--------------------------------------------------------------------------CHAIRPERSON: Before we start the hearing, I think we’d better put ourselves on record as we have been asked to do on many occasions by those recording it. The Committee consists of myself, Judge Wilson, Judge de Jager and Adv Sigodi. Would you please ...

MR ROSSOUW: Thank you Mr Chairman. My name is Fanie Rossouw from the firm Rooth and Wessels attorneys in Pretoria and I represent the applicant, Mr Chris Mosiane.

MR PANDAY: Thank you Mr Chairman. Mr Chairman, I appear on behalf of the victims in this matter, it's Mr Panday, initial S, that is the Nzane family.

MS MTANGA: Chairperson, I am Lulama Mtanga the Evidence Leader. Thank you.

CHAIRPERSON: Right what matter are we starting with today?

MS MTANGA: Chairperson, we are starting with the application of Christopher Gabuklelwe Mosiane, that's reference number AM3768/96.

MR ROSSOUW: Thank you Mr Chairman. The applicant is ready to testify, Mr Chairman, he however prefers to give his testimony in Tswana.

CHAIRPERSON: ...(indistinct - mike not on)

MR ROSSOUW: I believe there's an interpreter.

GABUKLELWE CHRISTOPHER MOSIANE: (sworn states)

MR ROSSOUW: Thank you Mr Chairman.

EXAMINATION BY MR ROSSOUW: Mr Mosiane you are an applicant in this incident, applying for amnesty in respect of two petrol bomb attacks that took place in the Durban area. Do you have a copy of your amnesty application before you?

MR MOSIANE: I do Chairperson.

MR ROSSOUW: Can I just, for the same of formality, as you to start on page 1, is that your handwriting on the formal application?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: And do you confirm the content of that application and also your signature on page 7?

MR MOSIANE: I do, Chairperson.

MR ROSSOUW: Then Mr Mosiane ...(intervention)

CHAIRPERSON: If we are being formal, has the signature been attested?

MR ROSSOUW: Mr Chairman, my apologies, I didn't even pick that up and it would seem that although there's a stamp from the Department of Justice, there's no signature from a Commissioner of Oaths. Mr Chairman, the applicant is under oath today and he has confirmed that it was his handwriting and that he completed the application.

CHAIRPERSON: Well, do you confirm the truth of what is contained in the application?

MR MOSIANE: I do, Chairperson.

MR ROSSOUW: Thank you Mr Chairman. Mr Mosiane then I want you to skip to page 17, all the way through to page 34. Is this a hand-written statement in your handwriting?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: And is it also your signature on page 34?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: And is it correct that this was the annexure to your amnesty application, the part that you've now confirmed the truth of?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: As far as this, the details are concerned, do you also confirm the truth of this statement, which is an annexure to your amnesty application?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Thank you. Mr Chairman, you would have noted that there is just a typed version as well as the hand-written portion, which I do not intend to deal with. Mr Mosiane, then you amnesty application was, merely for the sake of formality also supplemented. I want you to turn to page 47, specifically dealing with this incident, the two incidents that you are applying for amnesty for today. Then I ask you, can you just tell the Committee, in the mid eighties where were you working and in what capacity?

MR MOSIANE: Chairperson at that time I was an askari. I was under the control of the South African Police Services, under C1 Unit, which was in Head Quarters.

MR ROSSOUW: And you were stationed at Vlakplaas, is that correct?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: In 1981 when you were captured in Swaziland, who was the Commander of Vlakplaas at that stage?

MR MOSIANE: I'm not sure Chairperson who was the Commander.

MR ROSSOUW: Fair enough. And Mr Mosiane during this time when the attacks took place in the Durban area, were you working here and what were your orders? What were you doing in the Durban area?

MR MOSIANE: During this incident, Chairperson, I was under the command of Maj Andy Taylor in the Durban area.

MR ROSSOUW: When was this?

MR MOSIANE: ...(indistinct) from Pretoria to help the Special Branch in Durban.

JUDGE DE JAGER: Ja, but when was it, 1900 and what?

MR MOSIANE: It was during the period of this incident which I'm applying for amnesty for.

JUDGE DE JAGER: Yes, that's what I want to find out. When were these incidents? Was it in the year 2000, 1995, when?

MR MOSIANE: It was somewhere in 1985 or 1986.

MR ROSSOUW: Mr Mosiane, you've now said that you were under the command of Col Andy Taylor. Were you in a specific unit from Vlakplaas that operated in this area?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: And who was your commanding officer in that unit from Vlakplaas?

MR MOSIANE: It was Capt Mosse, Chairperson.

MR ROSSOUW: Is it correct to state that when you, as a unit from Vlakplaas, operated in another area of the Security Branch, that you took orders from that Security Branch?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Can you just tell the Committee how did work when you came to this area? Where did you go, where did you get your instructions from?

MR MOSIANE: When we arrived here in Durban, we reported to Maj Andy Taylor. We were supposed to patrol the various areas or townships around Durban, for example Umhlazi and other neighbouring townships. The main intention was that it is possible that we will be able to observe and trace other MK members around those areas. Therefore we would arrest those people and bring them to CR Swart.

MR ROSSOUW: Now, Mr Mosiane, did you receive instructions to attack these two specific houses?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Who gave you those specific instructions?

MR MOSIANE: That is Maj Andy Taylor, Chairperson.

MR ROSSOUW: Now can you tell the Committee what planning was done and preparation for the attacks?

MR MOSIANE: The planning was that Andy Taylor arranged that petrol bombs should be made which were going to be used in these mentioned houses.

CHAIRPERSON: Do you deal with this at page 48 of the papers?

MR MOSIANE: I do see that Chairperson. Maj Andy Taylor made us aware that we should use rubber gloves so that we should not leave our fingerprints on the petrol bombs which we were going to use in those two operations. It happened in that way. He gave us money to buy those hand gloves then later we made those petrol bombs. After that, in the evening, we were taken and showed those targets which we were supposed to attack. The first target belonged to Griffiths Mxenge. We attacked that house. After that we rushed to the second house which I learned that it belong to a certain person who was a member of the Trade Union. We arrived at that particular house and attacked. After the attack we ran away and returned to C R Swart where we were accommodated. Then we gave a full report to Maj Andy Taylor.

MR ROSSOUW: Mr Mosiane and can you tell the Committee who accompanied you on these two attacks?

MR MOSIANE: Because we did not know those areas, we were directed by members of the Special Branch under the command of Andy Taylor.

ADV SIGODI: But who took you there?

MR MOSIANE: We were accompanied by Spyker Myeza, he was a Warrant Officer then and Mike Lembede, he was a Warrant Officer then at Modabasi and also he was a Warrant Officer then. Those are the people who were working with Andy Taylor, who accompanied us during these operations.

CHAIRPERSON: Mr Mosiane, when you say that they accompanied you, who were the other members of the Vlakplaas unit who went with you?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Sorry, who were they? Can you name them? Can you give the Committee the particulars of who were the other members of Vlakplaas who went with you?

MR MOSIANE: It was Nicholas Dube, Basil Moshengo Mavuso, we were three and other three members from the local Special Branch.

MR ROSSOUW: Mr Mosiane, let's first deal with the attack on the Mxenge house. Can you describe to the Committee what was the set-up there and how did you carry out that attack? Can you give that description to the Committee?

MR MOSIANE: The house was situated at a corner in Umhlazi. It had a wall fence. We went to the back part of the house. I'm able to recall that there was a wall at the back and its height is at the chest level. During that night we had petrol bombs. It was Basil Moshengo Mavuso, Nicholas Dube, Modabasi and myself. I mean those who had petrol bombs on there person. Spyker Myeza and Mike Lembede, they were making observations whilst we were attacking the house. The four of us laid the petrol bombs and threw them at the house. After we threw the petrol bombs, we left and entered the car and went to the second house.

JUDGE DE JAGER: Now let's go back to the bombs being thrown. Were they thrown into the house? Was there an open window? Did you break a window? What did you do? Where did you drop the bombs?

MR MOSIANE: Chairperson, we did not enter the yard. The wall fence I've mentioned, if you are next to that fence, you are able to see the back door and the window. We threw the petrol bombs whilst we were outside the yard. We were direction those petrol bombs to the back door and the back window.

MR ROSSOUW: Mr Mosiane, can you give the Committee an indication as to what time of the night this attack took place?

MR MOSIANE: Chairperson, I did not have a watch, but my estimation would be around 11 o'clock to 12 o'clock at night.

MR ROSSOUW: Were there lights on inside the house?

MR MOSIANE: No, Chairperson, I did not see lights.

MR MOSIANE: Did you watch to see if the house caught fire and did you watch the flames go up?

MR MOSIANE: After the attack, we did not stay for a while, we just left immediately after we threw the petrol bombs.

MR ROSSOUW: Can you say that the petrol bombs actually went into the house through a window?

MR MOSIANE: It was possible that some of them were thrown inside the house through the window. If I remember well there's one which exploded.

MR ROSSOUW: Right Mr Mosiane, you've left - you said that you went to the second target which was shown to you. Can you just describe to the Committee what took place there? How did the attack - how was it carried out?

JUDGE DE JAGER: Mr Rossouw, before we proceed to the second house, we've got evidence now of a petrol bomb attack on a house. Were they aware that there were any occupants in the house? Did they foresee injury to persons or did they merely attack a house? Should we give amnesty, if we should decide to give amnesty, for damage to property or for attempted murder? What's the position, what is he asking for?

MR ROSSOUW: Mr Chairman, I thought I'd argue that on probabilities, but let me deal with that in questions.

JUDGE DE JAGER: Ja, if there were no persons in there, you can't argue on probabilities unless you lay the foundations that there were no people present, or there were people present at least.

MR ROSSOUW: I'll do my best to clear that up. Mr Mosiane, were you informed by either Mr Taylor or the members of the Security Branch, the Durban Security Branch, who the occupants of that house were, Mr Mxenge’s house?

MR MOSIANE: It was never explained to us who were the occupants of the house.

MR ROSSOUW: Were you told that there were actually occupants of the house, that there were people staying there?

MR MOSIANE: No, Chairperson. The explanation I had is that this house was used for meetings by activists who were active then.

MR ROSSOUW: Mr Mosiane in the light that you knew that meetings took place there, did you think that there might be people inside the house when you attacked it?

MR MOSIANE: At the time of the attack, it did not come to my mind that there would be occupants in that house.

ADV SIGODI: Why?

MR MOSIANE: Because when we arrived there it was dark, there were no lights.

ADV SIGODI: But it was in the middle of the night.

MR MOSIANE: It is true Chairperson, but it was in the middle of the night.

ADV SIGODI: So despite the fact that it was in the middle of the night, you didn't expect to find any people in the house, in your mind, when you went there. You were not expecting to find the house with people?

MR MOSIANE: Chairperson, at that time I did not think that there would be people, or there would not be people.

ADV SIGODI: And when did you learn that the house that you had attacked belonged to Mr Mxenge?

MR MOSIANE: I knew before the attack.

ADV SIGODI: Did you know Mr Mxenge before the attack?

MR MOSIANE: Do you mean personally or how?

