MR BRINK: Mr Chairman, in view of the delays relating to the transport of the prisoners in the first applications which were set down, we are ready to proceed with the matters of Ditini Thyido and Zwelitsha Mkhulutha.
CHAIRMAN: Very well. Mr Mathana are you ready to begin?
ADV MATHANA: That is correct Mr Chairman.
CHAIRMAN: Are the applicants going to give evidence through an interpreter?
ADV MATHANA: That is correct Mr Chairman.
CHAIRMAN: What language will they be speaking?
ADV MATHANA: Xhosa Mr Chairman.
CHAIRMAN: Who are you calling first.
ADV MATHANA: I call upon applicant Ditini Thyido, Mr Chairman.
CHAIRMAN: Sisi, swear him in.
DITINI THYIDO: (sworn states)
MS KHAMPEPE: You can sit down.
ADV MATHANA: You are the applicant in this matter.
JUDGE WILSON: I suggest that the microphone be moved over to be in front of the applicant who is giving evidence rather than the other one.
ADV MATHANA: Thank you sir. You are the applicant in this matter and you are now appearing before this Committee in order to give evidence relating to the act for which you were convicted and the circumstances under which you committed that act? You have prepared a statement which I propose you read out to the Committee relating to this incident. You may proceed.
MR THYIDO: My full names are Ditini Thyido from Khayelitsha, Western Cape. At the moment I am serving my service in Brandvlei in Worcester prison - a 9 year sentenced that I was sentenced on the 15th of December 1993.
My charges are as follows: murder, seven year sentence, attempted murder, two years, to be in possession of ammunition, one year. This took place at Site B in Khayelitsha in 1992. I was a member of the South African National Community Organisation.
This organisation was to protect the rights of the residents. This started because it was necessary that the community should have the representatives because they were actually against the Councillors.
At that time our municipality who was being forced upon us was ...
INTERPRETER: Can you please read a little bit slower so that the interpreters can be able to interpret.
MR THYIDO: The government of the day was not prepared at all to see to the needs of the communities because they actually wanted us to be under the leadership of those Councillors.
The government wanted to ensure that we have the Internal Stability Unit in our townships. Since the police intended to protect the municipality and their Councillors, they were always patrolling in the locations, day and night.
The residents noted that the police intentions were mainly to divide the intentions of the residents who did not support the municipality at the time. They initially started by prosecuted SANCO members. The intention was to demoralise the SANCO leaders so that they did not fight for the rights of the community.
And that is when SANCO took a decision that it had to establish a group that was going to protect the residents. Thereafter SANCO established these Self Defence Units. After a while I was appointed as one of the leaders of the Self Defence Unit in the region of Site B in Khayelitsha.
Our duty was to protect the residents who did not support the municipality of the time. Since the ISU was being used to threaten people, we were forced to find ourselves weapons which were the same as theirs so that we could protect ourselves from attacks.
That is where the war started between the ISU and the SDU. The amount of attacks upon the homes of the leaders of the SDU increased. Their houses were burnt by unknown people at night so that in order to arm members of the Self Defence Unit, money was collected from the residents of Site B to buy weapons.
This money was collected by the leaders of SANCO. Bongi Mpisane was one of those leaders who collected money. That made it very clear to us that we were in a war situation between the police and the Self Defence Units. The police who were assisted by a group of Koevoet members.
As time went by there were rumours that the people who were collecting money were using the money for their own personal gain in stead of forwarding the original mission.
Bongi Mpisane was one of those. The use of money in this way was not allowed and that led to disagreements between SANCO and the people who were collecting the money and using it for their own use.
These people who were affected or were involved, broke away, thereafter there were rumours that those breakaways from the SDU like Bongi Mpisane, started to work with the police. We noticed that the police had excessive information about members of the Self Defence Units and where they could be found.
We realised that the meetings of the Self Defence Units and our plans were known to the police in detail. The amount of attacks on the homes of the leaders of the Self Defence Units increased. It was easy for them to be arrested by the police of the Internal Stability Unit.
Those members who tried to escape, were shot.
