct?

MR KHUBHEKA: That is correct.

MR MAPOMA: And once you heard a bang and a shoot-out, then you ran away?

MR KHUBHEKA: I went out of the house to investigate what was happening, because there was some noise and the person who was in possession of the firearm and now that these people were laying down, they certainly could not arise, and I took the opportunity to go and investigate outside. I heard a firearm or a fire shot and I then had to flee to save my skin.

MR MAPOMA: And your colleagues as well, fled?

MR KHUBHEKA: Correct.

MR MAPOMA: So, from that, when do you think then the robbery of those jewellery and other things took place? At what stage do you think that may have happened, given the explanation of the events that you have just given now?

MR KHUBHEKA: I cannot be specific as to the actual time, except to say that they were robbed of the jewellery, yes, because we saw it the following day, but as to how they were robbed of this, I really cannot say.

MR MAPOMA: Mr Khubheka, I put it to you that you must have witnessed robbery of the jewellery during that day, and if you say you did not witness that, you are not telling the truth before this Committee?

MR KHUBHEKA: I am telling you the truth, because had I seen the person who robbed them of the jewellery, I would not have allowed that, that was not within our plan, we went there solely for the firearms. I would therefore have stopped any attempt to rob these people of their jewellery.

CHAIRPERSON: Sorry Mr Mapoma, if I could just intervene. In the statement that you made to the Truth and Reconciliation Commission, I am looking at page 32 of the papers, right at the bottom it says -

what rings were you talking about there?

MR KHUBHEKA: That statement was derived from statements arising from confessions in court. I was being tortured and I therefore confessed to the police as stated there in the statement, but there is no way where I came across the police in the golf course as I was fleeing. We only met the police at Corlett Drive.

CHAIRPERSON: But this statement here, page 32, is not part of your confession. This is a statement that you made when you made your application, or after you made your application to this Committee?

MR KHUBHEKA: As I have stated earlier on when we met to fill in the application forms, we saw it appropriate to fill in the application forms based on the confessions because we didn't have much knowledge as to the operations of the TRC.

CHAIRPERSON: But notwithstanding, whatever you tell me, why say you "threw away a few rings?"

MR KHUBHEKA: It is because the police were torturing me and persuading me into admitting that I threw away some jewellery and therefore I would not say I was not in possession of these things, they were persuading me to that.

CHAIRPERSON: Thank you, Mr Mapoma.

ADV SANDI: Sorry Chair, if I can just take this a little further. Wasn't there a trial within a trial in court, where you told the Court that these confessions had not come from you willingly and freely and that you had been tortured by the police to make a confession?

MR KHUBHEKA: Would you please repeat the question?

ADV SANDI: Did you not tell the Court that you had been tortured by the police to make the confession?

MR KHUBHEKA: Yes, I did.

ADV SANDI: When you prepared a statement for submission to the TRC, you still relied on the very confession which you had challenged in court?

MR KHUBHEKA: Yes. That is because we regarded the TRC as the pure court, and realised that our chance for robbery is almost non-existent, as opposed to our chances for murder.

ADV SANDI: Thank you Mr Mapoma, sorry about that. You can continue.

MR MAPOMA: Thank you Chairperson. In your evidence,

are you aware at all that a video machine was robbed in that house?

CHAIRPERSON: While you are at it, and a camera?

MR MAPOMA: Yes, yes Chairperson.

CHAIRPERSON: I think it was an Olympus camera and a video machine, VCR?

MR KHUBHEKA: I disagree with that. No video machine was removed out of the house in my presence and certainly there is no camera that was removed from the house. That was a lie that was told in court.

MR MAPOMA: Thank you. Thank you Chairperson, no further questions.

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

MR MOHLABA: None Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions that you would like to ask?

JUDGE MOTATA: I've got none, Chairperson, or rather let me put it, in your statement again, just before then you say what my brother read to you on page 32, that earlier you say -

You can have sight of it before you noticed the police coming down Corlett Drive?

MR KHUBHEKA: Yes, I can see that.

JUDGE MOTATA: So you say you saw the jewellery when it was produced by Johnny the next day?

MR KHUBHEKA: That is indeed correct. I saw the jewellery the following day when Johnny produced it.

JUDGE MOTATA: When you regrouped after running away, was it only the three of you, that is before the shooting with the police?

MR KHUBHEKA: There were four of us.

JUDGE MOTATA: Who was absent?

MR KHUBHEKA: Johnny was the one absent.

JUDGE MOTATA: So you cannot vouch for Johnny for instance, that he might have hidden some other stuff he had taken from the house, you wouldn't know that, would you?

MR KHUBHEKA: What I know is what he produced, that he did without our permission, I am talking about the jewellery.

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

CHAIRPERSON: Mr Sandi, any questions?

ADV SANDI: No question, thank you Chairperson.

CHAIRPERSON: Just one question, what happened to the jewellery that Johnny produced?

MR KHUBHEKA: Once this jewellery was shown to us, he put it in a pocket and it was exchanged for ammunition.

CHAIRPERSON: Thank you. Any questions arising, Mr Mohlaba?

MR MOHLABA: No thank you Chairperson.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: None Chairperson.

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

MR KHUBHEKA: Thank you.

CHAIRPERSON: Mr Mohlaba?

MR MOHLABA: Thank you Chairperson, I would like to call the second applicant, Jacob Maponyane.

--------------------------------------------------------------------------JACOB MOLEKOA MAPONYANE: (sworn states)

CHAIRPERSON: Thank you. Mr Mohlaba?

EXAMINATION BY MR MOHLABA: Thank you Mr Chairperson. Mr Maponyane, were you present when the robbery and the murder and attempted murder as explained by your co-applicants?

MR MAPONYANE: I was present, Chairperson.

MR MOHLABA: Can you starting with the robbery, can you explain the role played by yourself?

MR MAPONYANE: I came with an information that I gave to my co-applicants that guns would be found at a particular place. We left and robbed at no 4 Otto Street, Illovo, at that particular house, and I was armed with a knife.

When we entered, we instructed them to lay down. Mr Ngwenya led us in the operation. Then Mr le Krish volunteered to show us where the safes are, where guns are put. He went there, then he informed us that he is not able to find the keys. Then Mrs le Krish told us that she would go and ask the domestic worker to give them the keys. When they went upstairs, I went with them.

We were shown the keys, they were given to Mr Ngwenya and then the small safe was opened, unlocked. She pointed out where a .38 was, on top of the wardrobe. After that I was given a .38 and .44 to take down because we, there was one person who was armed downstairs. That is when I went downstairs to hand over the gun.

When I arrived downstairs, I found Muzi. I don't know as to whether he was going towards the door, then I returned upstairs to go and fetch other guns which we were looking for. When I returned on the stairs, I heard a gunshot outside. Then I returned downstairs, then I produced the firearm and shot with that gun several times. I am not able to recall how many times did I shoot.

After that, I found an opportunity to escape. I ran away, I jumped the fence, I heard Muzi calling me near the bushes. We waited for others and then we discovered that Johnny was not there.

Whilst we were trying to catch a taxi, Johnny complained about his car, that it will leave some trace, and therefore I decided that I would not slip my cousin in that situation, not knowing what happened to him. The three of us decided that we should return to fetch the car and look for Johnny, maybe he was injured. On our way back to the house, the police car approached.

It passed through and pressed us towards a drive way, immediately thereafter they opened the door. I did not wait for a moment, I started shooting. Then they returned fire, I had the chance to escape, then I did. I met my co-applicants the following day in the township. I was the last time to arrive at that particular place having the .38. That is all Chairperson.

MR MOHLABA: How did you know that there were some firearms in that particular address?

MR MAPONYANE: One day together with my friends, we went to that particular house, we broke in, we found a .38 there, together with empty bags. At that particular house again, my mother was working at no 4 and my stepfather was working at the flats there. One day when I was at that particular flat, I saw le Krish's family carrying gun bags - that they have guns or firearms at that particular place.

MR MOHLABA: Evidence-in-chief, Chairperson.

CHAIRPERSON: Thank you. Mr Mapoma?

CROSS-EXAMINATION BY MR MAPOMA: When you were leaving, running away from the house, how did you, what exit did you take? --- I went through the door, then I went through Wanderers' fence towards the golf club.

MR MAPOMA: That is the door through which you entered?

MR MAPONYANE: That is correct Chairperson.

MR MAPOMA: Where were your colleagues then?

MR MAPONYANE: Johnny and Elvis were there together with Mfanafuthi. The one, I did not know as to whether he was Muzi.

MR MAPOMA: When you went away, you left together, your an away together?

MR MAPONYANE: No Chairperson, we did not go together, at the same time. We followed each other.

MR MAPOMA: Yes, almost at the same time, that is what I am saying, you followed each other, leaving all of you at the same time?

MR MAPONYANE: I am not able to recall Chairperson, but what I recall is that the person I met at the golf course, is Muzi. After some time Mfanafuthi came together with Elvis.

I did not see Johnny, as to whether where was he at that particular time.

MR MAPOMA: Thank you, no further questions Chairperson.

CHAIRPERSON: Any re-examination Mr Mohlaba?

MR MOHLABA: None, Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions that you would like to ask?

JUDGE MOTATA: Yes, just relating to - you also made a confession?

MR MAPONYANE: That is correct Chairperson, I was assaulted and then I underwent operations.

JUDGE MOTATA: And you were accused 2 in court?

MR MAPONYANE: That is correct.

JUDGE MOTATA: Your confession on page 83 says that you heard from Johnny that there is a house with two safes, I will read it to you, it is in Afrikaans.

INTERPRETER: We have a problem with Afrikaans.

CHAIRPERSON: Perhaps, if you could read it in English, I think, because they have a difficulty ...

JUDGE MOTATA: Yes, I heard from Johnny that there was a house with two safes and if I listen to your evidence-in-chief, you said that you told your colleagues about this house?