ADV SIGODI: No, what I mean is, you were previously an ANC member, were you not?

MR MOSIANE: That is correct, Chairperson.

ADV SIGODI: So being an ANC MK member, did you not know Mr Mxenge?

MR MOSIANE: I did not know him personally, but I learned about him.

ADV SIGODI: So when you were bombing his house, you still say that you did not expect to find people in his house?

MR MOSIANE: At that time, I did not think whether there would be people or there would not be people inside the house.

CHAIRPERSON: As I understand your application and what you've told us earlier, you thought these houses were used as meeting places by activists.

MR MOSIANE: That is correct, Chairperson.

JUDGE DE JAGER: Do you know whether he was actually living at this house, or did he live elsewhere?

MR ROSSOUW: Sorry, Mr Chairman, I'm under the impression and I might be wrong here, we can clear that in evidence, but I believe that at the time of the attack, Mr Mxenge had already been murdered.

JUDGE DE JAGER: I don't know when the attack was, he can't give us the date of the attack, it's 1985, 1986.

MR ROSSOUW: May I, with your leave, explore that? Mr Mosiane, do you know whether - you've said that you didn't know Mr Mxenge personally, but what information did you have about him at the time of this attack?

MR MOSIANE: During this attack I knew that the late Griffiths Mxenge was murdered earlier by the Special Branch. I knew that he was murdered by members of Vlakplaas who were under the command of Dirk Coetzee and then again I knew that when we were going to attack this house, his wife has since died.

MR ROSSOUW: Are you saying that his wife died before or after this attack?

MR MOSIANE: When we were going to attack this house, Mr Mxenge had already died.

JUDGE DE JAGER: Were his children still staying at the house?

MR MOSIANE: I don't know, Chairperson.

JUDGE DE JAGER: Did you, on leaving the house or afterwards, think that there might have been people killed in that attack, or before you went there, did you envisage perhaps somebody could be sleeping there and could be killed?

MR MOSIANE: It is possible that there could have been a person in that house, but I have no information in that regard.

CHAIRPERSON: Well despite what our counsel said earlier about arguing, I see that you stated in your supplementary statement, that you're applying for amnesty for arson, malicious damage to property, or any other offence or delict that can be inferred from the facts. You don't think you were likely to have killed anybody there, do you?

MR MOSIANE: It is possible, Chairperson.

JUDGE DE JAGER: No, we know anything is possible, but we've got to decide. You've applied now for amnesty for arson and anything flowing from that, so you're not applying, let's have that clear, you're not applying for attempted murder, you're applying for arson.

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Thank you Mr Chairman. Mr Mosiane then can we move to the second house and can you describe to the Committee how the attack was carried out on the second house?

CHAIRPERSON: We started this hearing late this morning because everyone was preparing, but it struck me that certain members of the public may have been here for some time. It might be convenient for them if we take the adjournment now at the normal time, so we will take the adjournment before we get on to the other house. We'll take the short adjournment now. If you want to leave here for a few minutes, you're at liberty to do so.

GABUKLELWE CHRISTOPHER MOSIANE: (s.u.o.)

MR ROSSOUW: Mr Chairman, I have seen my Learned Colleague leave with his suitcase. I've seen my Learned Colleague, on behalf of the Mxenge family, leave with his suitcase.

CHAIRPERSON: He's not here now ...(indistinct - mike not on)

JUDGE DE JAGER: Did he perhaps indicate whether he's opposing the application or not?

MS MTANGA: Chairperson, he will be asking some questions based on his instructions on the ...(indistinct) that he got from the client this morning. The interpreters are informing me that he went to his car.

MR ROSSOUW: Thank you Mr Chairman.

EXAMINATION BY MR ROSSOUW: (cont.)

Mr Mosiane we're now on the way to the second attack. Can you tell the Committee how this attack on the second house was carried out?

MR MOSIANE: When we arrived at the second house, I observed that it was a four roomed house and it did not have a fence. We entered the yard. We went around the house to the back side, then we started throwing the petrol bombs from the back. We were throwing them through the window. I saw that there was one back window and one back door. Those who threw the petrol bombs were myself, Nicholas Dube and Mavuso Tshabalala. There is an ...(indistinct) light near that house, therefore there would be light on the surrounding houses.

MR ROSSOUW: Were you able to see anything that happened there in the light which was thrown from this lamp post?

MR MOSIANE: Yes, Chairperson, I was able to see.

MR ROSSOUW: Now what transpired further?

MR MOSIANE: Whilst we were throwing the petrol bombs, one person started screaming inside the house. Whilst he was screaming, it seems as if he wanted to go through the door and run away. One among us started shooting with a pistol, then that person went back inside the house. Whilst this was happening, we threw those petrol bombs quickly and started running away from that area, when inside the car and returned back.

MR ROSSOUW: Now Mr Mosiane, did you have a firearm with you?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Did you fire your firearm?

MR MOSIANE: No, Chairperson.

MR ROSSOUW: Are you able to say who the person was in the group who fired his firearm?

MR MOSIANE: No, Chairperson.

CHAIRPERSON: Did you know that other people in your group were armed?

MR MOSIANE: Yes, Chairperson.

MR ROSSOUW: Mr Mosiane, did I understand you correctly? After you saw this person or heard him screaming inside the house, you still proceeded after that to throw petrol bombs through the window?

MR MOSIANE: That is correct, Chairperson.

MR ROSSOUW: Now let's just deal with this, Mr Mosiane. Your instructions that you received from Mr Taylor, were those instructions to kill anybody?

MR MOSIANE: No, Chairperson.

MR ROSSOUW: Now why did he single out these two houses? What was the reason for the attacks?

MR MOSIANE: I was informed that that person belonged to a particular Trade Union and in regard to the first house, I was informed that it was used for meetings, it was used for secret meetings.

MR ROSSOUW: By whom?

MR MOSIANE: By members of UDF etc. or other members of the Trade Unions.

MR ROSSOUW: Mr Mosiane in your application you've stated on page 49 under the heading political objective, that the purpose of the attacks were to intimidate the political activists, do you see that?

MR MOSIANE: That is correct, Chairperson, I do.

MR ROSSOUW: Do you confirm that section of your amnesty application specifically with regard to the political objective?

MR MOSIANE: I do, Chairperson.

MR ROSSOUW: Now let's just deal with ...(intervention)

CHAIRPERSON: While we're on that point, you've also said the damage to property was foreseen.

That doesn't make sense if you knew he was already dead. What's your comment.

MR MOSIANE: I do not understand the question, Chairperson.

CHAIRPERSON: You say in your statement there, or your particulars, that the purpose of the attacks was to scare activists and not to injure or kill anyone. Damage to property was foreseen.

That would appear to indicate that you thought Griffiths Mxenge would suffer damage as a result of the attack on his house, he would be a victim.

MR MOSIANE: There was a mistake, Chairperson, when this was typed. I do not agree with it.

CHAIRPERSON: Thank you.

MR ROSSOUW: Thank you Mr Chairman. Mr Mosiane, then you've testified where you received your orders, from Mr Taylor, Col Taylor. Now were you in a position to question those orders that you received?

MR MOSIANE: It was not possible, Chairperson, to question those orders.

MR ROSSOUW: Why not?

MR MOSIANE: Yours at that time was to receive orders as given. Anything which you would ask would be in regard to information.

MR ROSSOUW: Mr Mosiane, did you receive any additional remuneration or any reward for your participation in these two attacks?

MR MOSIANE: No Chairperson.

MR ROSSOUW: And did you partake in these attacks through ill will or malice towards the victims?

MR MOSIANE: No, Chairperson.

MR ROSSOUW: Mr Mosiane is there anything that you would like to add to express yourself today in respect of the families and the victims?

MR MOSIANE: Yes Chairperson. To the families of Mr Mxenge, I ask for forgiveness from the depth of my heart because I know and understand well that they suffered for a long time because they were freedom fighters. I was used in an inhuman way to oppress freedom fighters like members of the Mxenge family. With those words, you would recall that these terrible acts which I took part in were not directed particularly to the Mxenge family only, but they were directed to each and every person who took part in the struggle, therefor in this way I say I did not affect the Mxenge family only, but I was put in that position because I struggled, then I was fighting against myself, that is why I understand the pain they suffered, they endured, through the acts of the previous Government and again this person whom it has been said that he was a member of the Trade Union, whom we were forced to attack his house by fire, he was the same as the Mxenge family. His problem was because he was fighting against the oppressive Government. Even to him or to his family I request for forgiveness, because he's no way different from the Mxenge family. I've already stated that the reason for attacking his house was because he was against apartheid. I've nothing personally against him. The people I ask forgiveness from have an opportunity and an ability not to forgive me. I would not complain, because I understand the situation they were in during these incidents. I would end by saying I suffered a lot. This would be a mark in my life, I would not forget this. Even if they may forgive me, I will not forget this. That is all, Chairperson.

MR ROSSOUW: Thank you Mr Chairman, that's the evidence-in-chief.

JUDGE DE JAGER: ...(indistinct - mike not on)

INTERPRETER: The speaker's mike.

JUDGE DE JAGER: Did you join the Security Police out of your own free will?

MR MOSIANE: I was forced to join, Chairperson.

JUDGE DE JAGER: What did they do to you to force you to join them? Why do you say you were forced to join them?

MR MOSIANE: You would be aware Chairperson that I was abducted from Swaziland and brought to the Republic. When I was kidnapped, I was a member of Umkhonto weSizwe. When I was abducted from Swaziland, I had only two options, to collaborate with them, or disappear.

JUDGE DE JAGER: And if you say disappear, what do you mean? You had to collaborate or be killed, or what do you mean?

MR MOSIANE: I mean be killed, like those who were killed.

JUDGE DE JAGER: And at a later stage for instance when you were here in Durban, why didn't you escape and go back to the ANC?

MR MOSIANE: That would not help, Chairperson. Chairperson, I will be obliged to be direct and short and inform you that when we talk about the previous Government, they had overwhelming powers, they had infiltrated ANC, in other words they were controlling the ANC from inside in that way and with those reasons. Yes, it is true that I would run away and rejoin the ANC, then the enemy inside the ANC would bring me back to the Republic as they did with my co-comrades.

JUDGE DE JAGER: ...(indistinct - mike not on) stated somewhere what happened to, was it Justice Negede, who went back to the ANC, is that the correct name?

MR MOSIANE: That is correct, Chairperson.

JUDGE DE JAGER: What happened to him when he went back?

MR MOSIANE: He was returned to the enemy camp.

JUDGE DE JAGER: Was he assaulted, or what happened to him?

MR MOSIANE: Justice Negede was assaulted in such a way that members who re-arrested him had no reason to continue with the assault. He returned being assaulted. He had terrible injuries because they did not believe that he escaped or not, then he was returned.

JUDGE DE JAGER: So in fact you were between two fires. If you went back the ANC wouldn't believe that you escaped and voluntarily came back to them, they would still have suspicions that you're an askari, being a spy now planted back into their midst. Would that be correct?

MR MOSIANE: That is correct, Chairperson.

