CHAIRPERSON: Good afternoon everybody. I apologise for the late start in this matter. It was due to, I believe, a transport problem in getting the applicants here. It was not the fault of anybody involved in the Commission here, so I apologise. However, we have started.
Before we commence I’d just like to introduce the panel to you. On my right is Advocate Sibongile Sigodi. She is a member of the Amnesty Committee and she is an advocate from Port Elizabeth in the Eastern Cape. On my left is Mr Ilan Lax, also a member of the Amnesty Committee. He is an attorney from Piermaritzburg. And I am Selwyn Miller, I am a Judge of the High Court from the Eastern Cape, from the Transkei Division in particular there. I can assure you this is the biggest chair I’ve ever sat in in my life. It’s very comfortable.
I’d like the legal representatives please to place themselves on record.
MR PADI: I am Thabo Padi, I appear for Mr Tulani Mlaba.
CHAIRPERSON: Thank you Mr Padi.
MR DRAHT: Mr Chairperson I am Heiko Draht from the firm Nel Kotze and van Dyk, attorneys in Pretoria. I am representing Mr Beki Xaba, Mr Alfred Ndlovu, Elias Mbatha and Mr Mpongosi. Mr Chairperson with me, assisting me, is Mr Chris van der Heyde from JH van der Merwe, attorneys.
MR CLAASSEN: Mr Chairman my name is Dawie Claassen and I appear today on behalf of Mr Norman Mandlake Mbatha and further matters, Mr John Ngoyani Sitholo and Joseph Magwaza.
CHAIRPERSON: Thank you Mr Claassen.
MS LOCKHAT: I’m Ms Lynn Lockhat. I appear on behalf of the Commission, and I also appear on behalf of the victims Mr and Mrs Sekonyana.
CHAIRPERSON: Thank you Ms Lockhat.
The proceedings today will be simultaneously translated. In order to benefit from the translation, the interpretation, you have to be in possession of one of these devices. They are available from the technician in the front. All you’ve got to do is just select the channel for the language that you require, and the volume is on the other side.
We will be then starting with the applications. There are two applications set down for this week. The one we will be starting with today is that of Messrs Mbatha, Xaba and Mlaba. I believe there are some submissions or something to be said Mr Padi?
MR PADI: Yes Mr Chairman. It has come to my attention that this, the matter of my client was wrongfully placed on this roll, because he was not involved in the incident that this hearing is relating to, so I therefore request to withdraw this matter from the roll.
MS LOCKHAT: The Commission is aware of that fact, and we do not have a problem in removing the matter from the roll.
CHAIRPERSON: Yes I understand that the reason for it is that in his application he made reference to an incident on the 23rd of January, but it wasn’t this particular incident involving Messrs Xaba and Mbatha.
MR PADI: That is correct.
CHAIRPERSON: Yes, so the withdrawal is not really a withdrawal of an application as such, it’s just a removal from ...(intervention)
MR PADI: That’s correct.
CHAIRPERSON: And then he can be informed that his application relating not only to other incidents but to the one that he refers to on the 23rd will be heard at a later stage, as soon as possible.
MR PADI: Yes, that is correct.
CHAIRPERSON: Thank you Mr Padi. We then remove Mr Mlaba's matter from the roll for today.
MATTER OF THULANI MLABA: AM NO 4400/96 - REMOVED FROM ROLL
MR PADI: Thank you Mr Chairman.
CHAIRPERSON: You may be excused when you wish.
MR PADI: Thank you.
CHAIRPERSON: Mr Claassen?
MR CLAASSEN ADDRESSES COMMITTEE: Thank you Mr Chairman. Mr Chairman maybe I would just like to start just once again indicating that in the matter today before this Committee I appear on behalf of Mr Norman Mandlake Mbatha. Mr Chairman, this application, as the Committee would note from the bundle supplied by the Evidence Leader, I was informed, we had a pre-application discussions the 15th of February this year in the Carlton Centre in Johannesburg with Ms Lockhat during which discussions it came to my attention for the first time that there might be a problem concerning Mr Mbatha’s application, specifically with reference to the fact that TRC might functus officio in this matter, seeing that it appears that he has submitted two very different applications, or application Form Ones, and on the basis of that he was already turned down by the TRC. Mr Chairman if I might just be afforded the opportunity, if I might refer the Committee to those applications, specifically it would be noted, if I may, on page 13 of the bundle, the application dated the 27th of September 1996 ...(intervention)
CHAIRPERSON: Is that September or July? I couldn’t make it out. But it doesn’t really matter.
MR CLAASSEN: It looks like a nine to me, I believe it might be, but it was in 1996. Mr Chairman concerning this specific application, if I might go back to the front page of this application, page 11, there appears a stamp on it dated the 20th of the twelfth month 1996, and ...(intervention)
CHAIRPERSON: That’s the date indicating that it was received by the Commission on that date.
MR CLAASSEN: I believe so, that is what Ms Lockhat also indicated that when the applications are received they do receive stamps like that. Mr Chairman if I may, also on page 8 in the second application which was submitted by the applicant, also dated the 12th, or first if I might on page 20, it is on page 20, this particular application is dated the 26th of eleven 1996, so it appears to be made two months after the initial application. However, on the date, once against on page 8, it appears to have also been received by the Amnesty Committee on the same date as the previous application. Mr Chairman the Committee ...(intervention)
CHAIRPERSON: I think also it needs to be noted as well, that each of the applications was assigned a different amnesty number, registration number. The first one, that is the one dated September, is 4175/96 and the next one is 4348/96.
MR CLAASSEN: That is indeed correct Mr Chairman.
CHAIRPERSON: And it would also seem, Mr Claasen, from looking at the first page of each of the applications, that the information given by the applicant is exactly the same. His ID number, his date of birth, that sort of thing. Except there’s only one slight difference. The one he says his name is Mandlake Norman and the other one he says he’s Norman Mandlake.
CHAIRPERSON: That is my exact submission Mr Chair. It appears that there is this slight discrepancy, just the few names that have been swopped around on the two different applications. Mr Chair just getting back to the, if I may, then just after it appears that this, both of these applications were received on the 20th of December 1996, and on the 19th of March, I think the last document was dated the 20th of March, the 19th of March, the Amnesty application brought out a decision based apparently on these applications, which states that amnesty is denied the applicant on the basis of the fact that the act does not relate to a political objective, and further that guilt is denied.
CHAIRPERSON: It would seem fro mthat page 16, Mr Claasen, that that decision was based on the application with reference number 4175. The September one.
MR CLAASSEN: That is correct Mr Chairman. Mr Chairman I have, I have had an opportunity to speak to my client about this. Maybe just starting at exactly the point I think Ms Lockhat would be gettinh at, is the fact that the Amnesty Committee as such has already made a decision based on two applications that have been submitted. Mr Chair, if I may offer an explanation for this. It is my instructions from my client, I asked him what occurred here, the Committee might, will also notice that the second application 4348/96 is written in Zulu.