MR MAPONYANE: In my confession, I am not able to recall because I was assaulted, agreeing to whatever was said to me. I agreed so that they should stop the assault.

What is in the confession statement, is a lie. The truth is what I am saying today, that I am the one responsible for informing my colleagues about that particular house, I am the only one who knows Illovo better than anyone among us.

JUDGE MOTATA: You further say in your confession, that would be line 29, page 83, that is when you got there you said "we want jewellery and money".

MR MAPONYANE: As I have already stated that I was trying to protect myself and that they should stop assaulting me, that is what I told the Brixton police officers. I agreed to what had been said to me by them.

JUDGE MOTATA: They said you said when you arrived there, "we want jewellery and money", is that you were told by the police?

MR MAPONYANE: That has been said by the police.

JUDGE MOTATA: On page 84, line 30, were you told by the police again that you searched the safe for money and you found no money?

MR MAPONYANE: I was programmed by the police, I was assaulted and again I was confused in what I was saying. I did not know what to do during the assault.

JUDGE MOTATA: And again they told you to say that "I took the video machine"?

MR MAPONYANE: It is possible that it is so Chairperson, that I was instructed by them, because I am not able to recall.

JUDGE MOTATA: What was in this confession which you told them, if you say this is possible, because you are adamant in respect of the jewellery and money, you were told to say so in your confession by the police, but with this one, you are not certain?

MR MAPONYANE: All things which are in that confession, is a lie, because I was assaulted and I was confused. I agreed to anything which was said to me. What I am saying today, is the truth.

JUDGE MOTATA: That you parked the vehicle you had gone there with, amongst other houses, could that be a lie and you walked by foot to this house? Could that be a lie?

MR MAPONYANE: That is correct Chairperson, it may be a lie because we parked the car at Hard Rock Cafe parking area.

JUDGE MOTATA: That you jumped the wall and the door was open and you walked in softly?

MR MAPONYANE: It is true Chairperson, when we entered, we jumped the fence.

JUDGE MOTATA: And that the door was open as well?

MR MAPONYANE: That is true Chairperson, the door was open.

JUDGE MOTATA: And you walked softly into the house?

MR MAPONYANE: I am not able to remember Chairperson, there are dogs, immediately you enter, the dogs would bark.

JUDGE MOTATA: When you entered the house, who walked in first amongst the five of you?

MR MAPONYANE: Mfanafuthi Ngwenya entered first. He was followed by Muzi and followed by Johnny, I was the fourth.

JUDGE MOTATA: So that you couldn't have been told by the police, could you?

MR MAPONYANE: I am the one who was arrested first among my co-applicants.

JUDGE MOTATA: Then the police told you that you must say that Mfanafuthi is the one who walked in first, when you were the first to be arrested?

MR MAPONYANE: No Chairperson, I was the one who stated that fact.

JUDGE MOTATA: Because in the confession it says -

MR MAPONYANE: Yes, it is possible that it is stated that way, because they observed that he was the one who was armed.

JUDGE MOTATA: Who observed that he was armed, because I am talking about your confession?

MR MAPONYANE: I was the one who knew that I was armed, and then again Mfanafuthi was armed.

JUDGE MOTATA: And you said the video you threw away? That you were told by the police as well?

MR MAPONYANE: That is correct Chairperson, I was told by the police.

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

CHAIRPERSON: Mr Sandi, any questions?

ADV SANDI: Just one aspect Chair. Tell us about this other occasion you went to this house, when was that?

MR MAPONYANE: I don't remember Chairperson, it is somewhere in the beginning of 1991 or the end of 1990, I don't remember well.

CHAIRPERSON: You see there is mention in the judgement that the house was broken into about six months before you went in there with your co-applicants? Would that be about right?

MR MAPONYANE: It is possible Chairperson.

ADV SANDI: Who did you go with?

MR MAPONYANE: It was, I was with Tlhompo. It was the two of us.

ADV SANDI: What did you steal there?

MR MAPONYANE: We stole money and a firearm.

ADV SANDI: What did you do with that money and the firearm?

MR MAPONYANE: I sold the firearm.

ADV SANDI: Who had given you orders to do that?

MR MAPONYANE: It was not in accordance with instructions, it is because I did not have money to pay for school expenses, I went there to steal because I saw them taking a journey.

ADV SANDI: Okay. Thank you. Thank you Mr Chairman.

CHAIRPERSON: Why did you sell the firearm when your community so drastically needed firearms to protect itself?

MR MAPONYANE: It was not during that particular situation where the community needed it.

CHAIRPERSON: Are you saying it was all peaceful in Alexandra six months before you broke into the house in October?

MR MAPONYANE: Yes, there was calm during that time, because early 1991, we were able to enter the hostel and participate in various activities.

CHAIRPERSON: Any questions arising, Mr Mohlaba?

MR MOHLABA: No thank you Mr Chairman.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: No thank you Chairperson.

CHAIRPERSON: Thank you. That concludes your testimony, you may stand down.

CHAIRPERSON: Mr Mohlaba?

MR MOHLABA: That will conclude the evidence for the applicants.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Thank you Chairperson. Chairperson, I am not calling any further evidence, except Chairperson, to point out that I have the details of the parents of the deceased person, that is Stephen Oosthuizen. The parents are Mr Nick Oosthuizen and Mrs Sylvia Vetter and c/o their daughter, Mrs Linda ...(indistinct). The address is 213 Hutchinton, 122 Harper Avenue, Benoni.

CHAIRPERSON: Thank you.

MR MAPOMA: That is all Chair.

CHAIRPERSON: Thank you. Do you have any submissions to make Mr Mohlaba, or would you prefer to take the lunch adjournment now, I see it is ten past one?

MR MOHLABA: Please Chairperson.

CHAIRPERSON: We will take the lunch adjournment now.

CHAIRPERSON: Thank you. Mr Mohlaba?

MR MOHLABA IN ARGUMENT: Thank you Chairperson. Chairperson, I will have a brief address only in respect of the proof of political motive. Chairperson, the applicants have indicated that they formed a structure themselves, which was not in line with the normal SDU's, that is the formation thereof, where mostly the SDU's will be formed by the ANC from its inception and guided by the ANC, the MK cadres.

This was a particular one which obviously had the objective of defending the community against an identified enemy, and subsequent to that there is evidence that they were in contact with the ANC offices who did not tell them or instruct them to resist from conducting themselves as they did. We further heard that they requested that certain cadres should come and reside within their area, and their request was subsequently honoured.

So Chairperson, I will submit that these people were not disowned by the ANC, they were doing exactly what the ANC wanted to see happening. Therefore they fall within the ambit.

With respect to the element of disclosure, certainly Chairperson, there have been information which was given when they made their applications, which information was not accurate, and now they appear before the Committee and gave the true facts, that is portrayed the scenario as it unfolded without denying that they participated in the act of murder and attempted murder.

Chairperson, that will be, I will submit that the element of disclosure is the, should be viewed at the moment when they sit before the Committee and what they disclose. The fact that they disassociated with their earlier statement, that is they did not want to stand by that previous statement, I submit that should not be construed as a ploy to try to hide certain things. I submit that the explanation given with regard to their earlier statement, is a plausible one and should be accepted by the Committee. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Mohlaba. Mr Mapoma?

MR MAPOMA: Chairperson, I will leave it to the Committee, I am not arguing.

CHAIRPERSON: Thank you. We will be handing down a written decision in due course, which we hope to be as soon as possible and we accordingly reserve our decision in this matter. Mr Mohlaba, thank you for your assistance in this matter. Mr Mapoma, thank you. Which matter will we be hearing now?

MR MAPOMA: At this stage Chairperson, I am calling Aaron Mkhwanazi, AM7015/97.

CHAIRPERSON: Yes, thank you, we will now commence with the hearing of the amnesty application of Mr Aaron Mkhwanazi. At this stage I would request the legal representatives to kindly place themselves on record.

MR NYAWUZA: Thank you Chairperson and the Committee Members, my name is O.P. Nyawuza, I am representing Mr Mkhwanazi in this application, thank you.

MS VILAKAZI: Thank you Mr Chairman and Honourable Commissioners. I am L.E. Vilakazi, representing the victims in this matter.

CHAIRPERSON: Thank you Ms Vilakazi.

MR MAPOMA: Thank you Chairperson, Zuko Mapoma, Evidence Leader.

CHAIRPERSON: Thank you Mr Mapoma. Mr Nyawuza, are you going to be commencing with the leading of the applicant?

MR NYAWUZA: Yes, I will, but before that Chairperson, I wish to address the issue of the gentlemen that the Committee sees sitting with us at this table.

MR NYAWUZA: They are implicated persons in this application. The gentleman, the third from me, the one who stood up, is referred to as Tait in the applicant's affidavit and the gentleman at the far right, is referred to as Ernest Pule, a Commander at that time.

My instructions, Chairperson and Honourable Committee Members are that all these gentlemen did apply for amnesty for this particular matter, and I have in my possession a letter from the TRC that confirmed acknowledgement of receipt of the application form by Tait, but the gentleman on the far right, Mr Ernest Pule did not receive any confirmation relating thereto.

CHAIRPERSON: Have you got that letter?

MR NYAWUZA: Yes, I have it.

CHAIRPERSON: If we can just see it Mr Nyawuza. Thank you. Sorry, Mr Nyawuza, Tait, is Tait and Mr George Koloi Sibanyoni the same person?

MR NYAWUZA: Yes, that is so Chairperson.

CHAIRPERSON: You confirm that Mr Sibanyoni?

MR SIBANYONI: Yes sir.

CHAIRPERSON: Mr Mapoma, do you know anything about this aspect?

MR MAPOMA: Chairperson, unfortunately it is only now that I hear of it, I have not had an opportunity now to check with Cape Town what the position is. I don't know, I would need some time Chairperson, to communicate with the Head Office in Cape Town.