JUDGE DE JAGER: So you, in fact once you've landed in that situation, you didn't even have a choice either to go back or to go forward or be killed on either side, that was the only choice?

MR MOSIANE: That is correct, Chairperson.

JUDGE DE JAGER: Thank you.

CHAIRPERSON: Right any questions?

MR PANDAY: Yes, Mr Chairman. First we apologise for having been slightly delayed.

CROSS-EXAMINATION BY MR PANDAY: Mr Mosiane, the way I understand your evidence is that obviously it was out of necessity that you joined the askaris, is that correct?

MR MOSIANE: That is correct, Chairperson.

MR PANDAY: Do I further understand it that in no way did you support any of their objectives?

MR MOSIANE: That is so, Chairperson.

MR PANDAY: Now would I be correct in assuming that whilst with the askaris, you received remuneration either in the form of a salary or money of some sort for living?

MR MOSIANE: That is so, Chairperson.

MR PANDAY: Now at the same time, would you consider that you were now a hired person? Would you consider yourself to have been a hired person at the time?

MR MOSIANE: No, Chairperson, that's a big mistake.

MR PANDAY: What would you have considered your position in the Askari as?

MR MOSIANE: I considered myself as a person who was in a catch 22 situation.

MR PANDAY: So at the time, did you still believe in the principles of the ANC whilst being an askari?

MR MOSIANE: Yes, Chairperson.

MR PANDAY: At present?

MR MOSIANE: I haven't changed, Chairperson.

MR PANDAY: So would you agree that your benefit was purely for the purposes of saving your hide?

MR MOSIANE: Chairperson, you should understand that I had no other options. I had no choice. Otherwise I personally would have joined the police, I wouldn't even worry to go to the ANC in exile to become an MK combatant, so it is very incorrect to suggest or assume that I benefited, therefore I relished that.

MR PANDAY: Well it is the victim's contention that you obviously benefited in that you were saved from being killed and as such you had no political basis, your actions weren't politically based as such.

MR MOSIANE: I do not understand you when you say there was no political motivation. In which way? Can you please rephrase the question so that I understand it Chairperson?

MR PANDAY: Let me rephrase it. If you are an MK member and the ANC ask you to carry out an operation, you would have done that, isn't that correct?

MR MOSIANE: Yes, Chairperson.

MR PANDAY: Because you identified with the values and the principles of the ANC, is that correct?

MR MOSIANE: That is correct, Chairperson.

MR PANDAY: Now by joining Vlakplaas, that was not done because you identified with any values, or principles of the Apartheid Government, is that correct?

MR MOSIANE: Okay Chairperson, let's start there. I had no option, you must be careful on that one.

MR PANDAY: So would you therefore agree then that if in the event that you had to be prosecuted for any acts arising out of your actions, you would then have to raise a defence of that being necessity, you had no option?

MR MOSIANE: That is so Chairperson.

MR PANDAY: Thank you. Now Mr Mosiane, you were more permanently based in the Transvaal, is that correct, when you were part of Vlakplaas?

MR MOSIANE: No.

MR PANDAY: Where did you normally - where were you normally based?

MR MOSIANE: I was based in Pretoria, but I was not working in Pretoria all the time.

MR PANDAY: Okay, that's fine. Now when you came now to Durban to carry out the operation, you were obviously briefed by your superior, Andy Taylor, that you need to go and carry out the operation, is that correct?

MR MOSIANE: That is correct, Chairperson.

MR PANDAY: Now did you all do any reconnaissance work before you carried out the operation?

MR MOSIANE: The members of Mr Taylor had already undertaken reconnaissance, that is what I believed Chairperson.

MR PANDAY: Now the people that went with you to carry out the operation, did any of them, were any of them involved in the reconnaissance work?

MR MOSIANE: Are you referring to the people from Vlakplaas?

MR PANDAY: No, no, I'm talking about the people that accompanied you on the day the houses were petrol bombed, those that were present, did any of them do any reconnaissance work?

MR MOSIANE: These people were from the Special Branch here at CR Swart, they knew Durban in full. Spyker Myeza knew Durban and other areas surrounding Durban, Umkabazi as well as the place and Mike Lembede knew the place.

MR PANDAY: No, who knew about the Mxenge house? Who would have been able to tell you that there's one person, two persons, or there's no guards, nothing?

MR MOSIANE: The person who was driving the vehicle that took us to those places was Spyker Myeza.

MR PANDAY: So did he tell you what to expect or not to expect at the Mxenge house?

MR MOSIANE: No, Chairperson.

MR PANDAY: Were you not concerned that if you landed at the Mxenge house that you could have been killed, had there been people guarding that house?

MR MOSIANE: No, I don't think we were concerned about that, I never thought about that Chairperson.

MR PANDAY: Why would you say you were not concerned about that?

MR MOSIANE: Chairperson, in this type of an operation, what was in my head personally was to carry out the instructions that I was given.

MR PANDAY: Mr Mosiane, would you agree that before one goes and carries out any operation, they would need to know what they're going to come up against?

MR MOSIANE: Yes, I do agree with you, Chairperson.

MR PANDAY: So would you agree also for that operation to be successful, you would have had to know certain information about the place you're going to attack?

CHAIRPERSON: You were taken there by three Warrant-Officers in the Security Police, is that correct?

MR MOSIANE: That is correct, Chairperson.

CHAIRPERSON: You'd been told by a Major in the Security Police that you must attack these houses with petrol bombs?

MR MOSIANE: That is correct, Chairperson.

CHAIRPERSON: And they took you to the houses, they got out with you, the Warrant-Officers?

MR MOSIANE: That is correct, Chairperson.

CHAIRPERSON: And you carried out the orders you had been given?

MR MOSIANE: That is correct, Chairperson.

MR PANDAY: Now Mr Mosiane, do you recall the month that you attacked the Mxenge property?

MR MOSIANE: No, I do not remember the month, Chairperson, otherwise I would have written that in my application for amnesty. I really do not remember, Chairperson.

MR PANDAY: I'm going to put it to you that the attack was carried out in August, the first week, toward the middle of the second week of August. Would one be wrong in that?

MR MOSIANE: I would not disagree with you Chairperson.

JUDGE DE JAGER: And the year?

MR PANDAY: It was 1985, I understand, Mr Chair, 1985. Now you mentioned in your evidence that you understood the mother, Mrs Mxenge to have been deceased. How did that information come to your knowledge?

MR MOSIANE: There was a time when I was discussing with Michael Lembede and he told me that Mrs Mxenge was killed.

MR PANDAY: Now was she killed before you went to attack this place, or after?

MR MOSIANE: That is before, Chairperson.

MR PANDAY: Right. Did you not discuss when she was killed?

MR MOSIANE: No Chairperson, what I meant was that she was killed after Mr Mxenge, that is Griffiths Mxenge.

MR PANDAY: Now you see, after having consulted with the son, Mabasa Mxenge, he says that his mother died on the 1st of August of that year, 1985 and this attack was carried out about a week, a week and a half after the mother's death.

MR MOSIANE: I would not dispute that Chairperson.

MR PANDAY: Did you know whether there were any children of the Mxenges?

MR MOSIANE: No, Chairperson.

MR PANDAY: And on consultation with Mr Mabasa, that at the time of the attack it was him, his brother and the old lady that was taking care of them, who were in the house.

MR MOSIANE: I would not dispute that fact, Chairperson.

MR PANDAY: Now just one or two more questions. When you went to attack this house, did you know it was a residence, it was a home that you were going to attack?

MR MOSIANE: Yes, Chairperson.

MR PANDAY: And do you accept that one would have foreseen there to have been people in the house?

MR MOSIANE: Yes, I do, Chairperson.

MR PANDAY: Thank you. Nothing further Mr Chairman.

CHAIRPERSON: ...(indistinct - mike not on)

MS MTANGA: Yes, Chairperson, I have a few questions.

CROSS-EXAMINATION BY MS MTANGA: Mr Mosiane, you've testified that when you went on these two operations, you were with W/O Lembede, Myeza and a third person, have you ever seen these three officers after the incident, the attack on the Mxenge house?

MR MOSIANE: No Chairperson.

MS MTANGA: How long before the attack on the Mxenge house were you brought from Vlakplaas and placed in Durban? Can you recall how many days before the attack?

MR MOSIANE: I do not recall, Chairperson.

MS MTANGA: Mr Mosiane, the death of Mr Mxenge around the 1st of August 1985, was quite a big incident in Durban at that time. Do you know if - were you around Durban on that day, or were you not, because if you worked for the Security Forces you would have known about the attack.

MR MOSIANE: I do not recall, Chairperson.

MS MTANGA: You mentioned that the second house that was attacked, belonged to a Trade Unionist.

MR MOSIANE: That is how we were told, Chairperson.

MS MTANGA: Was it explained to you how would this Trade Unionist become a political target by your unit, that is the Vlakplaas unit?

MR MOSIANE: Chairperson, you will remember that during those days black people who were against the oppressive government, members of the UDF, Trade Unionists, were regarded by that government as the enemy of the then government.

MS MTANGA: I have no further questions, Chairperson.

MR ROSSOUW: No re-examination Mr Chairman.

ADV SIGODI: In total how many petrol bombs did you have?

MR MOSIANE: I do not recall, Chairperson, because we used some in our first target, that is at Griffiths Mxenge’s house and the remaining ones, we used at the second house. I do not remember how many petrol bombs we had Chairperson.

ADV SIGODI: Do you know how many you threw at Mxenge’s house?

MR MOSIANE: No, Chairperson.

ADV SIGODI: You personally, on your own, how many did you throw?

MR MOSIANE: I threw about two, Chairperson.

ADV SIGODI: And then at the second house, how many did you throw?

MR MOSIANE: It could be two again, Chairperson.

ADV SIGODI: And you say that the other people who were with you, also threw petrol bombs at the house?

MR MOSIANE: That is correct, Chairperson.

ADV SIGODI: So in total, there could have been more than at least four petrol bombs in one house at a time? Two from you and a minimum from of one from the other two people?

MR MOSIANE: Well, Chairperson, I would not dispute that.

ADV SIGODI: And your knowledge about - I mean these petrol bombs that you had, how powerful were they?

MR MOSIANE: I will only talk about their sizes, Chairperson, but I would not be able to tell you about the technicalities involved in the power of it. We used a 750 ml bottle.

ADV SIGODI: So you have no idea how many petrol bombs you would need to destroy a house?

MR MOSIANE: No, Chairperson.

ADV SIGODI: And how long did it take you to drive from Mr Mxenge’s house to the Trade Unionist's house, how far was it?

MR MOSIANE: I wouldn't be able to estimate, Chairperson, but it did not take us long because we did these two operations in one night.

ADV SIGODI: And he also stayed in Umhlazi, this other person, this Trade Unionist?

MR MOSIANE: I believe so, Chairperson.

ADV SIGODI: Okay. Thank you Chairperson.

CHAIRPERSON: We've been talking about petrol bombs, but were these bottles, glass bottles full of petrol?

MR MOSIANE: Yes, Chairperson.

CHAIRPERSON: And did you have something protruding from the top which you lit before you threw it?

MR MOSIANE: Yes, Chairperson.