CHAIRPERSON: Yes.
MR CLAASSEN: Mr Chair it is my instruction that this particular application was done in the handwriting of my client, was done by my client himself.
CHAIRPERSON: The Zulu one?
MR CLAASSEN: The Zulu one, that is correct. Mr Chair the first application which it is also my instruction the one that preceded the latter one by two months, was, when I asked my client about this, the applicant, he said that they became aware of the amnesty procedure, he was at this stage already serving a prison sentence, he was sentenced, and apparently someone offered to assist him. He said there was a white male in gaol with him who offered him, who offered his assistance in completing this application form.
CHAIRPERSON: A fellow detainee, a convict?
MR CLAASSEN: That is correct Mr Chairman. A fellow convict who offered his services in assisting people and apparently filling out these application forms. Mr Chair if I might just, on page 24 of the bundle, I’d say about half of the last paragraph, B, this is a translation that I believe was done by the TRC of the Zulu application submitted by the applicant. It is, he says
"...I do not know English or Afrikaans that is why I am writing in Zulu."
Explaining the reason for the second one in Zulu. Mr Chairman I took this matter up with the applicant and it is quite obvious that the contents of these two applications are vastly different, in that the first one is, to a great extent, a denial of any involvement, whereas in the second application he clearly states his, his involvement. Mr Chair if I may offer an explanation for this, it’s also instructions from my client that it came to his attention in the time after the first appliation he was assisted by this man, this fellow inmate of his, he said that he was initially of the impression because he was communicating in Zulu and he said that the man that he was talking with in Zulu and English, was alternating between English and Afrikaans, he said there was, appeared to be a gross miscommunication between them. He indicated to him that he did in fact sign it. It is his signature, it is a sworn affidavit, but he said it was, it became apparent to him that there had been a problem with the communication between them and Mr Chair if I understand my client correctly he indicated that I believe someone within the prison authorities alerted, brought it to his attention that there might be a problem with his application relating to the first affidavit submitted, and on the basis of that he decided himself then to write a second application.
Mr Chair if I might just get back to the fact that I believe at this stage it appears quite clearly that the two of these applications were received together by the Amnesty Committee, or by the TRC. ...(intervention)
CHAIRPERSON: On that one, Mr Claassen, it would on the face of it appear that they were received on the same day in that each has got a stamp indicating that it was received on the 20th of December, but it might be so, and I’m not giving evidence here, but it might be so that there were a couple of baskets of outstanding applications that had come in in the past few months that received this stamp dated the 20th of December. So they might not have actually come in, and the fact that the numbers are quite far apart, the one, there’s about 200 numbers between the application, the reference numbers, indicates that they probably were not in the same envelope, opened at the same time, received together.
MR CLAASSEN: That is indeed true Mr Chair. The question which I would like to address, which I think arises from this, is the question that I, that should be asked, is where they, for reasons of purely administrative reasons, dealt with on the same, or at the same time, or had the initial application been dealt with at a time different to that of the second one. It is true as the Committee remarked, and I believe it was also indicated to me by Ms Lockhat, the problem that arose was that it was registered under different names, or different numbers, and the impression was also created that it was two different persons.
Mr Chair what I would like to get at is, I think you also said so yourself, the decision of the Committee I think is purely based on the first one. Obviously if the second one had been considered it would have been different. It is, it is clear from the second one that the appliant does not deny his guilt but indeed admits it.
CHAIRPERSON: There is, look we don’t know exactly what happened but the probabilities are exactly, I agree with you exactly what you say. If one takes a look at Mr Xaba’s application, this is a similar sort of thing, where he’s filled in an application form, and then he’s put in a little affidavit explaining why he’s put in a second one. But if you look at Mr Xaba’s first application form, it’s not a sort of complete denial as the other, which probably is reason for the fact that there wasn’t a decision made there, because there’s no ways that a proper decision can be made in chambers, which involved a gross human rights violation, such as the killing of a person. So one would imagine that the second one where Mr Mbatha says, "...I shot the man", would have been dealt with in chambers.
MR CLAASSEN: Thank you Mr Chair. No, I absolutely agree with you it appears to be the situation. Mr Chair what I’d like to get at is, if I might just, this, the Committee is a quasi judicial body, Mr Chair, and I think as far as the fact per se should we discuss, should we get to the point of the functus officio had the application been dealt with, I think it stands to reason that if a decision is reached based on all the relevant and available facts, and a decision is reached based on that, surely there is very little recourse in later coming, or later bringing the argument that the decision should be looked at again, if all the, all the factors had been considered.
Mr Chair and especially, and referring to specifically that, it is my submission that I think, and as you rightly say, it stands to reason, whether the second one had been considered, and, or had it been considered after the decision had been made, which obviously would have complicated things a bit, if I may, it appears from the application, the way it has been put together, and as you say purely on the face of it, true that it might have been administrative of nature the fact that it was stamped on the same date. Mr Chair I think my line of reasoning would be that the applicant could consider himself extremely unlucky in the sense that he did indeed submit two applications before, if, as I say it stands to reason, the decision was made, and a conclusion was reached based on only one of those applications, the one which does not favour him, or puts him in a position where, ...(intervention)
CHAIRPERSON: The one which basically excludes the granting of amnesty, because it is essentially a denial of guilt, and you don’t grant amnesty to somebody who denies that he’s done something. I mean you don’t grant amnesty to somebody for not doing anything.
MR CLAASSEN: That is true Mr Chairman. As I said, I took this up with the applicant and he said that because of the previous miscommunication between himself and this man that assisted him, he then out of his own decided to bring a further application.
CHAIRPERSON: No we understand this, we understand, but what is the situation? We are a statutory body created by the Act, the promotion of natonal unit and Reconciliation Act No. 34 of 1995. Our powers are derived from the Act. We don’t have any inherent jurisdiction as such. Section 5(e) of the Act says, inter alia, that "...provided that" I’ll read the last, the proviso, "...provided that no decision, or the process of arriving at such a decision, of the Committe on Amnesty regarding any application for amnesty shall be reviewed by the Commission." And then there’s nothing elsewhere in the Act which specifically gives us the power or the jurisdiction to review our own decisions, set them aside, or disregard them, etc. What do you say about that? Would we have any, no matter how compelling a case may be, would we have any power or authority to disregard a decision that, on the face of it, appears to be a final decision, although it hasn’t taken into account all the facts, in that it would also appear that the persons who arrived at that decision didn’t have reference to the second application?
MR CLAASSEN: That is, that is very true Mr Chair. I had a look at Section L but I’ve got the Afrikaans Act in front of me, and it is true what Mr Chair said about the inherent jurisdiction and it is unfortunately that the Committee is compelled to stay within the powers specifically derived from the Act. Mr Chair, all facts considered, it basically boils down to, and as you rightly said, even ‘though a case may be compelling if a decision has been made it makes it very difficult ...(intervention)
CHAIRPERSON: The High Court could set it aside. I’m not saying it would, but it could. It would have the power to do that if it was satisfied that it is a matter in which the decision should be set aside. It might not be satisfied, I mean that would be up to that other forum, but whether we can do that I don’t know.