CHAIRPERSON: Mr Nyawuza, Mr Pule, has anybody made any enquiries to the TRC relating to both Mr Sibanyoni's and Mr Pule's application? Sorry, are you Mr Pule, or is that a pseudonym, is that your real name? Have you made any enquiries at all regarding your application, I just want to find out because Mr Mapoma, as he says, will have to make enquiries, so we just need some information?

MR PULE: I didn't make any enquiries specifically, because we had spoken to the lawyer in Pretoria who had confirmed that we would be called very soon. We were then given notices that we would be appearing as from yesterday.

CHAIRPERSON: Yes, as implicated people, but not applicants? Have you got your notices?

MR PULE: Yes, I have my notices.

CHAIRPERSON: I am sure they will be for the implicated persons, won't they Mr Mapoma?

MR MAPOMA: Yes Chairperson.

CHAIRPERSON: Yes, they are not as applicants as such. Mr Pule, can you recall more or less when you applied, was it at the same time as Mr Sibanyoni? I see Mr Sibanyoni applied at least before May 1997, because this letter acknowledging receipt is dated the 28th of May 1997?

MR NYAWUZA: Chairperson, if I may come in to clarify that. In actual fact Mr Sibanyoni's application form was given to Mr Pule to submit to both the applications were submitted on the same day and further to that, Mr Pule was the one who is the first person to make a statement relating to this application.

CHAIRPERSON: Mr Pule, when you say you submitted the application with Mr Sibanyoni, together with Mr Sibanyoni's, how did you do it, did you post it or did you go into one of the TRC offices and hand it per manu, by hand?

MR PULE: We did our applications sir, through Paula McBride who was then supposed to be representing us, and she is the one who had submitted our applications through to Cape Town.

CHAIRPERSON: And Mr Sibanyoni and Mr Pule, their applications relate to the same, are they the same as Mr Mkhwanazi's or is it other incidents as well?

MR NYAWUZA: That is so. Their applications relate to this application, in actual fact, they are amazed as well, that they were not called as co-applicants, but as implicated people.

CHAIRPERSON: Yes, because I am sure Mr Mapoma is as amazed as they are and as we are? What do you want to do now, Mr Mapoma, you will obviously have to look into this?

MR MAPOMA: Yes Chairperson, I will propose that this matter stand down, so that I can communicate with the Cape Town office to find out what the position is. Alternatively in the meantime while the enquiries are still taking place, I will call the other matter to proceed with, whilst the enquiries are taking place, and then thereafter this matter will once again be reinstated.

CHAIRPERSON: Yes, because - if it is, depending, there probably wouldn't be, if it is exactly the same incident, the necessity for any further investigation, would there?

MR MAPOMA: No, no, all that would be necessary Chairperson, is just to find out whether it cannot be confirmed.

CHAIRPERSON: To get numbers, we've got one number and then just to, I think the main thing is really with regard to Mr Pule's application, because at least here we have a number.

MR MAPOMA: Yes.

CHAIRPERSON: I wonder if you couldn't make a photocopy or arrange for a photocopy of this letter to be made and then you can quote this number and I am sure that Mr Pule's number should be very close to that number, seeing they were submitted together.

MR MAPOMA: Yes, it must.

CHAIRPERSON: I do know from the Attorney mentioned by Mr Pule, that quite a number of applications were forwarded by them. I am sure something should be able to be found. Maybe it was just a glitch, I cannot explain why it is not before us, I just cannot begin to explain why not.

Unfortunately Ms Vilakazi and Mr Nyawuza, we will have to stand this down for a while, while Mr Mapoma gets in touch or sets the machinery in motion to communicate with our Cape Town office and we hope this can be sorted out as soon as possible.

MR NYAWUZA: We don't have a problem, thank you.

CHAIRPERSON: Thank you. Mr Mapoma, what do you want to do now, do you want to stand this matter down for a while and go on with the other, or do you want us to take a short adjournment, what do you want to happen now?

MR MAPOMA: Yes, Chairperson, I would propose that I stand this matter down and then in the meantime whilst the TRC staff are ...

CHAIRPERSON: Then we carry on with the next one. Yes. We will stand this matter down and in the meantime while enquiries are being made, we will proceed with the other application. I apologise for the inconvenience caused by this delay.

MR MAPOMA: Unfortunately Chairperson, the legal representative, oh, is here, is Garane.

CHAIRPERSON: Thank you, we will now then proceed with the application of Mr Sandile Garane, that is application no 5474.

--------------------------------------------------------------------------CHAIRPERSON: May I ask the legal representatives please to place themselves on record?

MR MOHLABA: Thank you Chairperson. The name is Vuka Mohlaba, I am appearing for the applicant.

CHAIRPERSON: Thank you Mr Mohlaba.

MR MAPOMA: I am Zuko Mapoma, the Evidence Leader, Chairperson.

CHAIRPERSON: Yes.

MR MAPOMA: Chairperson, before we commence, the issue regarding the victims in this matter is as follows: the Investigative Unit have been trying to locate victims in this matter, but all in vain. In fact the report that has been prepared by the Evidence Analyst is as follows -

I may add Chairperson, to say that we have also spoken to Mr Abram Mzizi, who is an IFP leader in this area to try to get his assistance in this matter. He himself has reported to us that he cannot be able to find the victims in this matter, but the victims are said to have been members of what was called the Toaster Gang. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Mapoma. It would seem that reasonable steps have been taken to establish the whereabouts of the victims and that there has just been no success at all.

MR MAPOMA: Yes.

CHAIRPERSON: I think in the circumstances, we should proceed with the application.

MR MAPOMA: As the Chairperson pleases.

CHAIRPERSON: Thank you. Mr Mohlaba, will you be leading the evidence of the applicant?

MR MOHLABA: That is correct Chairperson, and he elects to give his testimony in Zulu.

CHAIRPERSON: Thank you.

SANDILE BIRMINGHAM GARANE: (sworn states)

CHAIRPERSON: Thank you. Mr Mohlaba?

EXAMINATION BY MR MOHLABA: Thank you Chairperson.

Mr Garane, you are the applicant in this matter and you are applying for amnesty for an offence of killing somebody, is that correct?

MR GARANE: That is correct.

CHAIRPERSON: I see it is murder and attempted murder, is that correct?

MR GARANE: That is correct.

MR MOHLABA: Thank you Chairperson. Do you know the person who was killed, and the one who you attempted to kill?

MR GARANE: No, I don't know their names.

MR MOHLABA: And you are applying for amnesty on the basis that these offences were committed with a political objective. Did you belong to a political organisation during this period, that is during 1993, the period September and October?

MR GARANE: That is correct.

MR MOHLABA: Which organisation?

MR GARANE: The ANC.

MR MOHLABA: What was your position there, were you a member of MK, were you - can you just explain, what was your position there?

MR GARANE: My position, or let me say in 1990 we established the SDU's in our section resulting from the violence that we were facing. Our section is just in front of the hostel.

CHAIRPERSON: Before you proceed Mr Garane, whereabouts was this? Which place?

MR GARANE: Sangwane Section in Tembisa. As I have indicated, Sangwane Section is next to the hostel and there was violence in Tembisa. There was a need for us to establish SDU's, and as a member of the ANC, we had a meeting in our section, after which the SDU's were formed, which SDU's, I became a member of.

On the day of the establishment of the SDU's, the question was raised as to what we were going to use to defend ourselves, because the people were armed. It was suggested that money be raised and each household contributed some money, which were to be used in purchasing arms and ammunition towards the protection of the community.

In the process the violence continued, so that in 1993 we were deployed at the shops at Sangwane Section. It was roundabout seven o'clock in the evening, just before closure, and we heard gunshots at the taxi rank, next to the shops. Myself and my companion, Vusi Mavuso saw some people running towards the shops.

CHAIRPERSON: Who was with you?

MR GARANE: Siphiwe Mavuso.

CHAIRPERSON: You heard shots and you ran towards them?

MR GARANE: We heard gunshots and we saw a group of people coming towards us at the shop.

CHAIRPERSON: How big a group?

MR GARANE: It was not a big group, but it was a mixture of males and females, they were coming towards us, apparently fleeing.

As we were trying to establish what was happening, we saw two boys coming towards our direction and we took different positions. Siphiwe took his own position and I did so as well. They fired a shot, two shots towards us, and I hid behind a post, the kind of posts that are used for advertisements.

CHAIRPERSON: When you say boys, what do you mean, "umfanzu", young men or ...

MR GARANE: They were a little bit matured, I am not talking about young boys.

CHAIRPERSON: You are talking about young men?

MR GARANE: Yes. That is correct. They fired two shots at us, and I responded with two shots. One of them ran away and fell, and the other one ran away and Siphiwe ran after the other one, and I was still hiding behind this lamp post, waiting for this one, the one who had just fallen down.

Siphiwe came back without having apprehended the one who was fleeing. We took the firearm from the one who was laying down and we fled. We went to report at our Headquarters where our Commander was, Mzwakhe Radebe. We reported to him what transpired at the shops, and he said he knows that now that such a thing had happened, the people from the hostel might come and launch an attack.

We withdrew other units from where we had deployed them, to be stationed in that strategic point. That is where we deployed these members, waiting for this apparent attack, because one of these two people had fled, and we feared that he might go and report to his own people and we waited for them there. They didn't come.

CHAIRPERSON: Mr Garane, this person that you reported to, what was his name, Mr Radebe, what was his first name?

MR GARANE: Mzwakhe.

CHAIRPERSON: What was he, I mean what position did he hold in that area?

MR GARANE: He was the Overall Commander as the SDU's.

CHAIRPERSON: Thank you. Mr Mohlaba? Sorry, just one question before you move on. This person that fell after you shot him and the one from whom you took the firearm, when you went up to where he was laying and took the firearm, was he still alive or don't you know, or did he appear to be dead?