CHAIRPERSON: There were no explosives, or was there?

MR MOSIANE: No Chairperson, there were no explosives inside.

CHAIRPERSON: Thank you.

MR ROSSOUW: That's the evidence for the applicant, Mr Chairman.

MR PANDAY: I have no further questions and we would not be calling any witnesses, Mr Chairman.

MS MTANGA: No evidence, Chairperson.

MR ROSSOUW: Thank you Mr Chairman. I'll be brief, unless there is something specific that the Committee wishes to hear me on.

MR ROSSOUW IN ARGUMENT: Mr Chairman, I submit that this applicant has complied with the requirements of Section 20 of the Act in submitting his application. I submit that he is covered under Section 20 (2) (b), being an employee of the State. Mr Chairman, you've heard that he received his salary and I will submit that the Amnesty Committee has heard ample evidence concerning the position of askaris at Vlakplaas. Mr Chairman, that would cover him and I submit, Mr Chairman,

that he has made a full disclosure today of the relevant facts within his knowledge pertaining to these two incidents. Mr Chairman, the one issue that remains is political objective and from the questions asked by my Learned Colleague, I wish to address you on that aspect specifically.

Mr Chairman, having regard to the requirements of the Act, political objective should be seen also in the light of the order that was received and I submit that Section 20 (2) (b) makes that very clear, Mr Chairman and there can be no question that there was a carrying out of orders in the bona fide belief, Mr Chairman, that it was aimed at an opponent of the State or a member of the struggle against the existing regime. Now Mr Chairman, I would submit that here we should not try and split hairs as to whether a person subjectively supports that is a different question as to whether you believe that the order that you're carrying out is aimed at achieving a specific purpose and Mr Chairman I submit that there can be no question here that the orders that were given by a Colonel in the Security Branch, whose members identified the targets and it was carried out by the foot soldiers, Mr Chairman, there can be no question that under those circumstances the attacks were aimed against supporters or members of the struggle and the liberation struggle in a broad sense. Mr Chairman, we all know that that was the aim of the Security Police, that was the main objective that they tried to ...(intervention)

JUDGE DE JAGER: I don't think that's the problem which I envisage. I think the problem would be, what was his motive, he himself? He wasn't - he didn't regard the ANC as his personal enemy, he regarded them as an enemy of the State, so did he have the motive to support the State or was he - what he told us that he still believed in the principles of the ANC, so in acting against them, he actually acted against his own people, but also against enemies of the State, in whose employ he was at that stage and would that make a difference as far as his application is concerned?

MR ROSSOUW: I would submit not, Mr Chairman. It's clear that what we have here is whether it is a foot soldier who follows orders and carries them out without being placed in possession of the knowledge and the information as to the aims to be achieved by the Generals, Mr Chairman, as we heard on numerous occasions, the need to know basis would similarly apply to a person in the position of Mr Mosiane who carried out the order.

JUDGE DE JAGER: ...(indistinct - mike no on)

INTERPRETER: The speakers mike.

JUDGE DE JAGER: ... an ordinary policeman who didn't support the policies of the Government, he wasn't a member of the ruling party for instance. He might have been a member of an opposition party at that stage and he carried out orders, would you say he had the objective of fighting the enemy of the State? My - I want to have clarity on this. It was a fight against the enemies of the State, not against his personal enemy. He obeyed orders because he was in the employ of the State. He might have been a member, not of the Nationalist Party for instance, but he believed he had no choice but to obey the orders of his superiors and would you say he would then fall within a category entitling him to get amnesty?

MR ROSSOUW: Yes, I would submit that would be the case, Mr Chairman. If I can take it one step further, if we take a Security Policeman who is not a member of the Nationalist Party, who does not necessarily support the views of the Government of the day, at that stage, but is being used through the orders given to him, in a chain of events which led to the COSATU House bombing, Mr Chairman, this was the person who supplied the vehicle, or was one of the links in the chain, but was not privy to the decision making or the carrying out, eventually, would he be disqualified from getting amnesty, Mr Chairman, under those circumstances where he was deprived of the knowledge, where he was not placed in possession of the facts and the total aim to be achieved? I would submit that you can't disqualify him. Now Mr Chairman, I know that there's a debate as to the Norgaard principles, which say you must look at the subjective view with which I think so many Security Policemen will be entitled to amnesty, if they subjectively believe, but Mr Chairman, there's always, always an objective question involved and I can just refer to the amnesty application of Michael Bellingan, who subjectively might have believed that murdering his wife might achieve some political end, but objectively it's impossible, so Mr Chairman, under those circumstances I would say let's look at the objective facts here and what we know is that the two houses were identified. There's no dispute that it was used by activists. There's no evidence to suggest that the second house was not that of a Trade Unionist and it was targeted by the Security Branch in Durban. A high ranking official, the Commander I believe at that stage of the Security Branch, gave the order. Objectively, Mr Chairman, I submit that it's clear that the aim to be achieved here, was for intimidation and whether you support that, whether you say that it's right or not, is a totally different question and I submit it merely lies, as far as Mr Mosiane is concerned, on a question of whether he was in a position to judge it as right or wrong. He obviously thought it was wrong. He obviously did not support it in that sense of a moral value on his own side, on his own personal side Mr Chairman, but I think that subjectively he knew and he foresaw that it was with the aim of intimidating members of the liberation struggle, opponents of the then Government of the day.

I submit that on those grounds, Mr Chairman, that he is entitled to amnesty. If one has regard to Section 20 (3) which deals with the further aim or identifying the political objective, I submit Mr Chairman that one has to look at the aim to be achieved here, that is also one of the factors listed in the Act and the aim here was clearly to intimidate. Now those, Mr Chairman, I submit are pure objective factors, which are mentioned in the Act. I know that some of my colleagues will argue that it is purely subjective, but there is an element of objectivity there and the aim to be achieved here, I think, is not in dispute.

Unless there is anything else that the Committee wishes me to address them on, Mr Chairman, I don't think I have any more submissions.

CHAIRPERSON: Who was to be intimidated? I'm thinking now of the Mxenge house. We have evidence that Griffiths Mxenge had been murdered by the Security Police. Because his wife had shortly before this incident, the family had ceased to exist. Why attack the house?

MR ROSSOUW: Mr Chairman, in fact the only evidence before the Committee is that the house was used by activists as a meeting place, that is not in dispute.

CHAIRPERSON: Was that still so?

MR ROSSOUW: Well Mr Chairman, that was at the very least the information conveyed to the applicant. Whether that was in fact so or not, he will not be in a position to testify, but I submit that there's no evidence to suggest otherwise. As far as the Trade Unionist is concerned, Mr Chairman, you've heard that it was the UDF members, I think, which were aimed at, at that time.

MR PANDAY: Thank you Mr Chairman.

MR PANDAY IN ARGUMENT: Mr Chairman, I submit that the applicant firstly finds itself in a very unique situation in that for one to satisfy a soldier carrying out orders, firstly that soldier had to be a wilful soldier. Now the applicant, we've heard, was not a wilful soldier. His choice was one of two, you either join us to attack the ANC, or you disappear. That is how his position stood. Now the applicant had to make a decision, which was obviously, even according to his papers, obvious the former decision, being just join Vlakplaas. Now by joining Vlakplaas, he in no ways supported the view of the Government, right, he merely joined them to save himself. Now that as such, has no political bearing, it only has personal benefit. The benefit he got from that was life. Now should the Committee decide not to give the applicant amnesty and obviously if in any event the applicant is prosecuted for some reason or the other

for his acts, then it is quite simple, his defence would be that it was out of necessity. I had a choice. My life, or I support the actions of a force superior to me. The force superior to him was Vlakplaas.

JUDGE DE JAGER: But in necessity, if I were to, in a Court of Law, defend myself on the fact of necessity and the basis would be an illegal order, would I succeed?

MR PANDAY: At the best on an illegal order?

JUDGE DE JAGER: Ja because the order, there's no doubt that the order to commit arson or to throw petrol bombs, was an illegal order.

MR PANDAY: But Mr Chairman I think if one looks at the order, the order coming from a superior, that may not necessarily have been an illegal order.

CHAIRPERSON: Why not? We did not recognise in this country at that time the right of the police, no matter how senior, to burn people's houses.

MR PANDAY: Okay. Mr Chairman, I would submit, even should one raise the defence of necessity, the applicant will still succeed, because invariably he had someone controlling him, he was being controlled by his superiors, Andy Taylor and so forth, so even in those circumstances, although the order be illegal from Andy Taylor, Andy Taylor had control over the applicant, and I'll submit that the applicant will still succeed on such a defence, even though that order being illegal. May I proceed Mr Chair? Right now, the applicant obviously finds himself in a unique situation. He is not from any political - he accepts that he was an ANC man, who still supported the principles of ANC, but merely joined out of saving himself and as such, Mr Chairman, he was not a wilful participant of Vlakplaas and I respectfully submit that he not qualify for amnesty and does not fulfil the requirements.

CHAIRPERSON: None of the askaris would then be justified in applying for amnesty, is that your contention?

MR PANDAY: Mr Chairman, I'll concede that if the askaris obviously changed their political beliefs as well, then the situation would be reversed.

CHAIRPERSON: Most of the evidence, I can't say everyone, is that they were compelled to act as askaris, they were compelled to serve in the police force.

MR PANDAY: I'll concede that point, Mr Chairman.

JUDGE DE JAGER: The position would then be that we would grant amnesty to people who out of their own accord willingly murdered people, but we wouldn't grant amnesty to a person who was forced to serve the old regime.

MR PANDAY: I see the predicament that the Committee would find themselves in. It would almost have to be drawing a model

conclusion as of course the conclusion must be drawn in terms of the section.

MS MTANGA: Chairperson, I have no submissions, I will leave this matter in your hands.

MR ROSSOUW IN REPLY: No, Mr Chairman, maybe just to say, when we talk about control and the applicant was an instrument, it comes quite close to the vicarious liability doctrine and maybe even on that argument, one can argue that the intention of the State can be imputed here through the tool which was used, but I think that's a little far fetched. Mr Chairman, I have nothing further except the list that you've asked me of applications in which the applicant was, I've been able to compile that.

CHAIRPERSON: We're obliged to you for your assistance in that regard.

JUDGE DE JAGER: Has everything been dealt with? ...(indistinct - mike not on)

MR ROSSOUW: This is his last application, everything has been dealt with and I've tried to give you an indication as to who was the presiding officer at the various hearings throughout the country.

CHAIRPERSON: The Committee will take time to consider its decision. Should we adjourn now or should we start the next matter? We'll obviously, if we start the next matter, we'll only get a bit of the applicant's version. What would you rather do?

MS MTANGA: Chairperson if I may correct that, Mr Harkoo was consulting with his client in that room, so you can proceed with this matter.

JUDGE DE JAGER: Or could we have lunch and proceed say at half-past one?

MS MTANGA: I'm not sure what time it is now and I wouldn't be sure ...

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

CHAIRPERSON: We will adjourn now till 2 o'clock.

--------------------------------------------------------------------------CHAIRPERSON: Right are we all ready? Well if you would just put yourself on record please.