MR CLAASSEN: Mr Chair as you indeed correctly, I’ve also been informed that I believe it’s Rule 58 of the High Court rules that specifically makes provision for, maybe that would be my ...(intervention)
MS LOCKHAT: Just a correction, it’s Rule 53 in terms of the Supreme Court Rules, not 58.
CHAIRPERSON: The rule 53, yes, the review procedures.
MR CLAASSEN: Pardon me, thank you Ms Lockhat, Rule 53. Mr Chair all said and done, that still remains my submission that I think the applicant is very, and as you rightly said all considerations of this nature taken into account a decision had been made, I feel that the only option left would indeed be to take this matter further with the Supreme Court and maybe if they are of the opinion that all relevant facts had not been taken into account there might be further recourse for the applicant. Mr Chair, I thank the Committee for this opportunity and I would leave it at that.
CHAIRPERSON: Thank you Mr Claassen. Ms Lockhat?
MS LOCKHAT: That’s perfectly in order Mr Chairperson. That’s exactly the same feelings of the Commission, that we functus officio and that rule, section 5(e) applies in this instance. There are remedies available to the applicant.
CHAIRPERSON: Mr Mbatha, we’ve been told by Mr Claassen whose representing you, that the reason why you submitted two applications to the Truth and Reconciliation Commission, it’s clear from these two applications that what was said in each of them was, is different. In the first application, you basically stated that you denied any guilt, any involvement, in the death of the deceased. And in the second application, the one which you wrote yourself in Zulu, you readily admit participating in the incident which led to the death of the deceased.
These two applications which were submitted by you to the Commission, were received and each was assigned a different number. During March of last year, was it March, yes I think it’s March, during March of last year, the Committee, none of us present here, two other Committee Members, arrived at a decision and it’s quite clear from what is before us that they based their decision on the information contained in the first application submitted by yourself, that is application numbr 4175, the application which we have been told you say you were assisted by some other fellow prisoner in filling in, and which was filled in in English which you admit or say that you don’t know too well. The fact of the matter is that a decision has been made relating to the incident which is under consideration at this hearing now. And once a decision has been made, whether that decision is correct or incorrect, if it’s a final decision, and this is a final, was a final decision, the Committee itself cannot reverse that decision, because we do not have the power to do so, the authority to do so.
So that decision must stand until such time that it is set aside, and the setting aside of that decision can only take place in the High Court. That Court would have the power and authority to do so, and it will of course only do so if it is satisfied that it warrants setting aside. If we were to proceed with your application today on the second application that you submitted, namely the Zulu one, and arrived at a decision different to the decision already arrived at, we would be left with the absurd situation of having two decisions on the same matter. One refusing amnesty and another one granting amnesty, and that just cannot happen.
So we are basically prohibited at this stage from proceeding with your matter for that reason. Your only recourse if you were to take further steps would be to have the previous decision set aside.
In the circumstances the only course to be followed is to have your application at this stage struck off the roll, or removed from the roll, let’s put it that way. That means that your application, your second application, the one that you completed in Zulu, will still be with the Truth Commission, and if the standing decision is set aside, if it is, then we will set the matter down for hearing at a later stage. So it’s not the end of the matter, but it might be if the previous decision is not set aside. So your matter is removed from the roll.
MATTER OF NORMAN MBATHA: AM NO 4175/96 - REMOVED FROM ROLL
MS LOCKHAT: Thank your Mr Chairperson.
CHAIRPERSON: That then leaves us with only one applicant in this matter, namely Mr Draht’s client, Mr Xaba.
MR DRAHT: That’s correct Mr Chairperson, I call Mr Xaba in.
CHAIRPERSON: Mr Xaba, do you have any objection to taking the oath?
BEKI XABA: (sworn, states)
CHAIRPERSON: Mr Draht.
EXAMINATION BY MR DRAHT: Thank you Mr Chairperson. Mr Xaba, what is your age?
MR XABA: I am 32 years old.
MR DRAHT: And where are you residing at the moment?
MR XABA: I am in Boksburg prison at the moment.
MR DRAHT: When will you be released from prison?
MR XABA: I will be released on the 1st of the fourth month this very same year.
MR DRAHT: The incident in respect of which you are applying for amnesty now took place in January 1993. Is that correct?
MR XABA: That is correct.
MR DRAHT: Were you part of any political party at that time?
MR XABA: Yes.
MR DRAHT: Which political party?
MR XABA: Inkatha Freedom Party.
MR DRAHT: What was your position in the party?
MR XABA: I was a follower.
MR DRAHT: In your first statement to the TRC you mention that firstly you were a victim of circumstances. Can you please explain what you meant by that.
MR XABA: To briefly explain, the reason is that there was violence between the IFP and the ANC, and it was painful to me because black people were killing one another, so that I also became a pawn of this political conflict. And I, therefore I became a victim of politics, this political game.
MR DRAHT: Your second statement to the TRC was made in full detail. Why didn’t you make your first statement with the same detail?
MR XABA: I would say it is always difficult if something new comes up, like the TRC. It was very difficult for me to know exactly what procedure to follow. I didn’t know one had to be honest and reliable insofar as this is concerned, so that it was not easy for me to do the right thing, up until I was assisted the legal people, that is on the second statement, to rectify the previous mistake.
MR DRAHT: Were you approached by a lawyer when you made the first statement?
MR XABA: If I still remember very well there is one statement that I made in solo whilst I was in prison, filling in these TRC application forms, and the prison authorities signed it in gaol in Pretoria. But then I was not sure whether it was sent through until such time that I requested Mr Msizi to come to discuss this with me. We had a discussion and he brought another legal counsel. Yes we did the first statement even ‘though I cannot recall whether it was sent through or not. I cannot remember quite well.
MR DRAHT: Can you please explain then to the Committee what happened on the 23rd of January 1993.
MR XABA: On the 23rd January 1993 my brother-in-law came, I’m talking here about Gumene, and he said to me that we would have to go to a funeral, a funeral where a certain Khumalo lady was to be buried. I refused because I was not prepared to go there, I had some other things to do. But he came back for the second time to ask me. He requested me and he said that it was a problem at Ngaki, and it seemed as if the ANC people were toyi-toying trying to stop us from going to the funeral. I did not have assurance about that, because I don’t know whether he went there himself or not, and I instead said to him we had to verify that, the only way which would be to go there personally.
I took my vehicle and I said he should come along, and we drove to the place. We took a street called Tshabalala Street, which would lead us to Ngaki Street, and as I was about to take my left turn I realised that it was bad. The road or the street was barricaded.
MR DRAHT: What kind of car were you driving at that particular moment?
MR XABA: I was using a white Cressida, a four litre.