MR GARANE: I didn't get to him, the one person who got to him was Siphiwe, because he was coming back after running after the one who was fleeing.

CHAIRPERSON: Was he laying there still, just not moving?

MR GARANE: Yes, he was just laying there.

CHAIRPERSON: And I presume that is the person who you apply for amnesty in respect of murder, he must have died?

MR GARANE: That is correct.

CHAIRPERSON: And the attempted murder, obviously is the one you shot at, but ran away? But you don't know whether you hit the other one or not?

MR GARANE: I cannot say whether he got shot or not.

CHAIRPERSON: Thank you Mr Mohlaba?

MR MOHLABA: Thank you Chairperson. What did you do with the firearm which you took, which was taken from the person who was laying down?

MR GARANE: Procedurally within the SDU's, we had to take such a firearm to our Overall Commander, Mzwakhe.

MR MOHLABA: Do you know what happened to it ultimately after you took it to Mzwakhe?

MR GARANE: I cannot say what happened to the firearm thereafter.

MR MOHLABA: Were you ever arrested for having shot at these persons?

MR GARANE: No.

MR MOHLABA: Evidence-in-chief, Chairperson.

CHAIRPERSON: Thank you Mr Mohlaba. Mr Mapoma, have you got any questions that you would like to put to the applicant?

CROSS-EXAMINATION BY MR MAPOMA: Just a few Chairperson. Have you ever been a member of Umkhonto weSizwe?

MR GARANE: Correct.

MR MAPOMA: Where did you train, inside or outside the country?

MR GARANE: Inside the country.

MR MAPOMA: When did you undergo your training?

MR GARANE: In 1987.

ADV SANDI: Where was that inside the country?

MR GARANE: We trained underground at the Katlehong cemetery at night.

CHAIRPERSON: By meaning you trained underground, I take it you didn't go into the graves and train, you trained on top of the ground, but secretly?

MR GARANE: Yes, on the graves, not under the graves.

CHAIRPERSON: Mr Mohlaba? Mr Mapoma?

MR MOHLABA: Thank you Mr Chairperson, I don't have any further questions.

MR MAPOMA: No further questions, Chairperson, that is it.

CHAIRPERSON: No re-examination, Mr Mohlaba?

MR MOHLABA: None, Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions that you would like to put to the applicant?

JUDGE MOTATA: I've got none, Chairperson.

CHAIRPERSON: Adv Sandi, any questions that you would like to put to the applicant?

ADV SANDI: Yes, just by way of clarifying something. Do you know if this incident was perhaps covered in a newspaper article or any form of media?

MR GARANE: I am not quite certain.

ADV SANDI: Thank you Chair.

CHAIRPERSON: Did you at any stage learn that the person who was laying down after you shot him, in fact died?

MR GARANE: Yes, I did.

CHAIRPERSON: How did you get that knowledge?

MR GARANE: We learnt from people as they were talking, you see, we would not tell these people what we did the previous day, because we were fearing arrest, but we heard from people, yes.

CHAIRPERSON: Thank you. Mr Mohlaba, any questions arising out of questions put by the Panel?

MR MOHLABA: None, Chairperson.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: None Chairperson.

CHAIRPERSON: Mr Garane, thank you, that concludes your evidence.

CHAIRPERSON: Mr Mohlaba?

MR MOHLABA: That will be the evidence for the applicant, Chairperson.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: I have no further evidence, Mr Chairperson.

CHAIRPERSON: Mr Mohlaba, would you like to make submissions?

MR MOHLABA: I have no address, Chairperson.

CHAIRPERSON: Other than that you are asking for amnesty?

MR MOHLABA: That is correct.

CHAIRPERSON: Yes. Mr Mapoma?

MR MAPOMA: No, no address, Chairperson.

CHAIRPERSON: As you know, it is the policy that we hand down written decisions in this matter. One will be done as soon as possible and our decision will be known when we hand down the written decision, but it will be in the near future. Thank you very much.

Do you want a short adjournment now, Mr Mapoma?

MR MAPOMA: Yes Chairperson, I would appreciate that.

CHAIRPERSON: You can find out what has happened with regard to Mkhwanazi and others.

MR MAPOMA: Yes.

CHAIRPERSON: Thank you. We will take a short adjournment, just to find out what has happened about Messrs Pule and Sibanyoni's application. Mr Mapoma, if you would just let us know when you are ready, we will recommence then. Thank you.

ON RESUMPTION

CHAIRPERSON: Thank you. During the short adjournment that we have just had, we have learnt that there is an application from Mr Pule at the TRC offices and I think in the circumstances, although we don't have it before us, it would be practical and wise to proceed with the matter as regards to Mr Pule, as an applicant.

We will obviously have to resort to the actual application before making a final decision. As you know, one of the requirements for the granting of amnesty is that the application itself, complies with the requirements of the Act, namely that it was submitted timeously, filled in correctly, etc.

So we would have to have recourse to that before a final decision would be made, but it would be practical to hear him now.

With regard to Mr Sibanyoni, it has also been established that there is an application, but also a decision refusing the application on the grounds of, in chambers, on the grounds of no full disclosure. The application of Mr Sibanyoni relates to the exact same incidents as that of Mr Mkhwanazi and Mr Pule. After having discussed the matter with Mr Nyawuza, the applicants' Attorney, Mr Mapoma and Ms Vilakazi, we have decided that in the circumstances, it would also be practical for us at this stage, to hear the evidence of Mr Sibanyoni.

Then we would have to make enquiries regarding that decision and see what can be done after that, but we as a Panel don't have any power or jurisdiction or authority to set aside decisions here, we would have to, if it is going to result in some sort of gross injustice regarding Mr Sibanyoni, refer the matter to the Amnesty Committee as such and try to resolve the matter if it falls to be resolved.

I think if we can proceed on that basis then.

MR NYAWUZA: Thank you Chairperson. Chairperson, I am going to start with Mr Pule, with the evidence of Mr Pule.

CHAIRPERSON: Mr Pule, what are your full names?

MR PULE: My full name is Ernest, second name is Lekoto.

CHAIRPERSON: Sorry, just spell the second name or just say it again?

MR PULE: Lekoto. Pule.

MR NYAWUZA: Mr Chairperson, Mr Pule, would give testimony in Tswana.

CHAIRPERSON: Yes. Tswana is channel 4. Mr Pule, can you hear me now?

MR PULE: I hear you Chairperson.

ERNEST LEKOTO PULE: (sworn states)

CHAIRPERSON: Thank you. Mr Nyawuza?

EXAMINATION BY MR NYAWUZA: Thank you Chairperson and Honourable Committee Members.

Mr Pule, where are you presently resident?

MR PULE: I am staying at Delville in Germiston.

MR NYAWUZA: Is it correct that you applied for amnesty for an incident that occurred on the 31st of July 1990, at Braklaagte?

MR PULE: That is correct.

MR NYAWUZA: At the time of this incident, what were your political affiliation?

MR PULE: I was a member of the African National Congress, Chairperson.

MR NYAWUZA: What capacity were you in?

MR PULE: I was a member of the ANC and again a member of Umkhonto weSizwe.

MR NYAWUZA: On the 31st of July 1990, an incident occurred at Braklaagte. Can you briefly tell us what happened and how you got to do that?

MR PULE: In 1988 and up to 1990, in Bophuthatswana, there was violence at that particular time.

CHAIRPERSON: Do you mean political violence?

MR PULE: That is correct. It is because people of Braklaagte were not prepared to be incorporated into Bophuthatswana.

Mangope's government wanted to force those people to be amalgamated in his government during that time.

CHAIRPERSON: Mr Pule, could you just enlighten me, whereabouts is Braklaagte?

MR PULE: From Zeerust to Botswana, to Botswana's border, you pass through Braklaagte. It is about 24 kilometres from Zeerust on your way to Botswana.

CHAIRPERSON: Thank you.

MR NYAWUZA: (microphone not on)

MR PULE: We, as members of Umkhonto weSizwe, we were observing the situation in Bophuthatswana then. At that time, I was in Botswana and I was one of the Commanders of MK. I sent Mr Mkhwanazi and Mr Sibanyoni to go and observe the situation there.

It was the beginning of July when I sent them to do reconnaissance, and then again as to whether it would take again the location of the South African Defence Force and the South African Police, as to whether where do they stay, or their camps.

CHAIRPERSON: So, it was only a question of looking at the South African Defence Force and South African Police, not the Bophuthatswana Police?

MR PULE: It was to make reconnaissance for all Security Forces, because both the Bophuthatswana Police and the South African Police and the South African Defence Force, would be involved. They were going to reconnoitre the movements of all Security Forces members there.

MR NYAWUZA: So is it correct that the reconnaissance was made, Mr Pule?

MR PULE: That is correct Chairperson, they were done.

MR NYAWUZA: And then after the report back from you, what subsequently happened?

MR PULE: After they returned in Botswana, we sat down and they gave me a report about their reconnaissance, then as to whether what kind of firearms would be needed in the operation.

When they left, I was with them, we were five in number.

ADV SANDI: Maybe before you get there, you should tell us what report was given back to you?

MR PULE: The report included that the Security Forces used to patrol in the village to verify that people are not lingering around or are involved in mass action activities because people were fighting back with stones.

The two gentlemen I sent, came back with a report that other than the patrols which were made by Security Forces, the members of the Bophuthatswana Defence Force had a camp in Braklaagte. That is the camp which we planned to attack.

MR NYAWUZA: So you earlier on referred to arms, what kind of arms were you going to use in attacking this camp?

MR PULE: We had AK47's, Bazooka's and handgrenades.

MR NYAWUZA: How many? How many Bazooka's, how many AK47's?

MR PULE: We had two Bazooka's. Each and everyone had an AK47 and two to three grenades, each.