MR HARKOO: I'm R Harkoo. I'm representing the applicant in this matter, Mr Gwala.

CHAIRPERSON: The Committee remains the same. The Leader of Evidence remains the same. Nobody appearing for the victims?

MS MTANGA: Chairperson Mr Panday is appearing for the victims in this matter and he's still not back from the meeting that he was attending.

CHAIRPERSON: I don't know when he's likely to be here. He came back from the short adjournment at 20 to 12. Do you think there's any point in waiting now, or shall we start and he can then be told what has happened, if there is anything that he ought to know of?

MS MTANGA: Chairperson, can I be given an opportunity to at least phone him and just find out where he is? I'm prepared to do that.

CHAIRPERSON: Fine.

MS MTANGA: ... outside parking.

CHAIRPERSON: Then I think we might as well commence to swear the applicant in and matters of that nature.

MR HARKOO: Thank you Mr Chairman.

ZOKELE BHEKI GWALA: (sworn states)

CHAIRPERSON: Thank you.

MS MTANGA: Chairperson before he commences with his evidence, can I place on record the matter that we're dealing with?

CHAIRPERSON: Yes.

MS MTANGA: It's the application of Zokele Bheki Gwala, reference number AM4267/96. Thank you Chairperson.

JUDGE DE JAGER: Mr Panday, perhaps you should utilise some of the money you're earning now to buy a new watch.

MR PANDAY: Mr Chairman, I must apologise, I was rushing across from ...(indistinct) Street, as I explained, Advocate's Chambers to get across here. I do apologise for the slight delay. MR HARKOO: May I present the witness, Mr Chairman? Thank you.

EXAMINATION BY MR HARKOO: Mr Gwala, you're an applicant in this matter for amnesty relating to an incident whereby you were convicted on two counts of murder and four counts of attempted murder. The incident in question had taken place some time on the 7th of May 1991. Could you tell the members of the Committee briefly the circumstances that led to this incident?

MR GWALA: I will relate the incident that took place and the reasons that motivated me to commit that offence. The situation at the time was that of conflict between the IFP and the ANC in the eMlanjeni area, which I used to frequent. For the reason that I used to visit that area, I had a friend Tulani Cele and a girlfriend Lea Gasa staying there. Tulani's girlfriend, Tumbisa Mabasa ...(intervention)

ADV SIGODI: Sorry, would you ask the applicant to speak a little bit slower so that the interpreter can interpret everything for us?

MR HARKOO: Mr Gwala, will you please go a little slower, or a lot slower so that we can take notes as well.

MR GWALA: Okay.

MR HARKOO: I think whilst you're there, I think that perhaps we should first mention that during this period, were you a member of any political organisation?

MR GWALA: Yes, I was an ANC member then and I remained a member of the ANC.

MR HARKOO: And how long were you an ANC member?

MR GWALA: I'm not absolutely certain of the days, but I joined in 1987 when the political conflict erupted in 1987.

MR HARKOO: Did you occupy any official position within the organisation?

MR GWALA: No, I did not hold a particular position, I was just an ordinary member.

MR HARKOO: Okay you may go ahead now with the incident that took place.

JUDGE DE JAGER: Now perhaps you could assist ...(indistinct - mike not on)

INTERPRETER: The speaker's mike is not on.

JUDGE DE JAGER: It would assist if you would lead him, then at least we could listen to the question and have time to write down the answer and that kind of thing. If it's difficult, okay let him proceed on his own, but it may assist us if you could ask him pertinent questions and he could answer to that.

MR HARKOO: As the Commission pleases. Mr Gwala, during or about May 1991, were you living in the area at ...

MR GWALA: I resided at ...(indistinct) and I was working in Hammarsdale.

MR HARKOO: Were you involved - you were involved in this incident whereby you were convicted of the murder of the Mabasa family, is that correct?

MR GWALA: That's correct.

MR HARKOO: What part did you play in this incident?

MR GWALA: I am the person who went out and called everyone who was going to take part in the incident and I also took part when this commission was carried out.

MR HARKOO: And what prompted you to go and get everybody to carry out this mission?

MR GWALA: Please repeat the question.

MR HARKOO: What were the reasons as to why you went out to get these people to assist you?

MR GWALA: The reason why I went to collect them was because they were my comrades who would always assist me when we went out to fight the IFP.

MR HARKOO: Could you name these people that you are referring to?

MR GWALA: It was myself, Zokele Gwala, Siabonga Difan Hlope, Zazi Mabasa and Bongani Mabasa, Doda Gwala and Nhlamdela Shozi.

MR HARKOO: So were there six of you in all?

MR GWALA: Yes, there were six of us in total, as well as the driver who provided transport for us.

JUDGE DE JAGER: Are those the six names that have been mentioned in paragraph 9 on page 11?

MR GWALA: Yes, all those names that I've written in the statement, the people were present.

JUDGE DE JAGER: Were you the Commander of Unit 4?

MR GWALA: No, I was not the Commander at Unit 4 prior to the incident, but I was the person who was in command of the team that went out.

JUDGE DE JAGER: Now according to this statement, you convened this meeting. Did you do it on your own initiative, or did somebody order you to convene a meeting? Why did you convene this meeting?

MR GWALA: There was a person with whom I had had a prior discussion who was the Commander at that time.

JUDGE DE JAGER: Did you complain about anything to this Commander, or what was the reason for calling this meeting?

MR GWALA: I had previously laid a complaint to that Commander who was also my uncle, Mr Hlengwa.

JUDGE DE JAGER: What was your complaint?

MR GWALA: There was an allegation that IFP members were out to kill a certain girl by the surname of Mabasa. I had interfered and tried to mediate in that conflict and by doing so, I was labelled a collaborator with the family of that girl and thereafter there was word out that I should also be killed.

JUDGE DE JAGER: Now this conflict about this girl, what was it about?

MR GWALA: It was for the reason that they could not find her boyfriend, Tulani Cele, who was a Commander in the Number 10 area. I interfered and mediated in that situation, but the following week they managed to abduct that woman and she was killed.

JUDGE DE JAGER: Do you know who abducted her and who killed her?

MR GWALA: I am not certain who abducted and killed her, but on the occasion that I rescued her, she was in the company of people whom I knew by sight and I was also aware that the same persons were supporters of the IFP.

JUDGE DE JAGER: Who are they? Tell their names, we don't know them. Tell us so that we can know what happened in this instance. Give us the names of the people who abducted her. You said you rescued her on an occasion, tell us about it.

MR GWALA: On that day, there was Jabo Mabasa, Sibongile Mabasa, I do not know the names of the other people who were present, but I can recognise them.

JUDGE DE JAGER: And what was the name of the girl who was abducted?

MR GWALA: Tumbisa Gasa.

JUDGE DE JAGER: Well please continue.

MR HARKOO: Thank you Mr Chairman. And after you had rescued this girl who you mentioned was the girlfriend of you friend, is that correct?

MR GWALA: Yes, I would classify him as a friend.

MR HARKOO: Were they any members of any organisation? MR GWALA: Yes, he was the Commander of the ANC in eMlanjeni area.

MR HARKOO: In your papers you go on to say that the Mabasa clan had conspired to kill you. Can you tell us why did you believe that?

MR GWALA: I believed so for the reason that after the incident, they came to my area in Unit 4, they also went to the eMlanjeni area in the company of the KwaZulu police. In fact they went to my girlfriend's place looking for me.

MR HARKOO: Now in the papers, you mention that your father-in-law was also killed. Would you tell us who did you suspect of having killed him?

MR GWALA: Mphiwa Gasa was attacked and killed. It was later discovered that the persons who were responsible for his death were the KwaZulu police in collusion with the Mabasa clan.

MR HARKOO: So at this stage, you feared that the Mabasa clan would also now come to you, is that correct?

MR GWALA: After learning that they were out looking for me, I decided to be pro-active and take the initiative to attack them instead of them getting me first.

JUDGE DE JAGER: You refer to the Mabasa people as the Mabasa clan and I see they're also referring to your followers as the Gwala clan. Why do you refer to the two parties as clans?

MR GWALA: It indicated that the majority of the people residing in a particular area belonged to one surname, for instance in my area there were many members of the Gwala family.

JUDGE DE JAGER: Yes, Ms Interpreter your voice is coming through very soft, I don't know what's the problem, while the other voices are coming through very clear. You see, I've got this problem, why I'm asking this, you see, you're not referring to members of the ANC and members of the IFP, it seems as though we've got here to do with a fight between two clans, two families and not a political fight.

MR GWALA: These two parties, the Mabasa and Gwala clans, were under different organisations, namely the ANC and the IFP.

MR HARKOO: Now this conflict that you refer to between these two clans, was this just merely a conflict of families or clans as the Chairman puts it, or was it of a political nature?

MR GWALA: It was political conflict.

CHAIRPERSON: But they wanted to kill you and you weren't any office bearer in the ANC. It was you as an individual they wanted to kill, as I understood your evidence.

MR GWALA: It was not that they just wanted to kill me as an individual, but I would say it was political in the sense that the conflict started because of political differences. This girl that they wanted to kill and that they killed, was also a political activist.

MR HARKOO: Okay. So you've now procured these people to help you, is that correct?

MR GWALA: Yes, we had a discussion with my uncle, who suggested that we get a few other people to assist, which we did.

MR HARKOO: And these people were they supporters of your organisation?

MR GWALA: That's correct, they were members of the ANC.

MR HARKOO: Where did you get your weapons from?

MR GWALA: My uncle Siyazi brought them to our area for the reason that he was aware of our problem. He promised to contact Harry Gwala, after which he reported to us that he had been successful in the sense that he had been given weapons, which he handed over to us.

CHAIRPERSON: So did these weapons come from Harry Gwala?

MR GWALA: That's correct.

MR HARKOO: Okay and then what did you do together with these people?

MR GWALA: After we had all assembled, we proceeded. Because of the distance involved, we approached someone to assist us with transport, which he then provided. He then dropped us at Unit 6, at which time we proceeded with the offence.

MR HARKOO: Now when you proceeded through to Unit 6, I presume that is where the Mabasa family lived, is that correct?

MR GWALA: Yes, that is where they had fled to in the eKwendweni area. That is where we went and attacked.

CHAIRPERSON: So you say the Mabasas had fled?

MR GWALA: They had fled from the Nalangeni area to Nondweni, that is in Unit 6.

CHAIRPERSON: So you followed them there.

MR GWALA: Yes, we did.

MR HARKOO: And when you went out to the Mabasa family, did you look for anybody in particular?

MR GWALA: We were looking for the entire family, except for young children, but when we got there, we asked for the father of the household and we were informed that he was not at home. That is when we started firing.

CHAIRPERSON: You looked for the father, you found he was not at home, so you then started firing. Is that what you mean?

MR GWALA: That's correct.

CHAIRPERSON: And who did you kill?

MR GWALA: The children were injured by accident, but I did not know their names.

CHAIRPERSON: ...(indistinct - mike not on)

MR GWALA: Yes, it was per accident because we were not after the children, we were after the adults in the home. We also had information to the effect that the KwaZulu police also stayed there.