MR DRAHT: And were you alone in the vehicle at that time?
MR XABA: No, there were two of us.
MR DRAHT: Okay, you can proceed.
MR XABA: We then proceeded and we saw the people who were toyi-toying and I approached them and the street was barricaded with drums and a whole assortment of things. And I would say that I was known quite well by the youth in the township. I got off the vehicle and went to a group of people to enquire as to what was happening, and they fully explained to me that they were trying to stop the IFP from burying their Umhlembwe, and I said to them are they, are you referreing to the Khumalo funeral and they said that’s indeed so, and I enquired as to why they were stopping this because this person was a resident of the township, and they said no her husband is involved in the killing of people in the township. And I said, look this is bad, because this person has to be buried today. Would you like it if you are not given a chance to bury your own, and that didn’t help.
And then I went back to the car and told my brother-in-law that look it’s bad, we would have to go back, and inform the indunas. I must say that my brother-in-law was the one who was older than myself and therefore had the authority to communicate to indunas. We then thought that it would be better to inform the indunas and the police, but then my brother-in-law suggested that we would not able to readily get indunas, and he suggested that we speak to the police. And them we went to Myame where we found Mr Wessel and other police. I then went to Wessel because my brother-in-law could not communicate with him in English. I spoke to him and told him that we have come across a situation, and to avoid the spilling of blood we would have to try another route between the two streets, Khumalo and Ngaki. Indeed Mr Wessel promised us that there would be no conflict, he would try to bring in soldiers as well as the police, or the stability unit, and he said that we were no longer going to use the designated route, which was Khumalo Street.
We thanked him and we drove back, and on our way along a place called Madlala, and I said to my brother-in-law maybe you should go to the funerals to monitor the situation, and as I was talking to him it occurred to me that we experienced a similar problem in 1991, and I felt bad about that, and I then said to my brother-in-law look I am not going to do what I wanted to do earlier on, I will rather attend the funeral instead. And he said to me, listen, you will drive my car, it’s parked over there and there are people inside. I will take your vehicle and use it, because I will not go to the funeral. And I said to him, that being the case, it’s okay, and I wanted to know from him who were in the car, and he said there are certain men whom you don’t know, and he said it’s okay, I’ll meet you in church. And the funeral procession proceeded through Khumalo Street. I trusted that everything was okay because the police and the soldiers were present. We would not experience what we experienced before. And we proceeded.
I was in front of the vehicle that was carrying the corpse, and next to me was a United Nations vehicle that was being driven by a white person. We proceededwith no problem. I only anticipated a problem when we reached shops at Ngaki. I’ve just forgotten the name of the street, that is where we found people standing on either side of the road carrying stones. We drove past these people and there were no bad remarks coming from these people, but then I had a feeling that something might happen, but as we proceeded on nothing happened until we reached a spot where we were attacked for the first time.
And when we crossed the street the funeral was, the funeral procession was continuing with Amabuto following from behind, and it’s one white man who stopped me and he said, "...Please stop because it looks like some people have been shot from behind." And I asked him as to whether these people were within my group, and he said yes, one is injured.
And we were ordered to sit down to pay respect and we indeed sat down to pay respect, and I parked my car on the side of the road. And later on they said we can continue. We then proceeded on. I was also in front and we came across a certain Mokoena Street, if I’m not mistaken, near a stadium, that’s where I met a group of Amabuto who had come from Qwesini and Boiafuti, and I hoped that they had no problem with the route that they took. We then went on, but I must say that this one United Nations guy was always next to me as we were travelling, and I was always with the people in this vehicle.
We went on and I must say that I came across a certain place where I really experienced problems. The road was barricaded and there was no exit or escape route, and I said to these men please let us get off the vehicle to remove the barricade, and they said no, we might be shot. And I said to them if that will happen, let it be, we have to bury this person. Yes, these men were brave enough to agree with me, and they got off the vehicle, and this one white guy was also brave enough to assist us in removing the stones and all the barricade. And as we were removing the stones one white guy who was quite hefty, in the company of a black guy who were coming from the township. One of them was wearing a brown overall, and this white man was wearing a jean and a shirt, I cannot remember the colour of the shirt of course, and he said, he passed very disturbing remarks. It was very difficult, I did not talk back, but I realised that things were now bad and these men were saying today is the final day, and that on its own told me or suggested to me that things were bad. Because one could realise that a fight could break out at any time. And there had come also this taxi vehicle, or taxi squad patrol vehicle, and unfortunately there were soldiers who were on either side of the road, walking parallel with the funeral procession. The soldiers are the ones who tried to solve the problem, and at the same time Mafulela Mlaba came along, coming from the opposite direction and he stopped at the road and he said that my brother-in-law wanted to see me, he wanted me to bring back the vehicle, and I said to him I will come. I just said to him, brother I will come, it’s okay, and I said to him I wanted to see what was happening because at the same time we were trying to remove the barricade from the road. Four to five minutes must have elapsed and Mr Mlaba came back again, and this time he reprimanded me saying that my brother wanted the vehicle, and I asked him where my own vehicle was, and he said he didn’t know, and at that very same time I told these other men to come along.
I left the funeral and rushed to where I was being called. It was not quite a distance from where we were, but then one could not see the place from a distance because one had to go through a bend, and as I drove past the bend I could see the three vehicles that were parked there, one of which was facing Polla Park, and there was also these police vehicle on the spot."
MR DRAHT: Just a moment there, what vehicle did you drive then?
MR XABA: I was using this old model Cressida, the one that belongs to my brother-in-law.
MR DRAHT: Okay.
MR XABA: There was also this white Peugeot, which was parked on the side of the road, and there was also a red Colt which belonged to Mazibuko. It faced an opposite direction to that which I was, to the vehicle which I was driving. I parked this vehicle next to Mazibuko’s vehicle. The white Peugeot also belonged to Mazibuko. We had two Mazibukos. The red one, vehicle, also belonged to another Mazibuko whom I think is related to the other one. I parked this vehicle next to the red motor car, so that my brother-in-law then said to me that I should drive the white Peugeot that belonged to Mazibuko, and I wanted to know from him where my vehicle was. He did not answer me. I left him like that, because it was in his nature not to answer questions promptly. I took it then because I knew his nature."
MR DRAHT: Why did you want to know which, why did you want to know where your vehicle were, if you were driving in it?
CHAIRPERSON: Sorry the evidence isn’t that he was driving it Mr Draht. The evidence is that he was driving in a white Cressida which was his brother-in-law’s vehicle.
MR DRAHT: Okay, you can proceed.