MR NYAWUZA: How did you get into South Africa, because you referred us that you were in Botswana, how did you get into South Africa?

MR PULE: Before, other than making observations about the whereabouts of the camp of the BDF, they engaged other people to help us through the border of Bophuthatswana. We crossed the fence, because they knew where we were going, and then again we went to those people who were assisting us, to give us accommodation, so that the following day we would be able to prepare the attack itself.

MR NYAWUZA: So Mr Pule, in essence you are saying you infiltrated South Africa on the 30th of July 1990, is that so?

MR PULE: That is correct Chairperson, we crossed the border on the 30th, in the evening.

MR NYAWUZA: And the 31st of July 1990, what happened?

MR PULE: On the 31st, we hoped that we would get transport from one of them who was working inside, that would be the transport we would be using in the evening when we will be attacking. In the afternoon we realised that the person was not coming, and therefore we were going to be late. Because of that reason, I sent Mr Mkhwanazi and Mr Tait and the other person whom I don't know where he is, to go and look for transport.

They were supposed to look for any kind of transport, even if it meant hijacking. Even if they were to look, they would seek a lift from somebody and hijack his car, that would be in order. After they hijacked a car, they came to us and picked us up where we were hiding.

We took our arms and we went to that particular location in Braklaagte.

MR NYAWUZA: How far were you from Braklaagte, because I hear you say you went to a particular location, how far were you from Braklaagte, your hiding place?

MR PULE: I estimate approximately 20 to 30 kilometres, because it was not far from the border of Botswana and we were going towards Zeerust. That is where Braklaagte is. It takes time to get there.

MR NYAWUZA: Mr Mkhwanazi and Tait, who we today know as Sibanyoni, came to pick you up and what happened?

MR PULE: After they picked us up, we took our arms and then we went to Braklaagte. When we arrived at Braklaagte, we saw the camp, that is the camp that we were supposed to attack. Whilst we were preparing to disembark ...

CHAIRPERSON: Sorry Mr Pule, this camp, was it Police or Defence Force?

MR PULE: Then we thought it was used either, or at times by police or at times by the soldiers.

MR NYAWUZA: In what way were you going to attack this camp, were you going to bring this camp down or were you going to walk into this camp, use whatever ammunition you had, in what way?

MR PULE: The intention was to go there and attack with the AK47's and Bazooka's and the handgrenades. When we came nearer to the camp, we were disturbed by two vans which were coming from the front.

When we saw those vans, we instructed the driver that he should not stop because we wanted to stop near the gate, he should pass a little, so that we would be able to watch the movement of those two vans. After they passed, we realised that those cars belonged to the camp. They passed us. We went a little bit further down, about 100 meters.

One car, of the two cars, returned before it entered the camp, and then followed us. At that time, because we were ready to shoot, we decided that if they were going to stop us, we were going to shoot at them. Unfortunately they did not stop at the back, they stopped at the right hand side, about 20 metres on the right hand side.

MR NYAWUZA: What kind of a van was this, is this a huge van or the usual police vans that you see, the small ones?

MR PULE: If I remember well, it is a Ford or a Mazda. It was a bakkie, that is a 1 Tonner.

Unfortunately they did not stop at the back as we thought, so they came on the right hand side, therefore we disembarked, being ready with our arms. Immediately we started attacking them before they started attacking us, because we were ready, then we started shooting.

MR NYAWUZA: Did you shoot indiscriminately, or you aimed at a specific person? Did you shoot indiscriminately at the van, or did you aim specifically at a particular person?

MR PULE: It was at night, so you will not be able to verify to shoot a particular person. We just gathered that any person that is within that van, is our enemy, therefore we attacked indiscriminately.

Because the car was not, it was near us, we did not use Bazooka's, we used the AK47's.

MR NYAWUZA: At what time of the night was this attack undertaken?

CHAIRPERSON: The question was at approximately what time of the night did this happen?

MR PULE: Approximately half past eleven, to twelve o'clock, at night.

MR NYAWUZA: This police van, were you able to see that it was a police van, what gave you the indication that this was a police van, was it marked or it had a particular colour that you could attach to the Police Service at the time, or the SANDF or the Bophuthatswana Police?

MR PULE: We saw it clearly, we were able to identify that it was a police van, even though it was at night, because it had some, it was the same as the cars which were used by the Bophuthatswana Police at that time.

MR NYAWUZA: Mr Pule, you testified that you disembarked from your motor vehicle and then fired at this police van. What subsequently happened, did this people fire back at you, you fired at them, and what happened?

MR PULE: The way we disembarked and started shooting, there was no way where they would be able to retaliate or return fire, so no one had a chance to return fire from that van. So therefore, there was no gunshots from that van because our fire power was strong.

MR NYAWUZA: What happened after the shooting?

MR PULE: I took a decision as a Commander that we should retreat from that area immediately, because we did not know at the camp, are they ready or not, as they heard gunfire from the shooting.

MR NYAWUZA: Your retreat, tell us about your retreat?

MR PULE: We retreated not with the road we used, we went further down on the other side of the camp, so that they would not be able to make a counter attack.

Then we returned to the road we used, but on the other direction.

MR NYAWUZA: And then what happened?

MR PULE: After we returned, we went around Motswedi, we went near the border fence, we disembarked from the car, we left everything, the keys and everything we found in that car, and we left it there.

MR NYAWUZA: Mr Pule, do you regard the incident that happened on the 31st of July 1990, at Braklaagte, as an incident that is politically motivated?

MR PULE: Yes, it is true that it is related to political activities, as I have stated earlier that Mangope was pressurising and the South African government was pressurising that Braklaagte's community would be amalgamated to Botswana.

MR NYAWUZA: Do you feel that the incident that occurred on that particular day, had an effect on what subsequently happened to Bophuthatswana?

MR PULE: Please repeat your question.

MR NYAWUZA: Mr Pule, your testimony is that you attacked the police officers who were based in Braklaagte because they were insisting that Braklaagte should be incorporated into Bophuthatswana and some sections of the community were against that. Was Braklaagte subsequently incorporated into Bophuthatswana or not?

MR PULE: In terms of my recollection, that was not possible, because other than the attack, the Braklaagte community were fighting and challenging the incorporation to Bophuthatswana.

MR NYAWUZA: So you believe your attack on this thing, had an effect on Braklaagte not being incorporated, is that so?

MR PULE: I believe that strongly Chairperson, because the Braklaagte community were strengthened, because they realised that they were not alone in challenging the Bophuthatswana government in their denial to be incorporated into Bophuthatswana.

MR NYAWUZA: Mr Pule, were you financially reimbursed for this particular action that you took on that particular day?

MR PULE: As members of the ANC and as members of MK, we were fighting without any benefit, because we knew that we were fighting on behalf of all South African citizens, in Bophuthatswana, in Venda, in Transkei. We did not hope to be reimbursed later.

MR NYAWUZA: Mr Pule, what is your present occupation, are you still with the ANC, or are you somewhere else now?

MR PULE: I am still a member of the ANC, although I am no more active, because I am a member of the South African Defence Force.

MR NYAWUZA: Will I be correct if I say on your coming back to the country, you were incorporated into the present SANDF?

MR PULE: When we returned, we who were members of MK, we were integrated with the South African Defence Force and Bophuthatswana Defence Force and Transkei, and Venda Defence Forces.

MR NYAWUZA: Mr Pule, is that your evidence as regards the incident that happened on the 31st of July 1990?

MR PULE: Yes, but I wanted to say something to the relatives of the victims.

CHAIRPERSON: Mr Pule, I don't mean to interrupt, but before you get to that, if we can just get some evidence. Did you learn whether people were killed or injured as a result of the attack on that motor vehicle?

MR PULE: Yes, I learnt that after, we read in the newspapers and listened to the newspapers, so that we would be able to be briefed about what happened.

CHAIRPERSON: As far as you know, what were the casualties?

MR PULE: As we knew that during the Mangope and apartheid government's reign, we would received a sifted information, because if people were affected, they would put a propaganda that three people were affected, not ten, or nine.

We would read the newspapers saying that we learnt that so many people had died, but we knew that it was not true. We would get the real information later.

CHAIRPERSON: What information did you finally end up having, what do you believe happened, as you sit here now, what do you believe the casualties were as a result of that attack which you have just described?

MR PULE: I know very well that four people died and two people were injured.

CHAIRPERSON: Mr Pule, you said you wanted to say something.

MR PULE: I wanted to say to the relatives of the victims, I am saying sorry about what happened, because you lost your loved ones during that operation. I request them to understand that we were in a situation of war. We were not fighting so that we would be able to benefit money wise, but we were fighting so that we would achieve political goals, because we were fighting for the whole nation.

People who divided us, like Mangope, Matanzima and other Bantustans leaders, were the people who were responsible for the loss of your loved ones, because they created this conflict which has made us to come here and attack that camp and in other attacks which happened.

It happened because members of the Umkhonto weSizwe were obliged to enter in that war and the Mangope and his colleagues were responsible and they are now living in luxury. They are in positions, they created the situation where people were killed and others were injured, so I am asking for the relatives of the deceased and the victims to forgive us, because we were not doing this to please anybody.

It is, we have liberation today because of the efforts from us and others who have lost their lives. I request them to understand that we are sorry for what we did. That is all Chairperson.

MR NYAWUZA: Thank you Chairperson and Honourable Committee Members, that will be the evidence of Mr Ernest Pule.

CHAIRPERSON: Thank you Mr Nyawuza. Ms Vilakazi, do you have any questions you would like to put to Mr Pule?

CROSS-EXAMINATION BY MS VILAKAZI: Thank you Honourable Chairperson, I do have a few questions for the sake of clarification. Mr Pule, when you went to attack the army base, how many were you?

MR PULE: We were five in number.

MS VILAKAZI: And can you name those people?

CHAIRPERSON: I think it is the three before us now, the other two people?