CHAIRPERSON: And the only people you killed were two five year old children, is that correct?

MR GWALA: That's correct.

CHAIRPERSON: Did you say that was correct?

MR GWALA: Yes, we learned later that the people who died at the incident were small children.

JUDGE DE JAGER: When you went there, what was your purpose, who did you want to kill? Who were the targets?

MR GWALA: The intention was to kill the father and the son as well as the daughters who were seen to be in close cahoots with the KwaZulu police.

JUDGE DE JAGER: Now could you name those people, those targets you intended to kill?

MR GWALA: Yes. It was Mr Mabasa, Fanyana, his son, his name was Maningi, as well as the girls in the family whose boyfriends were KZP members.

INTERPRETER: The speaker's mike is not on.

JUDGE DE JAGER: Who were the girls?

MR GWALA: Jabo Mabasa, I forget the other names, although I can identify them.

CHAIRPERSON: Not Longili Mabasa, a girl aged 11?

MR GWALA: No.

CHAIRPERSON: Or Fakazili Mabasa?

MR GWALA: I do not know which one is Fakazili.

CHAIRPERSON: A woman aged 57.

MR GWALA: No. ...(indistinct) the girls who posed problems.

CHAIRPERSON: Well how is it that all these other people got shot? Didn't you care who you were shooting, did you just open fire on everybody who was in that house?

MR GWALA: Please repeat the question.

CHAIRPERSON: How is it that the other people got shot, this girl Longili, this woman Fakazili Mabasa?

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: This girl Longili, this woman Fakazili Mabasa, how did they get shot when they were not targets, you've told us. Did you just open fire on everybody in that hut?

MR GWALA: After learning that Mr Mabasa was not home, but the others were present, we started firing and that is how the others also got shot.

CHAIRPERSON: What motive did you have to open fire? You'd learnt that the man you were looking for was not present, why did you then open fire?

MR GWALA: There was a male person inside the hut. There was also a second person, a second male person in another hut, but that we could not attack because he turned out the light.

CHAIRPERSON: Carry on. I may have been wrong about the age of the woman I said was 57, that is on page 80 of the papers, it is hand-written by the doctor. I may have misread, apparent age 57, but on reconsideration it seems odd that you would estimate an age as being 57, it would be 50 or 60.

MR HARKOO: Now you mentioned that in this house there were other males, is that correct? Were you able to identify these other males?

MR GWALA: There was one male person inside the house in which the child was injured. The elder one was with Mabasa's daughter, but that one survived.

MR HARKOO: Now there was evidence that these person were shot and some of them were stabbed. Can you explain that?

MR GWALA: Yes, I can explain, for the reason that there were a number of us involved. Some people were armed with firearms as well as knives and of those who went inside the huts, perhaps there the people were stabbed.

CHAIRPERSON: So they stabbed these women time and again?

MR GWALA: That's correct.

CHAIRPERSON: Can you just tell me, who was in command of this operation?

MR GWALA: I was in command.

CHAIRPERSON: So did you - what orders did you give? Who should they shoot?

MR GWALA: From our discussion, we decided that we would attack the males in the home, as well as the women who were responsible for causing the conflict.

ADV SIGODI: So tell me, one of your co-accused was Barney Mabasa, in the trial, is that correct?

MR GWALA: Yes, he was one of the co-accused.

ADV SIGODI: Was he a relative of the Mabasas that you were attacking?

MR GWALA: I will say it was his family.

MR HARKOO: You mentioned in your papers that the operation was carried out under the command of your uncle Siyazi, was that correct and can you explain that?

MR GWALA: Yes, I can explain. After I had explained the problem to him, my uncle and I held a discussion on how to approach the problem. There was a suggestion made to meet with the Mabasa family, to try to resolve the issue. however, my uncle was of the opinion that those people may kill me first before we even have that discussion, therefore it will be better if I take the initiative to attack first and that is what happened.

MR HARKOO: What was - could you explain to the Committee, what was the political objective that you sought to achieve?

MR GWALA: The political objective to be achieved was that the eMlanjeni area would become an ANC stronghold and that is what happened because all those other people who were not ANC affiliated, left the area.

MR HARKOO: And did you achieve this objective?

MR GWALA: Yes, eventually it happened, because they left the Hammarsdale area.

CHAIRPERSON: Where did they go to?

MR GWALA: I am not certain but I heard that they moved to Nchanga.

CHAIRPERSON: Now where was it that they had fled to where you killed them? You told us, didn't you, that they had fled from the area and that you followed them?

MR GWALA: Yes.

CHAIRPERSON: Where had they fled to?

MR GWALA: They were in hiding at eKwendeni.

CHAIRPERSON: And that was out of the eMlanjeni district?

MR GWALA: Yes, it was outside the eMlanjeni district.

MR HARKOO: Thank you Mr Chairperson, I have no further questions.

CROSS-EXAMINATION BY MR PANDAY: Mr Gwala, did you know the Mabasa family well?

MR GWALA: Yes, I knew them.

MR PANDAY: So how did you know them?

MR GWALA: We used to meet in the Hammarsdale area because they worked there. I also knew them from the eMlanjeni area.

MR PANDAY: Now, did you know how many adults were in that house, or in the Mabasa family, how many adults?

MR GWALA: Are you referring to the day of the incident?

MR PANDAY: No in general, the Mabasa family, do you know how many adults made up the Mabasa family?

MR GWALA: I am not certain of the number, but there were many.

MR PANDAY: Right. How many sons were in the Mabasa family?

MR GWALA: I think about two.

CHAIRPERSON: How many what?

MR PANDAY: Sons.

CHAIRPERSON: Two?

MR PANDAY: Two sons, ja.

CHAIRPERSON: Two sons in the family.

MR GWALA: I think there were two.

MR PANDAY: Did you know how old they were?

MR GWALA: No I did not have any knowledge thereof?

MR PANDAY: Do you think they were more than 20 years old?

MR GWALA: One of them was older than 20.

MR PANDAY: And how many daughters were in the Mabasa family?

MR GWALA: I think there were about four that I knew.

MR PANDAY: How many daughters were going out with the ZP police, as you said?

MR GWALA: From what I learned, it was one daughter.

MR PANDAY: Now do you know the daughter's name?

MR GWALA: I do not know her name, but I know the face.

MR PANDAY: Can you identify them?

MR GWALA: Yes.

MR PANDAY: Now on the left-hand side of you is the Mabasa family, is the daughter present?

MR GWALA: Yes, she is. The one in the white hat.

MR PANDAY: The white hat, are you talking about Sibongile?

MR GWALA: I do not know whether she is Sibongile.

MR PANDAY: The one in the white had, her names is Sibongile Mabasa. Yes, are you talking about her? Right, we'll go on. Right now Mr Gwala, you say that you heard rumours that people were trying to kill you. Who did you hear these rumours from?

MR GWALA: I heard that when I went to the eMlanjeni district. I was informed by Tulani Cele that there were people who were out to kill me. ...(indistinct) also told me the same thing. When I was imprisoned Sipo ...(indistinct) who was a KwaZulu Police in the area also gave me the full details.

MR PANDAY: When he gave you the full details, did he tell you the names of the people that wanted to kill you?

MR GWALA: Yes, he did.

MR PANDAY: Who were the people that were trying to kill you?

MR GWALA: He mentioned Bongani Sithole, Mr Mnkone and Mr Hlengwa. I'm not sure of their first names.

MR PANDAY: Now all these people you talk about, they do not have the Mabasa surname.

MR GWALA: No, but they worked closely with the Mabasa family because they were in the KwaZulu police.

MR PANDAY: Now would it surprise you to note that the Mabasa family are actually ANC members?

CHAIRPERSON: What number did you say? Sorry, I thought you said a number.

MR PANDAY: Would it surprise you to note that the Mabasa family are ANC members.

CHAIRPERSON: Oh ANC, sorry.

MR GWALA: Please repeat that.

MR PANDAY: Would it surprise you if I told you that the Mabasa family are ANC members?

MR GWALA: It would surprise me, because from what I know, they left the eMlanjeni area because of their IFP membership.

MR PANDAY: Now Mr Gwala, you did not live in the area where the Mabasa family first lived, is that correct?

MR GWALA: Yes, I used to go there just to visit.

MR PANDAY: So how far was the place you lived from there?

MR GWALA: It was not that far, because it was a walkable distance.

MR PANDAY: Is that the Njokobokazi area?

MR GWALA: It was the Njokobokazi area.

MR PANDAY: And the area they lived in, did that have its own ANC following?

MR GWALA: Yes, there were members of the ANC residing there.

MR PANDAY: Now if the Mabasa family were, as you put it, IFP supporters, wouldn't they have been killing the ANC members in their area?

MR GWALA: Please repeat the question.

MR PANDAY: The Mabasa family lived in which area?

MR GWALA: At Kwandengeni where we lost the attack.

MR PANDAY: Now in Kwandengeni, were there ANC members in Kwandengeni?

MR GWALA: At the time of the incident, those people who were ANC members were not public about that.

MR PANDAY: You see the Mabasa family will say that you're lying, they were all ANC members in that area because they are from the area. Now when you went to attack them, in which area were they living in?

JUDGE DE JAGER: Could we perhaps hear his response on the statement you've made?

MR PANDAY: Sorry, Mr Chairman.

JUDGE DE JAGER: What do you say, the counsel put it to you that the Mabasa family would tell us that you are lying, they were all ANC members, or the majority are ANC members in that area, the Kwandengeni area, what do you say about that?

MR GWALA: I dispute that for the - I dispute that the Kwandengeni area was an ANC stronghold.

MR PANDAY: Now what region did that area fall under.

INTERPRETER: The speaker's mike.

MR PANDAY: The Kwandengeni area, what region did it fall under?

MR GWALA: Its under the ...(indistinct)

MR PANDAY: Is it also under Hammarsdale?

MR GWALA: Yes.

MR PANDAY: I'm going to turn you to page 43, if you ask your attorney to show you page 43. Right on the top of page 43, do you see the name Fakazili Mabasa?

MR GWALA: Yes, I do.

MR PANDAY: Do you see the region, ANC?

MR GWALA: Yes, I do.

MR PANDAY: Now you see it says Membership Fee?

MR GWALA: Yes, I do.

MR PANDAY: Now you said you were a member in the area of the ANC. Did you have one of these cards?

MR GWALA: Yes.

MR PANDAY: Where is that card?

MR GWALA: It's at home. I do not have it on my person, but I do have a card.

CHAIRPERSON: This card indicates the age was correct.

MR PANDAY: 1934. Now, you see the second card over there, Tumzile? That also shows she was also an ANC member and she is from the Mabasa family. What I'm trying to show you, over here we have some proof to indicate and to back up the story of the Mabasa family that they are ANC members. Would you like to comment on that?

MR GWALA: Yes, I can comment. As I mentioned earlier, the Mabasa family used to reside at eMlanjeni, which was an ANC stronghold. It is possible that they may have taken up ANC membership for that reason, because at a later stage, they were responsible for killing Tumbisa who was Tulani Cele's girlfriend and she was killed for the reason that they could not get hold of Tulani who was a Commander of the ANC, that was why I say it is possible that they took out the membership for the reason that they resided in an ANC stronghold.