MR XABA: After asking him that, he just kept quiet. He took the vehicle and he said the people who were in the vehicle in which I was travelling should come with me into the white Peugeot. Indeed the people responded by getting off the car to join me in the other motor car. This other vehicle which I was supposed to drive now this time, had a problem with the ignition, and when I got there I engaged the first gear but it just couldn’t move, it just, the ignition just went off. They tried to push the vehicle but I just couldn’t manage to get it started. And as I was standing there wondering what to do next, Mazibuko came. I just saw him standing next to me, and he offered to help me, saying that he knew his brother’s vehicle quite well. We then helped push the vehicle and it got started, and when I was just about to take the steering wheel he said, you should take my vehicle because the engine was running, but don’t get it switched off because you’ll have a problem getting it started again. He said I should use that vehicle, the engine of which was running, so that I could be next to the funeral procession. Yes, he got into the vehicle and he left. I then went back, I just cannot recall how many occupants I had in this vehicle this time.
CHAIRPERSON: Now are you in the red Colt now?
MR XABA: Yes.
CHAIRPERSON: I think when you refer to it, refer to it as the Colt, so we don’t get confused between Peugeots, Cressidas and Colts.
MR XABA: Okay. Thank you.
I then went to this Colt even ‘though I cannot remember how many occupants were inside. The one person that I can still remember is the one who was sitting on the passenger seat, and I also discovered later that it was Mr Dlamini. Others got at the back and they explained and said, hey man you have to drive for us, we take off from this place immediately because there is some place we have created trouble, and I answered back and said that’s no problem, and they insisted and were adamant of the fact that I should drive. Indeed I drove for I had no other any alternative. I therefore decided to help by means of driving. As I was trying to put the gears into the first gear a fawn Cressida approached right at the time, so it was a bit cumbersome for me to take a U-turn at that point in time, and the funeral procession was very close at the time. As I was still waiting for the Cressida to pass I saw soldiers emerging from the right-hand side. There was a garage under construction at that time, and they approached and got to us, and said I should stop, and I decided to stop.
I decided to stop and I alighted from the car, and as I was alighting from the car I did not take any notice of anything. I stood around next to a certain pole and they took, they told, instructed the occupants of the car to get off and out of the vehicle, and they did. And I discovered that they found and discovered guns from some of us, some of the occupants of the car that is, and they went on searching the car. One other soldier came to me and asked if I was with them. I said yes, and he instructed me to lie on the ground and they searched me as well, and they found nothing.
Then they took myself and Mr Mbatha into one Casper and the others, they separated us in other words. The next time we met as a group was in the police station. That’s how I got arrested or was apprehended."
MR DRAHT: You testified that when you, before you got into the Colt, the people told you that they created trouble. Did they tell you exactly what they did?
MR XABA: They did not fully explain and elaborate on that issue. There was no time to keep asking questions and to expect of them to furnish explanations. There was no point at that time, especially the situation that was prevailing was not conducive for us to sit, rest, and offer explanations. When, or as soon as they said they had created trouble, I sort of understood as to what it could have been, and there was no time for them to fully explain.
MR DRAHT: What did you understand it to be?
MR XABA: In my mind, what occurred were two things. Because of the situation that prevailed at the time, I first of all thought it could have well been that they shot somewhere and somehow, or they could have killed a person. That crossed my mind as well. But as for them killing a person, they did not strike me as people who were capable of such an act of violence, of going to an extent of killing a person. As soon as they said we should rush, I took it upon myself that we should do just as they have instructed because we had to run away and get out of the sight of the police, because as soon as the police will approach they will definitely arrest. So that if they only said we should run away as such, without me suspecting them, I could have taken my time doing so, but the way they emphasised and the way they displayed themselves, I felt it’s a matter of emergency and I should take off as soon as possible.
MR DRAHT: Did they say that they shot an ANC member?
MR XABA: Not exactly at that time ‘though, they only said this subsequently when we were already arrested, as to the trouble that they had caused, that they shot one of the ANC people in the area. That also did not bring any surprises to me. I was not surprised by that at all, but I deemed it fit that as they have already explained to me I must also fit in the bracket.
MR DRAHT: Why would you say that your actions were political motivated?
MR XABA: For me to put this in a more clear way, I will try to bring as full a picture as possible of the situation that prevailed at the time between the ANC and IFP. I don’t know ‘though how to approach this in an attempt of, to explain it to you. There were, there was violence that erupted in the area and the situation was volatile. And it was so also said that since there was that funeral of Mrs Khumalo there will be trouble that day, and I also asked from one of the people and I got a clear picture, you will not attend the funeral, not being the group member. And there is also this saying that says, I don’t know, idiomatic expression that say once beaten twice shy. I had to be alert about the day of the funeral, and I did expect that violence would erupt that day in question, and the people who were preventing us from other things were ANC people, and I knew very well that whatever actions will be taken that day will be as a result of the ANC people because they were always against and opposing us as IFP group. So this is part of that political strife that existed at the time, and the way things happened at the time.
MR DRAHT: You were later on found guilty as an accessory to murder because you drove the vehicle in which the murderers got away from the scene. Is that correct?
MR XABA: Yes. I assisted he murderers.
MR DRAHT: And when you assisted them did you know that they were the murderers of a certain person?
MR XABA: As I explained earlier on, at that particular point I had not, I bore no knowledge of that, I did not know anything to that effect. To an extent that at the Court of law I did hide the fact that I was already made aware that they had murdered, but subsequently I got to know fully, and I realised what a mistake I have committed by protecting them at the Court of law. I think I should have disclosed of all the truth at the Court, but unfortunately did not happen that way, and that’s all I would say that I had limited knowledge at that time, but subsequently I got to know of all the facts.
MR DRAHT: Did you know the person that was killed that day?
MR XABA: As I said, I did not know the person, and I had not met the person or with the person, although I’m not sure if I ever once came across the person. I did not know that particular person.
MR DRAHT: Did you later on find out who was it?
INTERPRETER: Please repeat your question.
MR DRAHT: Did you later on find out who was killed that day?
MR XABA: Yes, that was after they had told me, these other colleagues of mine told me at Court. They also told me when charges were pressed I was told as well that it’s one of the people in the area that I did not know fully well.
MR DRAHT: Thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR DRAHT
CHAIRPERSON: Thank you Mr Draht. Mr Padi, your client’s name was mentioned here. Any questions you want to ask?
MR PADI: I have no questions to ask.
NO QUESTIONS BY MR PADI
CHAIRPERSON: Mr Claassen, representing an interested party in these particular ones at this stage do you have any questions?
MR CLAASSEN: Thank you Mr Chair, I’ve got no questions.
NO QUESTIONS BY MR CLAASSEN
CHAIRPERSON: Ms Lockhat do you have any questions you’d like to ask?
CROSS-EXAMINATION BY MS LOCKHAT: Yes Mr Chairperson, thank you. Mr Xaba, were you a member or a supporter of the IFP?
MR XABA: I was a member of IFP.
MS LOCKHAT: A member. A registered member?
MR XABA: Yes.
MS LOCKHAT: I believe on that day of the funeral there were 2 000 to 3 000 people present. Why did you say you didn’t want to attend the hearing, if it was such an important day for the IFP?
CHAIRPERSON: You mean funeral, you said hearing.