MR PULE: We knew others only with Mkululi, that is a code name, we don't know his real name. Then the other one we last saw him in exile. He did not work with us for a long time, he only came to help us for this particular attack.

CHAIRPERSON: Do you know what his name was?

MR PULE: His code name is Mandla.

MS VILAKAZI: At the time when you were around the Zeerust, Braklaagte area, where were you accommodated?

MR PULE: I did not understand the question, can you repeat that?

CHAIRPERSON: The question was when you were in the Braklaagte area, in other words on the night of the 30th of July, where were you accommodated?

MR PULE: We were at Gobani, which is near Motswedi.

MS VILAKAZI: From your testimony it appears that you were not involved in the hijacking of the car, is that correct?

MR PULE: That is correct.

CHAIRPERSON: Sorry Ms Vilakazi, if I might just briefly intervene. Did you know or did you learn from the people who were involved in the hijacking, whether anyone was killed or injured at that incident?

MR PULE: I know that during the hijack there was no one who was injured, he was intimidated, then he allowed that the car would be taken.

MS VILAKAZI: Do you perhaps have information as to how many people were involved in the hijacking? And if so, who are they?

MR PULE: I sent my two co-applicants, that is Mr Sibanyoni, Mkhwanazi and Mandla who is not here, whom I last saw in exile in Botswana.

MS VILAKAZI: After the attack on the van that you attacked, did you leave anything on that van, in the form of arms or ammunition?

CHAIRPERSON: Do you mean in the vehicle they were driving in?

MS VILAKAZI: Yes, no, the vehicle that they had attacked.

CHAIRPERSON: Did they leave any weapons there? The question was did you leave any weapon at the place where you carried out the attack?

MR PULE: We did not leave anything at that police van, we were attacking them. What happened is that in any situation of war, anything can happen.

At times you try to shoot and the firearm would jam. Our driver then had his firearm next to the door, so that when he opens the door, he would be able to take his firearm. He disembarked, then he was instructed to go back and to stay in the car, so that after we finished attacking, when he came back to the car, he was not aware that his firearm fell on the ground. He realised later, after we had left the scene, that he has left his firearm on the scene. It was not possible to go back to go and fetch the firearm.

CHAIRPERSON: That was an AK47?

MR PULE: That is correct Chairperson, it is an AK47 and a Bazooka's rocket.

MS VILAKAZI: Any handgrenades that were left there? Were there any handgrenades left there?

MR PULE: I don't remember as to whether anyone of us left any handgrenade there, but it is possible that they were left behind. I remember about the firearm and the Bazooka rocket.

MS VILAKAZI: That will be all, Chairperson.

CHAIRPERSON: Thank you Ms Vilakazi. Mr Mapoma, do you have any questions you would like to put?

MR MAPOMA: None Chairperson, thank you.

NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Do you have any re-examination Mr Nyawuza?

MR NYAWUZA: No re-examination, that would be the application.

CHAIRPERSON: I will just ask Judge Motata if he has any questions?

JUDGE MOTATA: I've got none, Chairperson.

CHAIRPERSON: Mr Sandi, any questions?

ADV SANDI: No questions, thank you Chairperson.

CHAIRPERSON: Just one question from myself Mr Pule, was this Special Ops operation?

MR PULE: No.

CHAIRPERSON: When you completed the operation and went back to Botswana, did you report it to the person who you usually reported to there?

MR PULE: That is correct Chairperson.

CHAIRPERSON: Who did you report to in Botswana?

MR PULE: When we arrived in Botswana, our Commander there was Aboobaker Ismail. But at that particular moment, when we returned to Botswana, he was not there. We reported, we informed him later.

CHAIRPERSON: Thank you. Any questions arising, Mr Nyawuza?

MR NYAWUZA: No Chairperson, thank you.

CHAIRPERSON: Ms Vilakazi?

MS VILAKAZI: No questions, thank you.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: No questions, Chairperson.

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

CHAIRPERSON: Mr Nyawuza?

MR NYAWUZA: Chairperson and Honourable Committee Members, I wish to lead the testimony of Mr Aaron Mkhwanazi at this stage.

AARON MKHWANAZI: (sworn states)

CHAIRPERSON: Thank you. Mr Nyawuza?

EXAMINATION BY MR NYAWUZA: Mr Chairman and Honourable Committee Members, Mr Mkhwanazi will lead evidence in Zulu.

CHAIRPERSON: Yes Mr Nyawuza.

MR NYAWUZA: Mr Mkhwanazi, we are here today on the incident that happened on the 31st of July 1990. We would wish to know your participation in the said incident.

Briefly tell us how you got involved in this incident.

MR MKHWANAZI: I was given an order by the MK to go and conduct a reconnaissance in preparation for the MK soldiers who were to follow, and to organise accommodation and everything for them.

That I did from 1989. I was up and down, preparing and engaging in political education and the church, because the Boers were saying so many things that the MK was a communist organisation, non-believers' organisation and they were telling people lies, so that there came a time when we had to rise and identify ourselves. We were oppressed, we were praying, but still there was no freedom.

In church we were killed, in funerals we were killed and there was nowhere a black person was liberated.

MR NYAWUZA: If I were to interject there. How did you happen to be in the MK? Did you join the MK at any stage or what, how did you get involved in the ANC?

MR MKHWANAZI: I went out to join the ANC, the political party, in 1980 and upon arrival you are asked as to whether you want to go to school or whether you want to go to the army. I said I wanted to join the army, because I wanted to liberate my nation so that we were sent to Angola. We were actually first sent to Zambia and then Angola, after which I was sent to GDR in Germany, to specialise in my training.

That was after the basic training in Angola, which we underwent under the instructions of the Germans and the Cubans.

MR NYAWUZA: Mr Mkhwanazi, we now come to your reconnaissance, as you have already stated that between the period 1989 and 1990, you were sent by MK to come and do a reconnaissance. Where in particular were you given instructions to do a reconnaissance, the area that you were given to do a reconnaissance?

MR MKHWANAZI: We were concentrating on Mangope's area, because when we got the news on how he was oppressing people, we knew that he was a sell-out.

MR NYAWUZA: Mr Mkhwanazi, to come back to that, Mr Mangope's area is a very large area, there is Mafikeng, there was Mavopane at that time, there was Lorutsi, what specific area were you sent to do this reconnaissance?

MR MKHWANAZI: The whole of Lefrutsi, from Gopane right up to Lekobong, Lekobong, Lebathle and all such areas.

MR NYAWUZA: Do these areas also include Braklaagte?

MR MKHWANAZI: Yes, that is correct.

MR NYAWUZA: So you did your reconnaissance, Mr Mkhwanazi. Who in particular gave you instructions to do the reconnaissance on Braklaagte?

MR MKHWANAZI: Commander Pule had already explained, he instructed us to carry out the reconnaissance, myself with my colleague.

MR NYAWUZA: And after you had done the reconnaissance, you reported back to Mr Pule and what happened? Let's come to the 31st of July 1990, what happened on that particular day?

MR MKHWANAZI: I remained behind because I was part of the community who was continuing with my preparations. I would accommodate some of them in Gopane, in Motswedi, many of the areas, we were doing this as of strategic importance, so that we should not be wiped out all at one place.

The 31st was so important because that was the formation of the SACP, the South African Communist Party. That was the commemoration day, we had to really attack the Boers. This was a reminder to them, they had to be reminded that we were not scared of them.

MR NYAWUZA: What happened on that particular day?

MR MKHWANAZI: As Pule had already explained, that the one person who was supposed to bring the vehicle that had been organised by comrade Tait, delayed, and I decided to say that we cannot let this mission fail, I know this place better than you do, "let's go out there and try and get hold of a vehicle, we will definitely get hold of a vehicle." Even if we were not in a position to hire one ...

MR NYAWUZA: How many were you, Mr Mkhwanazi when you went out to look for this motor vehicle?

MR MKHWANAZI: There were three of us.

MR NYAWUZA: And how many of you were to undertake this operation, not the hijacking, the attack on this army base?

CHAIRPERSON: Perhaps if we can just hear a little bit about the hijacking, just to, because we haven't heard about that.

The three people who went out to get the vehicle, was that yourself, Mr Sibanyoni and Mandla?

MR MKHWANAZI: I cannot recall whether it was Mandla or Mkululi, it looks like it was Mkululi, not Mandla.

CHAIRPERSON: Did the three of you go?

MR MKHWANAZI: Yes.

CHAIRPERSON: Could you just briefly tell us how you got the vehicle?

MR MKHWANAZI: We were standing on the side of the road, trying to hail a taxi down. There were no taxi's, but fortunately a white Corolla came and we hailed it down, and it came to a halt. You see, I used to speak Setswana better than these other men, and I spoke Setswana to this gentleman, requesting a lift because we were on our way to Gopane. He was convinced that I knew what I was talking about, and he trusted us, and I occupied the front seat of the car, and the others went to the back of the vehicle.

Firearms were produced and we did this to scare him, we just wanted the vehicle, and as we were approaching the township, I told him that "just drop us here", and I realised that he was not doing what we had instructed him to do. I produced my firearm, pointed it at him, and he went out of the vehicle. I drove the vehicle back to where we had left the others, from whence we drove to Braklaagte to attack our target.

MR NYAWUZA: What happened during the attack, what is it that you did take to attack this place?

MR MKHWANAZI: What Pule has said, is what I confirm. I would like to add that around five, there were roadblocks that were conducted and patrols that were conducted around five o'clock, but then we decided that around ten o'clock, they would still be fresh, and if you want to go and attack your enemy, you should get him when he is tired and dozing off.

We were not like that, we used to work 24 hours, because we were not expecting any wages, come raid or shine, whether the place was guarded or not, we would attack.

MR NYAWUZA: So you attacked the place, how did you, what led to you getting involved in the shooting, can you briefly tell us what happened? After you had got the motor vehicle, collected Mr Pule and Mandla or Mkululi, in that you are not too sure as to who else was with you when you hijacked the motor vehicle?