MR PANDAY: Now let's talk about Tumbisa. Did Tumbisa live in the same area the Mabasa family lived?

MR GWALA: Yes, they resided in the same area.

MR PANDAY: Did Tulani live in the same area that the Mabasa family lived?

MR GWALA: That's correct.

MR PANDAY: Wasn't Tulani the leader in that area of the ANC, as you say?

MR GWALA: Tulani Cele was the ANC Youth League Chairperson in the area. After the political conflict erupted, the Mabasa family then killed his girlfriend.

MR PANDAY: Why did they kill his girlfriend?

MR GWALA: I can state briefly on the occasion when I came across them when they had captured the girl, on inquiring they informed me that they had captured her because she was a comrade's girlfriend. I mediated in that and I rescued that girl and took her home.

ADV SIGODI: You say it's the Mabasa family that killed Tulani's girlfriend?

MR GWALA: I will say it was the Mabasa family, because on the day that I rescued that girl, the people who were present were the Mabasa girls in the company of some IFP boys, whose names I cannot recall.

ADV SIGODI: So you are not in a position to give us the names of the Mabasa girls who were there?

MR GWALA: I do not know their names, but I can identify them because I spoke to them directly.

ADV SIGODI: That is on the day when you rescued her?

MR GWALA: That's correct.

ADV SIGODI: Now what I want to find out, coming back to the day of rescue, on the day that she was killed, who killed her, Tulani's girlfriend?

MR GWALA: I was not present on the day because she was killed a week after I had rescued her, I just learned about it the following morning. What I heard was that she had been abducted by the Mabasa people from town and later on she was killed.

MR PANDAY: Mr Gwala, at the time you rescued Tumbisa, tell me, were people trying to kill you at that time as well?

MR GWALA: At that time there wasn't any plan to kill me because the conflict was still just general conflict in the area. I became a target after I had rescued her.

MR PANDAY: After you rescued her you became a target? Now wouldn't they have had the chance to kill you same time when you went to rescue her? The IFP boys were there and the Mabasa family.

MR GWALA: When I approached them, some of them fled, I only spoke to one boy and two or three other girls that remained who explained the reason why they wanted to kill her, which was that she was involved with a comrade. I asked them why they did not look for that comrade. I then took the girl, took her to the taxi rank.

MR PANDAY: So if Tumbisa was not involved with a comrade, they wouldn't have killed her?

MR GWALA: I cannot say it with certainty. Nevertheless she resided in the eMlanjeni area and was also a comrade in her own right.

MR PANDAY: Now if I recall your evidence earlier on, you said that the reason they killed Tumbisa was because they were looking for Tulani and they could not find you.

MR GWALA: Tulani Cele?

MR PANDAY: Yes, Tulani Cele.

MR GWALA: Yes.

MR PANDAY: But now you say they killed her because she was a comrade, now which is the reason they killed her?

MR GWALA: I was responding to your question whether they would not have killed her, were it not for the reason that she was Tulani's girlfriend. However on the occasion that I spoke to them, they explained that they wanted to kill her for the reason that she was a comrade's girlfriend.

MR PANDAY: Now on the day you went to attack the Mabasa family, is it correct that you knew who you had to attack?

MR GWALA: Please repeat the question.

MR PANDAY: On the night that you went to attack the Mabasa clan, is it correct that you knew who you were going to attack? Which people you needed to attack?

MR GWALA: Yes, we did have such information.

MR PANDAY: Were you going to make sure that whoever you attacked was going to die on that night?

MR GWALA: As we were looking for Mr Mabasa and the other people who were responsible for perpetrating the violence, yes we were out to attack them.

MR PANDAY: Yes.

JUDGE DE JAGER: So you had definite targets. You were looking for Mr Mabasa and the other people who were causing the trouble, is that right?

MR GWALA: That's correct.

JUDGE DE JAGER: Now who were they? Could you point them out? Who did you want to kill that night? Are they present here so that we won't have any mistake in who you considered to be targets?

MR GWALA: Attackers besides Mr Mabasa were the people who were responsible for perpetrating the violence in the area.

CHAIRPERSON: Who were they? You've been asked to name them, or whether you can point them out.

MR GWALA: It was Mr Mabasa, his sons and his daughters. I can point them out, because I do not know their names.

MR PANDAY: Okay Mr Gwala, once again on the left-hand side is all the Mabasa family that were there, now which ones of them you wanted to attack and kill? Let's start with the four people sitting in the front.

CHAIRPERSON: The three women and the child, there are seven people sitting in the front.

MR PANDAY: Sorry Mr Chairman, I assumed that he'll exclude the other three. Right do you want to point them out? Which one are you talking about?

MR GWALA: The lady in a white hat, as well as the lady behind in a green dress.

MR PANDAY: Mr Gwala, just one second. The lady in the white hat is Sibongile Mabasa, is that correct?

MR GWALA: Yes.

MR PANDAY: Who is the second person you point out?

MR GWALA: The one with the bandage on her arm.

MR PANDAY: With the bandage on her arm, just let me see who you are pointing out.

MR GWALA: And the person next to her.

MR PANDAY: If she could stand, the one with the bandage on her arm, is that the one? Right. I think that is, is that Tumzile? Thabazile Mabasa. Right, that's Thabazile. Who's the third one, the next person?

MR GWALA: The one sitting next to her.

MR PANDAY: Right is that - your name is not Pumzile, no? Pumzile. Right Pumzile Mabasa. Right, the next person?

MR GWALA: The one in the black hat at the back.

MR PANDAY: In the black hat. Your name Ma'am. That's not Jabo? Yes, that's Jabo Nkomo, at that time she was not married. Right that's Jabo Mabasa.

MR GWALA: Yes.

MR PANDAY: Right. Next?

MR GWALA: It was also the father and the son.

MR PANDAY: Right, which is the father? Point the father out. Is that the man?

MR GWALA: I am not certain, he is now grey, I'm not sure whether it's him.

MR PANDAY: That man's name is Fanyana Mabasa, Fanyana Paulus Mabasa.

MR MABASA: Fanyana Mabasa.

MR PANDAY: Now this incident took place, what, nine years back. Right, which are the sons?

MR GWALA: It was his sons, Maningi.

MR PANDAY: Which one is Maningi? You point him out.

MR GWALA: I am not able to point him out now.

MR PANDAY: Right you can't point Mangini - can you point him out? Can you point to the son you're talking about? Can you point the son, Mr Mabasa's son who you're talking about?

MR GWALA: I know the son who is present here, but I am not sure of his name.

MR PANDAY: You're not sure of his name. Was that the person you were going to kill?

MR GWALA: Yes, he was one of our targets.

MR PANDAY: And who was the other person?

JUDGE DE JAGER: You said he is present. Could he stand up, could you point him out so that he can stand up and we can get his name.

MR PANDAY: Sorry, Mr Chairman, is that the son you were going to kill?

MR GWALA: I'm not sure, but I know this other one.

MR PANDAY: Okay.

CHAIRPERSON: Which one is it? Tell us where he's sitting. You say you know he's here, you're not sure of his name. Which one? Where is he sitting?

MR GWALA: The one with the collar.

MR PANDAY: Okay, just have him stand up. What is your name?

MR PANDAY: Ntutula Mabasa. And how old were you then? Is that all the people you had to kill Mr Gwala?

MR GWALA: Yes, those were the people we targeted to kill at the Mabasa household.

MR PANDAY: And they were a threat to your life, is that correct? Were these people a threat to your life?

MR GWALA: Yes, they were a threat.

MR PANDAY: You see, in consultation with Sibongile Mabasa, she says and it's also in her affidavit on page 37, when you attacked the house, and when you saw her father coming, you all disappeared. Now, that's ...(indistinct - mike not on) Now you had a chance to attack and kill Mr Mabasa, but you ran away, now that doesn't make sense. Why did you run away?

MR GWALA: I would dispute that because I do not believe a person would approach a place where there are gun shots going off, besides it was dark, it would not have been easy for him to approach the scene, he would have waited for the gun fire to subside.

MR PANDAY: But wouldn't it have been easier for you to kill him if it was dark? You went there to kill him, but you all ran away when you saw him coming, that doesn't make sense.

MR GWALA: We did not see him on that day, it was dark and it was also misty because there was rainfall.

MR PANDAY: Now ...(intervention)

CHAIRPERSON: If one reads the previous paragraph of Sibongile's affidavit, she said:

Now it seems from what she says there, that this was some time after the shooting had stopped.

MR GWALA: Mr Chairman are your requiring - sorry.

CHAIRPERSON: Have you any comment to make? Did you leave some time after the shooting stopped?

MR GWALA: Firstly, we left immediately after shooting. Secondly, with regards to Sibongile identifying Barney Mabasa, I would dispute that because he was not present.

MR PANDAY: Now do you know that Barney Mabasa and the Mabasa family are related?

MR GWALA: Yes, I'm aware of that.

MR PANDAY: Do you think that they would make a mistake with their relative?

MR GWALA: They made a serious mistake.

MR PANDAY: Why do you say they make a serious mistake? Were you there when they identified Barney Mabasa, were you present, or you had fled?

MR GWALA: I stated as a mistake because I know everyone who was with me on that occasion. I know Barney Mabasa since my childhood days. I would not make a mistake about him, he was not even anywhere near that scene.

JUDGE DE JAGER; This Barney Mabasa, was he a member of the IFP, or was he a member of the ANC?

MR GWALA: At that time when the offence was committed, Barney was a member of the ANC. Later on there was a division within the ANC and they left for Woodyglen area.

MR PANDAY: Wasn't Barney an IFP supporter?

MR GWALA: At that time he was not an IFP member, he was still an ANC supporter. He became an IFP supporter after the incident.

ADV SIGODI: Why did he change?

MR GWALA: There was conflict between the ANC and IFP in the ...(indistinct) are, after which some people fled for the Woodyglen area. However, there developed conflict within the ANC and those members fled to that Woodyglen area. When I was arrested, Mr Mabasa had become a political opponent. We were by that time afraid of each other because of the conflict that had developed because of the two factions and the ANC.

ADV SIGODI: So you knew him before this incident, this Barney Mabasa?

MR GWALA: I knew him since my childhood days. We grew up together in the same district.

ADV SIGODI: What I find puzzling is the fact that he denies that he was present at the killing. Barney Mabasa denies any knowledge and any involvement in the killing. Now why would the killing have any reason for him to change from being ANC to being IFP? How would it affect him?

MR GWALA: It was not that incident that changed his political affiliation. He changed because of what happened within his district, people were divided into two. This took place after the crime had been committed.

MR PANDAY: Mr Gwala, you say that Barney because IFP after the Mabasa family was attacked?

MR GWALA: Yes, if I'm not mistaken, he became an IFP member after that incident.

MR PANDAY: Now on page 27, paragraph 3, this is the typed version of Barney's affidavit, he says the following:

So his membership with the IFP was before you attacked the victims, so you in fact are lying to us here today, or would you say Barney is lying in his affidavit?