MS LOCKHAT: Sorry, excuse me, at the funeral.
MR XABA: Please repeat the last part of your question again.
CHAIRPERSON: The question was why didn’t you want to attend the funeral, particularly taking into account the fact that it was such a large funeral.
MR XABA: Firstly I would say that it was not necessary, that’s the way I looked at it, for me to attend it and I did not as well think it was such a big event or funeral. Secondly, I had other engagement and appointment that I had to attend to, to go fetch a child somewhere. But after I realised that it would have been, it would be appropriate for me to attend the funeral, I then figured I should postpone the fetching the child, or go around it, and attend the funeral. So that I had other committments that I had on that particular day, not that I was coerced or expected as much to go to the funeral.
MS LOCKHAT: You mentioned Mr Mazibuko was the person that told you to swop cars. Is that correct?
MR XABA: Yes, he’s the one.
MS LOCKHAT: What did he tell you? What was his words when he spoke to you? Did he give you a reason why?
MR XABA: His words would be, go and drive my car, this one will be easy for me to drive since it’s my brother’s car, but mine has a minor problem, very minor as compared to this particular one, I assume you will be able to drive it with less problems than this one. So that as a driver I had confidence in myself that I would be able to find my way and kney my way in that car. And we were going to the funeral.
MS LOCKHAT: Did he tell you, you know, that the people in the car had committed an act and you were to help them out and assist them?
MR XABA: No he did not make mention of that fact, he only said go and drive there. I think he had hoped that they will tell me, they will take responsibility and tell me.
MS LOCKHAT: You said that you understood that it was a matter of urgency, and that you had to escort the people out by driving the vehicle. Is that correct?
MR XABA: Yes, that did cross my mind, although I had not, or I did not have a clear understanding as to where it was stemming from. You see when a person tells you that this is the situation and please drive immediately ...(indistinct) and leave the area, I took it that way, but they were not as harsh, if I may say. They were also not forcing me, or exerting any pressure as such, for me to rush, but still I would have done it at any rate. However, they, I, they had this request of me to rush and leave and drive off immediately. I did as they instructed. It did not occur to me that I should immediately now leave the area.
MS LOCKHAT: So is it correct that your intention was just to drive persons, and just to be a driver in that sense?
MR XABA: After I was inside the car and they told me that, that became now my intention, to transport them from this point to the next. And I did not know as to what they would say further on our way, but they had not said a thing at that point in time, they only said let’s drive immediately because there’s something that we’ve committed.
MS LOCKHAT: My next question is just to your amnesty application, page 2. You just, where, it’s paragraph 10, the, your justification for regarding such acts, ommissions or offences as associated with a political objective. You said there,
"...in fact I don’t understand but the Judge convicted this case and made it clear that the case concerned is political."
Is it to your knowledge that you don’t understand, that according to you it’s not really political in your case?
MR XABA: Are you asking a question or, I don’t quite understand?
MS LOCKHAT: I think I just, just looking at this, it says here justification for regarding the act as political, you said you don’t in fact understand, but the Judge at Court actually said that you know this was related to politics. But do you think that this matter, you being the driver of the vehicle, did you see your act as political, and that you were furthering the cause for the IFP?
CHAIRPERSON: Don’t you want to ask him what he means by those words before you put words in his mouth?
MR XABA: Maybe I’ll have to explain or elaborate on this issue, especially what you’ve made mention of now. According to me on that day, even today, I will like to reiterate this fact, that what happened, what I did, was political. First of all, they my colleagues that had to be assisted that day, were IFP members. What makes me to say this, it is because those were people who were always following Mazibuko. This must be referring to as the owner of the Colt and he was as well IFP member. So that when he had told me to go to his car, it did not occur to me to question any further. I only went there since I knew he was IFP as well. I was offering help to these people and in the Court I felt the same way and also shared the same sentiments with them as well. And those are things that happened and they remain like that.
MS LOCKHAT: Thank you. In your affidavit, page 6, at paragraph 20, you said
"...I was quite amazed by the fact that I was arrested. I did not know what I had done."
Kindly explain that.
MR XABA: With reference to that then, maybe it would require of me to find out as to which application are you talking about. Could it be the third or second one? So more light could be shed on my search.
CHAIRPERSON: Perhaps, you signed an affidavit Mr Xaba on the
MS LOCKHAT: 12th December 1996
CHAIRPERSON: the 12th December 1996, while you were in prison at Zonderwater. Perhaps if you can take a look at my documents you can, you might recognise the document when you see it. That’s the first page of the affidavit. It’s about three or four pages. If you look on the fourth page, which is numbered 6(a), over one more, one more, go over, that’s it. There’s your signature, is that right?
MR XABA: Yes, it is mine.
CHAIRPERSON: And what you’re being asked is do you recognise this. Take a look at paragraph 20. See the beginning of paragraph 20, they’re only short paragraphs, where you say you can’t understand and the rest of it.
MR XABA: Yes Mr Chairman.
CHAIRPERSON: Now what Ms Lockhat is asking you is can you explain that. Why did you say that in your affidavit when you now say that, you know you realised that you were assisting people who had done something wrong?
MR XABA: In actual fact, with regards to that, when I was arrested I did not know at that particular point in time why we’re being, I was being, arrested. Subsequent to that I was told by them as to what act they had committed previously, so that at that point in time I did not know until when the charges were pressed against us that there was one person who was murdered. I did see the firearms or the guns ‘though, although they did not find any in my possession as such. This is why I’m saying this, because it was confusing at the time because I did not know what had happened, especially that they did not see or find any firearm in my possession, but subsequently I got to know since they told me, then I knew, although I was still in a state of confusion.
MS LOCKHAT: Thank you Mr Chairperson. No further questions.
NO FURTHER QUESTIONS BY MS LOCKHAT
CHAIRPERSON: Mr Draht do you have any re-examination?
RE-EXMAINATION BY MR DRAHT: Mr Chairperson, yes please.
Mr Xaba, the Chairperson asked if Mr Thabo wants any further questions, because mention was made of his client, Mr Mlaba. To which Mlaba are you referring?
MR XABA: There’s this one gentleman, if I’m not mistaken, his name is Alfred Mlaba, but we used to refer to him as Mafileka. That was the common name used.
MR DRAHT: Is he a relative of you?
MR XABA: No, not a relative.
MR DRAHT: But you didn’t refer to Mr Tulani Terence Totsetse Mlaba, the third applicant?
MR XABA: No, I’m not referring to that one. I only knew Tulani after his arrest in 1993. If I’m not mistaken it would be between January, end of January and the beginning of February. I did not know him prior to that, or before that.
MR DRAHT: Thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR DRAHT
CHAIRPERSON: Thank you Mr Draht. Ms Sigodi do you have any questions you would like to put to the witness.
ADV SIGODI: Just one aspect Chairperson. You say that when you got into the car nobody told you what they had done. Did I hear you correctly?
MR XABA: Yes.