MR MKHWANAZI: We, I indicated at some spot that a roadblock had been conducted here, and we came across a horse and trailer that was camouflaged and there were police, they were on the roof, and apparently they were communicating with the ones in the camp, suspecting that the vehicle was a hijacked vehicle.

On our way we came across two vans as Pule had indicated. We stopped about 400 meters away so that the RG57 Bazooka should be effective, when we opened fire, and the handgrenades and other firearms would follow.

We actually wanted to destroy the whole camp, to teach them a lesson that they should never, ever dare put up a camp in the midst of the people, and we wanted to teach them how a war is conducted.

There were other young boys whom they used to fight with, they were their ones who were trained here in the township. As a result of the experience with the two vans, we were somehow disturbed. The other one went into the yard for a U-turn and came back. We were preparing for an ambush, so that they should not shoot at us, all at once, unawares.

We started opening our AK47 fire, that was for the first time the Mangope regime had an experience of an AK47. It also used to resonate right down in Pretoria and they would not know how we came in, which route we used, and they would quarrel with Mangope over our entry point.

MR NYAWUZA: You shot at this van, how were you able to identify that these are your targets?

MR MKHWANAZI: As MK soldiers were politically trained, we knew who our targets were and who our enemies were.

We would not go out and shoot wrong people, or people who were not targets.

We knew that they were looking for the so-called terrorists, following the Boers' propaganda. We then knew that the soldiers, the police and the informer, were the targets, because they were selling us out, and they were selling themselves out too.

JUDGE MOTATA: May I just ask something, could you see the occupants of that van which you attacked, what colour they were?

MR MKHWANAZI: We were not able to make that out, it was at night and dark. It was a police van that we saw, and these people too, did not know whether we were black or not, they were not in a position to say.

MR NYAWUZA: Mr Mkhwanazi, did you, when you attacked this van, were you able to say "these are Mangope police officers or they are Mangope soldiers", did, what made you attack them, were you attacking them because they were the SANDF or police officers of Mangope's soldiers, or were you just attacking because they were part and parcel of that?

MR MKHWANAZI: As we have explained earlier on that our war was directed to the SADF and the SAP, but because Mangope was allowing the Boers to come into our midst, to use our people, so that these people became the barriers, so that we were forced that we should instil fear among them, frighten them and yes, sometimes it occurred to us that these people might be black. You see, they wanted to bring their children up, they wanted to take care of their families, so to us it didn't matter whether they were Mangope's or not.

MR NYAWUZA: So, according to your knowledge, Mr Mkhwanazi, when these people were attacked, how many were injured, because I see in your application form, you are applying for the killing of about eight to nine people?

MR MKHWANAZI: We did not know how many died and how many got injured, but the van was the small one that could take eight police at the back and for four inside. There were people in front of the van, and in the back of the van, so that we did not have time to count the number of people.

CHAIRPERSON: Do you disagree with Mr Pule's evidence that he later established that four people were killed and two injured? That is what Mr Pule testified, that is the information they finally got after it was sifted through, everything else, that four were killed and two were injured?

MR MKHWANAZI: Yes, I was responding to my application, pertaining to my application. I said nine in my application, but we got information the following day in the morning, on the radio and in the newspapers, four were mentioned to have died and two injured.

We were said to have returned safely back to our base in Botswana.

MR NYAWUZA: Mr Mkhwanazi, in what capacity were you acting and were you a Unit Commander or you were a footsoldier?

MR MKHWANAZI: Within Umkhonto weSizwe, we were all trained in Commanders' courses and Commissars' courses. All of us were trained that we are all Commanders, we can take decisions and be accountable later. That was the training that we had received, trained, so that we are able to take responsibility if the other one is shot. As a Commander, the Commander should take responsibility immediately and if that one is shot or killed, the other one should resume responsibility.

MR NYAWUZA: On this particular incident, who was your leader?

MR MKHWANAZI: It was Pule, because we had agreed that he was going to assume the leadership responsibility.

MR NYAWUZA: Mr Mkhwanazi, do you regard this incident as politically motivated?

MR MKHWANAZI: Yes, it was a politically motivated incident because Mangope was towing the line of the Boers, and he was unfortunately using people, his children were not doing that. They were at school, and the children of the oppressed, were the ones used. The children of the de Klerk's and the Botha's were not in the frontline, they were at school. We were suffering, oppressed, and we had to take up arms against the ...(indistinct) army.

MR NYAWUZA: Is that your testimony, Mr Mkhwanazi, are you through with your testimony?

MR MKHWANAZI: I think I have wrapped up everything in my statement.

MR NYAWUZA: Thank you Mr Chairperson.

CHAIRPERSON: Thank you. Ms Vilakazi, have you got any questions you would like to put?

CROSS-EXAMINATION BY MS VILAKAZI: Thank you Mr Chairperson, I have some questions to ask the applicant.

Mr Mkhwanazi, this Mkululi that you have been referring to, do you know his whereabouts at the moment, whether he is still alive?

MR MKHWANAZI: I saw him for the last time in the process of repatriation whilst we were in Lusaka. I think I came across him once at Shell House, it could have been in 1991. As to what became of him, I really cannot say.

MS VILAKAZI: So you wouldn't know if he has made any application in connection with this incident, would you?

MR MKHWANAZI: That is correct.

MS VILAKAZI: The car that you hijacked on the 31st, who drove the car from the spot where you hijacked it?

MR MKHWANAZI: I drove the vehicle.

MS VILAKAZI: Did you, were you the only person who drove the car, or did anyone else drive the car up to the point where you abandoned it?

MR MKHWANAZI: I drove it from that point where we hijacked it, up to the point where we picked up Pule, where it was driven by Tait to the point where we were going to launch the attack.

Because you see, I was going to use the Bazooka.

MS VILAKAZI: But as you were driving the car, was the car driven, at any point was it driven through the bushes or was it driven in demarcated roads only?

MR MKHWANAZI: It was used on the tar road from the point where we hijacked it, and we used the dust road from the safety house, the one bad route was on our way to Lebathle right to ...(indistinct), which was the nearest and safest route.

MS VILAKAZI: Did you have a chance to inspect the condition of the car before you abandoned it?

MR MKHWANAZI: We did. It had 20 litres of petrol behind and some few documents inside, apparently the person who was using the vehicle, was working in a furniture shop. There were wallets and everything, none of which we took.

We did say to the owner of the vehicle, that not to worry, he would get his vehicle back, we were just going to use it.

CHAIRPERSON: Was the vehicle damaged in any way, dents or scratches?

MR MKHWANAZI: We left the vehicle as it was.

MS VILAKAZI: Well, my instructions are that the paintwork on the body of the car, was scratched and that the sump underneath the car was also damaged.

Are you in a position to dispute that?

MR MKHWANAZI: As I have indicated, on our way to the exit point, we were retreating and there was no way of nursing the vehicle, to avoid being pursued, even if it drove through very pad humps and potholes and stones, and scratches from the tree and the fences. Really that was possible.

MS VILAKAZI: No further questions.

CHAIRPERSON: Thank you Ms Vilakazi. Mr Mapoma, any questions?

MR MAPOMA: None, Chairperson, thank you.

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

MR NYAWUZA: No re-examination, Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions?

JUDGE MOTATA: Just one Chairperson. This army base or camp that you were going to, where was it situated at Braklaagte?

CHAIRPERSON: We are not getting any interpretation through.

MR MKHWANAZI: I am saying the camp was right in the centre of the village, but it was strategically next to the Chief, which Chief was supposed to be imposed upon the people by Mangope.

These soldiers or the camp, was looking after the Chieftaincy indirectly.

JUDGE MOTATA: Thank you Chairperson, that is all.

CHAIRPERSON: Any questions, Mr Sandi?

ADV SANDI: No thank you Chair, no questions.

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

CHAIRPERSON: Mr Nyawuza?

MR NYAWUZA: Thank you Chair, and Honourable Committee Members, I wish to at this stage call Mr George Sibanyoni.

--------------------------------------------------------------------------CHAIRPERSON: Mr Sibanyoni, can you just give your full names, please?

MR SIBANYONI: George Koloi Sibanyoni.

CHAIRPERSON: What was your middle name?

MR SIBANYONI: Koloi.

GEORGE KOLOI SIBANYONI: (sworn states)

CHAIRPERSON: Thank you. Mr Nyawuza?

EXAMINATION BY MR NYAWUZA: Thank you Mr Chairman. Mr Sibanyoni, two of your comrades have already testified relating to an incident that happened on the 31st of July 1990.

Briefly tell us your participation in this particular incident.

MR SIBANYONI: I will start off by thanking you for the opportunity given to me. I agree with all that they have said, and before I continue with my evidence, I would like to say that I joined the ANC in 1987 and I underwent training in Zambia. From Zambia I went to Botswana, because we had been given instructions and our Commander was Pule, as he has already indicated. In July we had been assigned to conduct a reconnaissance within the country.

We came into the country from Botswana, as we were reconnoitring the place, the one place that had been identified was Braklaagte where we conducted our reconnaissance.

We learnt that the police were occupying that place. It has been indicated earlier that there was no difference between the police and the soldiers. We monitored their movements so that on the 30th of July in the evening, we left because we did not have a vehicle as they indicated. We went out in search of a car, and we secured a Corolla which he drove, and when we came out, I was driving the vehicle, because I had reconnoitred the area properly and I drove them to the point of attack.

On our way there, we came across the truck to which he referred, it was a military or police truck. It looked like the police truck, the ones used by the police to patrol at night.

We drove passed the truck and went straight to the target, and at the target point, there were leaving in the base, and we came across them as they were leaving the base. We stopped for a while, so that they could drive past us. It had already been indicated that we stopped there and the other vehicle came and stopped next to us, and we did not waste time, and started opening fire.