MR GWALA: He may be making a mistake because I can dispute it. After my arrest, or after the commission of the offence, they were still residing in our area. After my arrest and after I had obtained bail, they left the area for Woodyglen, that was after they had become IFP members.

MR PANDAY: Who had become IFP members?

MR GWALA: I'm referring to the people who lived in Barney Mabasa's district, the ...(indistinct) districts were now divided.

MR PANDAY: Now your father-in-law, that is Mr Gasa, is that the same uncle of Barney's?

MR GWALA: He is his father's younger brother.

MR PANDAY: Now he was also killed, your father-in-law, your girlfriend's father. Was he also killed?

MR GWALA: Yes, he was killed.

MR PANDAY: And who did you suspect of killing him?

MR GWALA: After his death, the police went to his home and they inquired after me. However, I was at work and they then asked for ...(indistinct) who was at home. They demanded firearms which they did not get and then they started assaulting him. After a day or two, people went to his home and shot him dead. It was suspected that it was the Mabasa people who had shot him.

MR PANDAY: How did that suspicion come about?

MR GWALA: It was for the reason that when the police went looking for firearms, they were in the company of the Mabasa boys, who were also in police uniform.

MR PANDAY: Which Mabasa boy was in police uniform? Are you talking about the one you pointed out, are you talking about that Mabasa boy?

MR GWALA: From the information we received, it was mentioned that it was Maningi Mabasa who was in the company of the KwaZulu police.

MR PANDAY: Maningi, right, now on the day you went to kill the Mabasa family, you were looking for the one in the corner there, that's ..., I can't pronounce his name, but that's the one who stood up, so you won't even know who you were looking to kill on the day.

MR GWALA: Please repeat that.

MR PANDAY: On the day you went to kill the Mabasa family, you knew who you were looking for to kill.

MR GWALA: Yes, I can say we knew who were our targets at the Mabasa household.

MR PANDAY: So did you know the face of Maningi Mabasa?

MR GWALA: He was pointed out to me at some occasion. I had only spoken to the father of the household.

MR PANDAY: No, but my question is that when you went to kill him, you knew his face, because you had made up your mind to go and kill the people that were a threat.

MR GWALA: Yes, at the time I knew his face.

MR PANDAY: But you can't identify his face today?

MR GWALA: It's because of the length of time that has lapsed.

MR PANDAY: Now what I'm confused about is that you mention that you took the decision to kill the Mabasa family, but yet in your papers you say your uncle gave the orders.

MR GWALA: Yes.

MR PANDAY: Now that would mean that you were following orders and not making decisions to kill. That won't fall in line with your reasoning for killing the Mabasa family. Now which was it, were you following orders or were you making the orders?

MR GWALA: I presented my case to my uncle and he is the one who suggested that we should not wait until they attack me, instead we should be pro-active and attack first. when we carried out the mission, my uncle was however not present.

ADV SIGODI: Sorry. Tell me, who was your girlfriend at that time?

MR GWALA: It was Lea Gasa or Mabasa.

ADV SIGODI: So she was related to the Mabasa family, wasn't she?

MR GWALA: I would say they were related for the reason that they had the same surname.

ADV SIGODI: And her father was also related to the Mabasa family as well, that is your father-in-law.

MR GWALA: Yes, I think they were.

ADV SIGODI: Now you say in your affidavit:

Now was the death of your father-in-law a motivating factor when you went to attack the Mabasa family?

MR GWALA: I would say it was not for the reason that they had killed my girlfriend's father.

JUDGE DE JAGER: Could you kindly go slow. She's trying to tell us what you're saying and now both of you are speaking at the same time, so we can't hear what you're saying and it's important for us to hear what you're saying and she's the one who should tell us. Yes, Ms Interpreter, could you interpret what he said?

INTERPRETER; He was still explaining that it was not for the reason that his girlfriend's father, or his friend's girlfriend were killed, that he attacked the Mabasa household.

JUDGE DE JAGER: Yes, could you continue?

MR GWALA: Okay. I was explaining that I did not attack the Mabasa household for the reason that they had been responsible for the death of my girlfriend's father. I was not paying revenge.

MR PANDAY: Now you heard rumours of them wanting to kill you. Were there any previous attacks on your life?

MR GWALA: It once happened in the Jovokazi area and even then it was at night.

MR PANDAY: And did you see anyone in particular who attacked you?

MR GWALA: I could not identify the person because it was at night.

MR PANDAY: Now besides that one attack, were there any other attacks?

MR GWALA: There were people who came to my place of residence looking for me, however I was not at home.

MR PANDAY: Now when you were applying for amnesty, why did you not include these incidents that you talk about, they wanted to attack you? You give the impression in your affidavit that the killing of Tumbisa and your father-in-law was the motivation for the attack, you don't talk about the attacks on you.

MR GWALA: I was of the opinion that I was supposed to explain about what I did, not those instances where I was a victim.

CHAIRPERSON: He does talk of conspiracy to kill him.

MR PANDAY: Very very briefly Mr Chairman, but hinges more on the attacks and murders of the two persons. Now, Mr Gwala, the Mabasa family is convinced that the attack on them, was in no way politically motivated and the only reason they can think of is that there was more revenge for this attack and also that you merely had a criminal element in your mind, or you were a person that was merely a criminal.

MR GWALA: I dispute those claims. I dispute that I was not politically motivated or that I was a criminal, for the reason that I became a target for the assistance I had given to Tulani Cele's girlfriend. Moreover they were aware of my political affiliation because I used to visit Tulani Cele who resided at the same place as they did. It was politically motivated, therefore I dispute that I was paying any revenge, because the people who had been killed at that point, were not even related to me. I was forced into a situation where I had to fight, that is after consulting my uncle.

JUDGE DE JAGER: Why did you fight? Did you fight because you were forced in a situation to protect your own life? Was that the reason why you fought?

MR GWALA: I took the decision to fight for the reason that I was a target and also for the reason that they belonged to a certain organisation.

JUDGE DE JAGER: And that organisation was what you called the Mabasa clan?

MR GWALA: It was a political organisation.

JUDGE DE JAGER: But when you went to your uncle you told him: "Listen, there are rumours going around that these people want to kill me" and you suggested that you should go and talk to them, is that correct?

MR GWALA: Yes, when I approached my uncle, I explained the problem to him and after hearing me out, he was of the opinion that since they had killed these other people, it was obvious that I was next in line, that is why he made the suggestion that I attack them. Moreover on a previous occasion, I had approached Mr Mabasa in town, trying to discuss this matter. However, I was insulted by one of his daughters who was with him on that occasion.

JUDGE DE JAGER: And what did she say to you? How did she insult you? What did she say?

MR GWALA: I am not sure whether I should just state verbatim what she said. She just said that: "This son of a bitch is crazy, let's leave him".

JUDGE DE JAGER: So you had a personal vendetta with this woman who insulted you, you were very cross with her because she insulted you?

MR GWALA: No, I did not hold a grudge against here. After that incident I made another attempt to talk to her when we met in an area called 1 South. At that time, it appeared as if we were resolving the issue.

JUDGE DE JAGER: What issue did you want to resolve? What was the trouble between you and this woman?

MR GWALA: I was talking to them about allegations that they were responsible for assaulting people in ...(indistinct) area. After a couple of days, Tumzile was then abducted. That was on the occasion when I managed to rescue her.

JUDGE DE JAGER: So you didn't resolve this dispute. It went on and then they kidnapped Tumzile, is that correct?

MR GWALA: Yes, it continued until Tumbisa was kidnapped.

JUDGE DE JAGER: And afterwards she was killed in fact?

MR GWALA: Indeed, after about a week, she was killed.

JUDGE DE JAGER: And then you decided that you should do something against these people whom you suspected of killing her.

MR GWALA: Please repeat that.

JUDGE DE JAGER: Did you suspect that she'd been killed by the Mabasa family, or Mabasa clan?

MR GWALA: Her boyfriend learned that she had been killed by the Mabasa family. He even went to the police to inquire from him, but no steps were taken.

JUDGE DE JAGER: And was that a motivating factor for you to attack the Mabasa family, or was the only motivating factor that you heard the rumour that they now want to kill you, or was there any other factor?

MR GWALA: I took the reason to attack the Mabasa household, was the fact that these were IFP people who were out to kill me. After discussing the matter with my seniors, I came to the decision that they should be attacked.

ADV SIGODI: ...(indistinct - mike not on)

INTERPRETER: The speaker's mike was not on.

ADV SIGODI; Who was the leader of the IFP in the area where the Mabasas lived?

MR GWALA: I am not in a position to say who was the IFP leader at eMlanjeni where they resided.

ADV SIGODI: But what position did Mr Mabasa himself have in the IFP?

MR GWALA: I do not know which position he held. I knew him to be a member of the IFP.

JUDGE DE JAGER: How did you come to think that he was a member of the IFP, because they're denying, they say they were members of the ANC. What created the impression that they were members of the IFP?

MR GWALA: What I can state is I dispute that they were ANC members. If they were indeed ANC members, what prompted them to leave eMlanjeni which was an ANC stronghold? Moreover, if they were ANC members, why were they out to kill Tulani Cele who was a Youth Leader in that area of Ekwendeni?

JUDGE DE JAGER: Didn't they flee the area because two children were killed and they themselves were wounded?

MR GWALA: No. I attacked them when they resided at Ekwendeni. Previously they had resided at eMalangeni, which they left.

CHAIRPERSON: You'll be some time with this applicant, won't you?

MR PANDAY: Not too long Mr Chairman.

CHAIRPERSON: Because it's four o'clock now.

MR PANDAY: I can't see myself going on. Just one question to clarify, to finish off with him.

CHAIRPERSON: ...(indistinct - mike not on)

MR PANDAY: Mr Gwala, besides Tumbisa and Tulani Cele, there were other ANC members in the area, isn't that correct?

MR GWALA: Are you referring to the eMlanjeni area?

MR PANDAY: You said the Mabasa family was attacking ANC members. there were other ANC members in the area?

MR GWALA: Yes.

MR PANDAY: Now isn't it odd that the only people you say they attacked was your friend's girlfriend and your father-in-law?

MR GWALA: Please repeat that question.

MR PANDAY: This one family seems to have been a threat to the entire ANC in the area but yet they only attack your father-in-law and your best friend's girlfriend, isn't that strange?

MR GWALA: I was only relating those events that I am aware of, but there are other instances or incidents that took place, for instance Tulani Cele's brother was killed.

MR PANDAY: No but you just said there were incidents that you were aware of, now you're talking about incidents that you were not aware of. You said you related the incident that you were aware of. Now how can you talk about something you're not aware of?

MR GWALA: I do not know about it personally, I heard about it. The incident relating to Tumbisa and Mr Gasa, are those that I was aware of.

MR PANDAY: Thank you. Thank you Mr Chair.

MS MTANGA: Chairperson, I'm not sure how long I'm going to be.

CHAIRPERSON: Very well, we'll take the adjournment now. What time do you want us to commence tomorrow, 9.30?

MS MTANGA: Half past nine, Chairperson.

CHAIRPERSON: Half past nine. Very well, we'll adjourn till half past nine tomorrow morning.