ADV SIGODI: And you just thought that something had happened.
MR XABA: Yes, I thought on my own because I could tell from the situation.
ADV SIGODI: Now can you look at your affidavit which you made, the second affidavit, which ...(intervention)
CHAIRPERSON: That the same one? Not the same affidavit?
ADV SIGODI: No.
CHAIRPERSON: Just give him the page number.
ADV SIGODI: On page 8.
CHAIRPERSON: Turn to page 8 Mr Xaba. You see the big numbers in the corner, top, turn to page 8. That’s 5 you’ve got there, 15, turn back. Mr Padi could you help him please, thank you. Page 8. Can you read Mr Xaba?
MR XABA: Yes I can read.
ADV SIGODI: If you look at page 10 of that.
MR XABA: You mean I should read from the beginning?
ADV SIGODI: No.
MR XABA: Which number then?
ADV SIGODI: What I want to ask, if you look at page 10 of that affidavit, is that your signature on page 10?
MR XABA: You mean right on top, yes I see it now.
ADV SIGODI: Now if you look at paragraph 4 of that affidavit, that is on page 8. Have you got that?
MR XABA: Yes.
ADV SIGODI: You say that my motor vehicle stalled on the road and Mr Mazibuko came to my assistance. Whilst he was helping me with my car he told me that they shot a member of the ANC and that the police are looking for them. Now, today you tell us that you did not know what they had done. This is something that you thought. Is there any reason why you are concealing this fact from us today?
MR XABA: I think what happened here was, or stemmed, merely from ...(indistinct) because it was not myself who wrote here. I think there’s got to be some mistake in relation to that, especially the way it happened, it’s confusing even to me because I never even reviewed the statement.
ADV SIGODI: So what is the true state of that? Which version do you want us to believe?
MR XABA: It’s what I’ve said today, earlier.
ADV SIGODI: Thank you Chairperson.
CHAIRPERSON: Mr Lax do you have any questions.
MR LAX: Just one question Chairperson. Mr Xaba who wrote this statement for you? This has been typed out. Was it not your lawyers?
MR XABA: It is true, I think it is the attorney, my attorney rather, who wrote it.
MR LAX: Didn’t your attorney come with an interpreter to the prison?
MR XABA: He did come with an interpreter.
MR LAX: Well then how could there be such a communication problem as you’ve just told my colleague, Advocate Sigodi?
MR XABA: I think I’m most unfortunate because even this happened earlier on when I was being arrested. I think I’m just unlucky person. I’m one unlucky person. You see I will tell someone, the second person something, and the way it will be related to the third person, it will be totally different from what I initially said to the second person, so that chain of communication, that’s where the problem will emanate from.
MR LAX: Thank you Chairperson, no further questions.
CHAIRPERSON: Mr Xaba when you got to the red Colt, was the driver’s seat empty?
MR XABA: Yes it was empty. There was only this person in front, sitting on the passenger seat in front.
CHAIRPERSON: Did, do you know Mr Mbatha and Mr Mlaba, your co-applicants?
MR XABA: Now I know them yes, but before I was already saying that I don’t know them.
CHAIRPERSON: Do you know whether any of them can drive, or if anybody else in the car at the time could drive?
MR XABA: ...(no translation)
INTERPRETER: The interpreter has a technical problem. I can barely hear the speaker.
CHAIRPERSON: Sorry, could you please repeat your answer Mr Xaba, the interpreter couldn’t hear what you said.
MR XABA: I had no idea at the time as to whether any of them could drive, but as for Mlaba, was not even there, according to my knowledge. Because the people who were in the car, I knew them, I saw them.
CHAIRPERSON: Sorry, that’s my mistake, he wasn’t there. You see, you paint the picture of these four, these people that were, other people that were in the car were in a drastic hurry, they wanted to get away as soon as possible, and yet they’re sitting in a stationary vehicle with no driver. They must have been sitting there for at least some time before you got there. Who was driving that Colt before you got to the Colt?
MR XABA: The owner was driving the Colt, to my knowledge, because it did overtake me on the way at some point earlier on, and the driver was the owner and I knew the owner.
CHAIRPERSON: Was that Mazibuko?
MR XABA: Yes.
CHAIRPERSON: And when you saw him driving the car did it have Mr Mbata and the other people you found in the car, in it, at that time when he was driving it?
MR XABA: Mr Chair it’s a bit difficult for me to say, because yes it did pass at a very high speed. I could not see as to who were the occupants as it was overtaking. I also did not take notice of the fact whether I knew any of them. I did see the driver, the owner.
INTERPRETER: The speaker’s microphone is not on.
CHAIRPERSON: According to my notes here while you’ve been, just bear with me, when you were being asked questions by Ms Lockhat here, you said, and this is my note, "...all they said," you’re talking about the people who you found in the red Colt, "...was let’s drive immediately, there’s something we have committed." Is that right?
MR XABA: Yes, it is so.
CHAIRPERSON: Well who said that? You said they said that. Were they all reciting it like little children in primary school?
MR XABA: No Mr Chairman, it could have been like that you see, you see that’s how we express ourselves when we talk and say they and refer to them as they, ‘though it was one person. It was singular not necessarily plural, but the person who said that was sitting at the back. I couldn’t have recognised as well as to whose voice it was, and I only heard this voice saying that. It was not of prime importance as well to turn and see or ask as to who was saying it, but it was only one person, to cut this whole story, it was only one person.
CHAIRPERSON: Mr Draht do you have any questions arising out of questions that have been put by members of the panel?
MR DRAHT: No Mr Chairperson.
NO FURTHER QUESTIONS BY MR DRAHT
CHAIRPERSON: Mr Padi, Mr Claassen any questions arising?
MR CLAASSEN: No questions your Honour.
NO QUESTIONS BY MR CLAASSEN
MR PADI: No questions.
CHAIRPERSON: Ms Lockhat any questions?
MS LOCKHAT: No questions Mr Chairperson.
NO FURTHER QUESTIONS BY MS LOCKHAT
CHAIRPERSON: Thank you Mr Xaba, that concludes your testimony. You may stand down.
WITNESS EXCUSED
CHAIRPERSON: Mr Draht.
MR DRAHT: Mr Chairperson are you of the opinion that we must proceed with the rest of the applicants today?
CHAIRPERSON: This is just relating to this. Do you have any other witnesses to call in respect of this particular incident at the Khumalo funeral?
MR DRAHT: No, there’s no witnesses.
CHAIRPERSON: So this is your applicant’s case concerning the incident on the 23rd of January?
MR DRAHT: That is correct Mr Chairperson.
CHAIRPERSON: Ms Lockhat?
MS LOCKHAT: Chairperson we have Emily Sekonyana, that is the deceased’s mother with us, and I’ve spoken to her and her feeling is that she opposes the amnesty application. She was not at the scene of the incident, but I could call her just to give, but I don’t know how much further it would take the matter.