After that, we withdrew. The shell and the firearm that remained behind, has been mentioned here. We drove back to our exit point and the route on our way back to the exit point, was very bad and very bumpy. But we managed to get hold, or to get to the tarred road, right up to the point where we left the vehicle, near the border. We checked everything and made sure that we were leaving behind everything that had to be left behind. We crossed back into Botswana.

I agree with these people completely.

MR NYAWUZA: Mr Sibanyoni, would you regard the incident of the 31st of July 1990, as a politically motivated attack on the members of the police?

MR SIBANYONI: Yes, I would say that the incident was political because if you look at us, as we are sitting here today, and consider out background, you will know and understand how the Bantustans operated, we were, we are all victims of apartheid as we are here.

So that which the Bantustans did, was against the will of the people. We as members of Umkhonto weSizwe were engaged in educating people about these things, and we attacked where we could.

MR NYAWUZA: Is that your evidence Mr Sibanyoni?

MR SIBANYONI: That is correct.

NO FURTHER QUESTIONS BY MR NYAWUZA

CHAIRPERSON: Thank you Mr Sibanyoni. Ms Vilakazi, do you have any questions that you would like to put to Mr Sibanyoni?

CROSS-EXAMINATION BY MS VILAKAZI: Just one question, thank you Mr Chairperson. The same question that I asked to Mr Mkhwanazi, do you know anything about the whereabouts of Mkululi, what his full names are and where he is now?

MR SIBANYONI: I don't know where he is. If I knew where he is, I would have informed him about this whole thing, the applications.

MS VILAKAZI: No further question, thank you.

CHAIRPERSON: Thank you. Mr Mapoma?

MR MAPOMA: Thank you Chairperson, I have no questions.

CHAIRPERSON: I take it you've got no re-examination?

MR NYAWUZA: Yes, that is so, Chairperson.

CHAIRPERSON: Judge Motata, any questions?

JUDGE MOTATA: None, Chairperson.

CHAIRPERSON: Mr Sandi?

ADV SANDI: Thank you, no questions.

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

CHAIRPERSON: Mr Nyawuza?

MR NYAWUZA: Thank you Chairperson and Honourable Committee Members.

CHAIRPERSON: Will you be leading any further evidence?

MR NYAWUZA: No, we are not going to lead any further evidence. That is the testimony of all the applicants, thank you.

CHAIRPERSON: Thank you. Ms Vilakazi?

MS VILAKAZI: Thank you Chairperson. May I put it on record that the families that I am representing, that of Jukani, the family of Lesabani, the family of Modise and the family of Mothlabane, those are families of the police officers who died during the attack.

The other two police officers, according to the record, they were not able to be traced, but I have been given information by one of the next-of-kin that one of the police officers can be traced through the one who survived, one of the two who survived, can be traced through a Chaplain Mokoka who was in the Bophuthatswana Police College at that time.

CHAIRPERSON: Can you give that name please?

MS VILAKAZI: Chaplain Mokoka.

CHAIRPERSON: Do you know which one can be traced, is it Cons Mutalezi or Cons Lethabele?

MS VILAKAZI: I do not have information as to which of the two.

CHAIRPERSON: Yes, which of the two?

MS VILAKAZI: Yes. I am also representing Mr Mokgatlha.

JUDGE MOTATA: The person from whom the vehicle was hijacked?

MS VILAKAZI: That is correct. I would like to put it on record that all the persons that I am representing, have indicated that they are not opposed to the applications, only that they want the whole truth to be told, so that they can know what happened to their next-of-kin.

I would then call Mr Mokgatlha, just to give the Committee, to make a submission with regard to the damage that occurred onto the car.

CHAIRPERSON: He is not giving evidence as such, he is just wanting to make an unsworn statement which won't be subject to cross-examination or do you want him to give evidence? That is up to him?

MS VILAKAZI: May I point out Honourable Chairperson, that Mr Mokgatlha had made a statement in 1992 to the police, and the statement is attached to the bundle on page 14 and 15.

CHAIRPERSON: Yes.

MS VILAKAZI: That would constitute his evidence.

CHAIRPERSON: So he just wants to give an unsworn statement? Does he want to actually say it?

MS VILAKAZI: He would be giving an unsworn statement.

CHAIRPERSON: Yes. Mr Mokgatlha, are your names Hendrik Pelotane Mokgatlha?

MR MOKGATLHA: Hendrik Pelotane Mokgatlha.

CHAIRPERSON: Mr Mokgatlha, do you just want to make a statement here, you don't want to give evidence as such?

MR MOKGATLHA: The statement which I made in 1992, it is the same as it has been testified by the applicants. The only point which I just wanted to insert was that when they, I found my car, I retrieved my car, it was damaged, then I spent an amount of R5 000-00 to return it to the condition which I received it from the owner. On that particular day I spent that money to put the car in a good condition, but all that appears there is in accordance with what the applicants have testified.

CHAIRPERSON: Yes, thank you. And the damage to your vehicle, is that what Ms Vilakazi damaged, the scraping on the paintwork and the damage to the sump?

MR MOKGATLHA: That is correct Chairperson, the sump was damaged and the gears were not in good order, and the paint was removed, then I spent an amount of R5 00-000 on the damage.

CHAIRPERSON: Thank you. Is there anything further Ms Vilakazi?

MS VILAKAZI: That will be all with regard to him.

CHAIRPERSON: Thank you Mr Mokgatlha. Any other persons, Ms Vilakazi?

MS VILAKAZI: Honourable Chairperson, I will just call each member from each family.

CHAIRPERSON: One from each?

MS VILAKAZI: Yes. I will call now Mrs Mabot Tsukane.

CHAIRPERSON: Is this also just to make statements, Ms Vilakazi, they are not going to testify as to the merits of the matter or anything?

MS VILAKAZI: No, no, they do not have any information with regard to the merits, that is just statements.

CHAIRPERSON: So they just want to make statements, not subject to cross-examination?

MS VILAKAZI: No, it is statements for purposes of Section 22, to be declared as victims.

CHAIRPERSON: Well, it is not necessary for them to do that, as long as we get their information. If it could be supplied to Mr Mapoma.

We, in the event of amnesty being granted, are obliged to refer people who are in our opinion, are victims, to the Committee on Reparation and Rehabilitation. If amnesty is granted, then quite clearly the immediate family of the deceased persons, the persons who were killed in the attack, are clearly victims, as would be Mr Mokgatlha.

MS VILAKAZI: As it pleases the Honourable Committee, but there is one request from the witness that I have just called now, Mrs Mabot Tsukane. She has a request to make to the TRC to intervene, perhaps she could put it on record.

CHAIRPERSON: Yes. Sorry, if we could have her full names please? Mrs Tsukane, what are your full names please?

MS TSUKANE: My names are Mabot Francina Tsukane.

CHAIRPERSON: Yes, Ms Vilakazi.

MS VILAKAZI: Mrs Tsukane, you have indicated that you want to make a special request to the TRC, can you explain what your request is with regard to the incident involving the death of your husband?

MS TSUKANE REQUESTS COMMITTEE: My request which I would like to make to the Truth Commission is that since as from 1990 after the death of my husband, I and my in-laws had a dispute, my in-laws thought that I am responsible for my husband's death and my son is now 13 years old, and we have no contact, even after I received a notification, I went to them to tell them to accompany me, to come here, they did not want to. I am requesting the Truth Commission, I should reconcile to my in-laws because I am not involved even a bit about the death of my husband. That is my request Chairperson, thank you.

CHAIRPERSON: Ms Tsukane, it is quite clear from the evidence that we have heard from Messrs Pule, Sibanyoni and Mkhwanazi that you had nothing whatsoever to do with the unfortunate death of your husband and his colleagues that night.

Your remarks, we will take note, they have been recorded, and I can forward it on to the Rehabilitation Committee, which is another Committee of the TRC and draw it to their attention, and hopefully they will be able to do something, although I don't exactly know what myself personally, but we will forward your concern to the relevant Committee and hope that you can be reconciled with your in-laws. Even if necessary, if they can read the transcript of the evidence of these gentlemen here, just to prove to them, beyond all doubt that you were not at all responsible in any way for the death of your late husband.

MS VILAKAZI: That will be all Chairperson.

CHAIRPERSON: Thank you Ms Vilakazi. Submissions?

MR NYAWUZA IN ARGUMENT: Thank you Chairperson and Honourable Committee Members, the applicants all submit that the incident that occurred on the 31st of July 1990, it is common cause ...

CHAIRPERSON: Yes, I think it is quite clear that they were operating as MK members, on an operation.

MR NYAWUZA: So besides that Chairperson, I don't have any other submissions. I leave it in the hands of the Committee.

CHAIRPERSON: Ms Vilakazi?

MS VILAKAZI: No submissions, I will leave it to the Panel.

CHAIRPERSON: Thank you.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Nothing Chairperson.

CHAIRPERSON: Yes, thank you. We will reserve our decision in the matter. Not only because it is our policy to hand down written decisions, but also to address the questions that were raised at the beginning of this application, and Mr Mapoma, I am sure, will keep in touch with you Mr Nyawuza who in turn will keep in touch with the other gentlemen that you are representing.

That then brings us to the end of this hearing. Thank you for your assistance in the matter, Mr Nyawuza, Ms Vilakazi, thank you, and Mr Mapoma, thank you.

We will reserve our decision in this matter. Mr Mapoma, is that the roll for today?

MR MAPOMA: That is the roll for today Chairperson.

CHAIRPERSON: Tomorrow morning, half past nine?

MR MAPOMA: Yes Chairperson, half past nine.

CHAIRPERSON: Yes, we will now adjourn for the day and we will continue sitting tomorrow morning, we will be hearing other applications and we will hopefully start at half past nine in the morning, tomorrow morning with a fresh application. Thank you very much.