CHAIRPERSON: I think on this particular application that we have before us the role played by Mr Xaba was certainly not a direct role, and, in relation to the killing, unfortunate killing of the deceased. If you want a short adjournment just to speak to her before, but it might be more appropriate if she wants, wishes, to say something, if there is another hearing at a later stage in respect, that stage.
MS LOCKHAT: I shall inform her.
CHAIRPERSON: But if she wants to, you know we can hear her.
MS LOCKHAT: I think we should just adjourn then for.
CHAIRPERSON: Let us take a short five minute adjournment while Ms Lockhat just consults with the victim’s mother. Arguments when we come back Ms Lockhat.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Ms Lockhat?
MS LOCKHAT: Chairperson I have communicated with Ms Emily Sekonyana, and it’s my instructions that she will not testify and that she will leave the matter in the hands of the Committee. Thank you.
CHAIRPERSON: Thank you Ms Lockhat. Are you in a position to address us.
MR DRAHT: I’ll address you Mr Chairperson.
CHAIRPERSON: Thank you.
MR DRAHT IN ARGUMENT: Mr Chairperson, it is clear from Mr Xaba’s evidence that he was a member of a political party and also clear from the background that there had been political turmoil in that region. Regarding the incident where Mr Sekonyana was shot. He didn’t know who was shot at the time. He recognised Mr Mazibuko ...(intervention)
MS LOCKHAT: Excuse me Mr Chairperson. The interpreters are not in the booths yet.
CHAIRPERSON: Are they ready now?
INTERPRETER: Yes, we’re ready.
CHAIRPERSON: Thank you. Mr, just for the interpreters’ benefit, Mr Draht has just commenced his argument in this matter, but before he commenced it was indicated by Ms Lockhat that the victim’s mother Ms Sekonyana has decided that she will not make any submission, or make any statement, before us, and she will abide by the decision of the Committee. Mr Draht in his argument has submitted that it is clear from the evidence that Mr Xaba was a member or supporter of the IFP and that there was at the time in question political trouble in the area concerned. If you can just proceed from there Mr Draht.
MR DRAHT: Thank you Mr Chairperson. Mr Chairperson, regarding the incident where Mr Sekonyana was shot, Mr Xaba didn’t know who was shot at the time, but he recognised Mr Mazibuko at the red Colt, as being an IFP member. He wanted to help them, being IFP members, and they informed him that they have trouble, and they requested help from him. His motive was political. The context in which he acted was also political. He was later on convicted as an accessory of murder. It’s clear that he acted upon the request of Mr Mazibuko, and IFP member, and that he reconciled himself with whatever acts that members of the IFP committed. That will be all Mr Chairperson.
CHAIRPERSON: Just before you conclude, Mr Draht, so that is on the one requirement, political objective. The other requirement is full disclosure. Do you submit that there has been a full disclosure on the part of your client?
MR DRAHT: Mr Chairman it is my submission that, I’m sorry, Mr Chairman it is my submission that Mr Xaba disclosed everything. There might have been a problem, as he himself indicated, with the taking of the statements.
CHAIRPERSON: What about the evidence that you’re referring to where he says in the statements that somebody said we’ve shot or killed a person, an ANC person, whereas here he said that nothing like that was actually said. The point put by Advocate Sigodi in questions that in the statement he said that Mr Mazibuko mentioned something about them being involved in trouble, whereas now he said no. ...(inaudible) those contradictions.
MR DRAHT: Mr Chairperson I will leave that in the Committee’s hands as to what Mr Xaba testified regarding that.
CHAIRPERSON: Ms Lockhat do you have any submission?
MS LOCKHAT IN ARGUMENT: Chairperson on the facts before us, it is clear that Mr Xaba was not a party to the planning and execution of the killing of Philemon Sekonyana. It seems he was unfortunately a victim of circumstances. He was merely a driver in the incident, and had no intention of furthering the aims and objectives of the IFP. One of the requirements of the granting of amnesty in terms of Section 20(b) is that the act, ommission or offence to which the application relates is an act associated with a political objective committed in the course of the conflict of the past, and it is my submission that Mr Xaba did not do this by political motivations. He was merely assisting, and on the fact presented by Mr Xaba, he was merely the driver and assisting people in getting away from a scene or an incident. The fact that he ...(intervention)
ADV SIGODI: What do you say about the fact that there was political unrest, there were police and, you know, there was this big funeral and there was all this tension between the ANC and the IFP and that this whole thing arose amidst that political tension, that situation?
CHAIRPERSON: This might be what Advocate Sigodi’s referring to is Section 23(b). It shall be decided, whether it’s a political objective shall be decided with reference to the following criteria, then inter alia, (b) says
"... the context in which the act, ommission or offence took place and in particular whether the acts,"
etc.
"...was committed in the course of or as part of a political uprising, disturbance or event."
So there, I think what Mr Draht has submitted is that the actions of the applicant were part of a political event mainly, but the funeral was in fact, had turned into a political event, and that his action was part of that event. What would you say to?
MS LOCKHAT: Chairperson I can say that the death of Philemon Sekonyana was, took place in the context of the unrest in the area, and I just, the intention of Mr Xaba is just, I’m not sure whether he’s furthering the political objectives of a political party, but I admit that the funeral ...(intervention)
CHAIRPERSON: You see sometimes, I don’t think every act, in order to qualify for amnesty, has to further the objectives of a political, a particular political party or movement. You know you will get situations where you’ve got a political event that turns into chaos and people start throwing stones or whatever, shooting, and that shooting is actually not really done in furtherance, in the furtherance of the policies of a movement or political party, etc., but it’s certainly done in the context of a political struggle or political event.
MS LOCKHAT: The point has been noted Chair. Thank you. I move further that there are the contradictions in his two, in the statement made by the applicant as well in the sworn affidavit attested to the applicant. It’s a supplementary affidavit, stating that Mr Mazibuko in fact informed him of the incident, so that, it seems to me that the applicant did not take the Commission into his confidence, full confidence, and made a full disclosure in terms of that as well. And I move that the application be refused. That the application for amnesty be refused. Thank you Chairperson.
CHAIRPERSON: Mr Draht do you have any reply?
MR DRAHT: No Mr Chairperson, only that the requested amnesty is granted.
CHAIRPERSON: Yes, we’ll reserve our decision and hand down a written decision in this matter. That then concludes this particular hearing, the first bundle of documents. What we are left with then is the hearing relating to the Suurfontein incident, Zevenfontein incident, which we will start tomorrow, would be convenient. Will half past nine in the morning, as agreed earlier, be a convenient time? And, yes, I was going to ask Ms Lockhat if you could kindly speak to the people at correctional services and ask if the, to ensure that the applicants are here in good time to allow their legal representatives time for consultation before half past nine.
MS LOCKHAT: Will do Chairperson.
CHAIRPERSON: That then brings today’s proceedings to an end. We will adjourn until tomorrow morning at 9H30.Thank you.
COMMITTEE ADJOURNS