INTERPRETER: We are going to ask once again that you please slow down. We also have to write down what you are saying and the interpreters cannot interpret because you are reading too fast.
MR THYIDO: Because there were people who were close to Bongi, we would hear from them about the meetings between him and the other breakaway members from SANCO and people who were suspected of being members of the ISU.
We then realised that the aims of the SDU were being defeated because of the co-operation between these people and the ISU. SANCO then took a decision that plans had to be made so that Bongi and the others could be won over to the side of the residents once again.
On a particular day before the 29th of August 1992, it was rumoured that Bongi Mpisane and his supporters were going to meet a members or certain members of the Internal Stability Unit as usual. The leaders of the Self Defence Units and I decided that that meeting should be attacked.
The day and venue were still unknown to us, we decided that we had to go and visit Mpisane soon with the intention to attempt to negotiate with him so that he could come back to us.
It was also attempted to regain the money which we lost which he collected and spent. In order to win him back over, we intended for him to tell us the date, time and venue of the meeting between them and the members of the ISU so that we could attack them and if Mpisane was going to refuse to cooperate with us, we were going to force him to lead us to where the meeting between them and the ISU was going to be.
On the 29th of August 1992 the leaders of SANCO chose myself, Zwelitsha Mkhulutha and Maliqole Mtsange for the abovementioned purpose.
MR BRINK: Mr Chairman, I am sorry to interrupt, but I wonder if this applicant can once again be told to read his statement a little more slowly.
JUDGE WILSON: Mr Mathana, if you want us to have any regard to what your applicant is saying, you will tell him that and explain to him. It is impossible to keep a note of what he is says and he just burbles on. Will you please explain to him in detail he is doing himself no good persisting as he is.
CHAIRMAN: You have a choice Mr Mathana of putting questions to him that would elicit the answers that you want him to give and hand in his statement if he swears to it on oath. Do you understand. So that statement would be in the form of an affidavit which could be handed in and then you can then lead him, put questions to him so that he can answer those questions. It is becoming difficult to cope with the situation as things are at present.
ADV MATHANA: Very well Mr Chairman.
MR BRINK: If he can pause after each sentence, just pause after each sentence.
ADV MATHANA: Please sir, when you read, could you just pause after each sentence, just pause very briefly after each sentence.
MR THYIDO: On that day we were armed as follows: I was armed with a weapon called a (indistinct), Zwelitsha Mkhulutha was armed with a bomb known as a M75.
CHAIRMAN: What is his name?
MR THYIDO: Zwelitsha Mkhulutha was armed with an explosive called an M75.
CHAIRMAN: Yes.
MR THYIDO: Maliqole was armed with a sub-machine gun. We went to Mr Mpisane's house which was in the R Section of Site B of Khayelitsha, we found Mpisane standing in front of his house and when Mkhulutha asked him where the others were, Mpisane ran away.
Mkhulutha then decided that Mpisane had to be shot and Maliqole then fired aiming at Mpisane. I never noticed where the bullet struck him, but I realised that they did strike him. Mpisane went and hid and we eventually gave up.
In that way our plan failed. Because of this act, we were arrested and prosecuted. I was found guilty on these charges that I mentioned above. I was sentenced to the abovementioned sentence.
During our trial I heard that someone had died because of the shooting incident on the day we had attacked Mpisane. I do not know how this person ended up being injured. The court also found us guilty of the culpable homicide for the death of this person.
The act for which I was found guilty was a political act caused by the ill-treatment by the police who were working for the oppressive regime of the time.
That act happened at a time where those police who were mentioned caused a situation in the residential area which was similar to a war situation. Although the act for which I was convicted was illegal, we were forced to do that because the community at large in our locations needed to be protected from the members of the Internal Stability Unit and their informants.
CHAIRMAN: Just repeat that again, the last two sentences.
MR THYIDO: Although the act for which I was found guilty was illegal, we were forced to do that because the community at large in our locations needed protection from the members of the Internal Stability Unit and their informants.
The objective of this act was so that those police of the Internal Stability Unit were to leave our locations and not come back again, because the residents in their entirety did not appreciate their presence there.
That act was aimed at getting rid of the police in the location so that the residents could retrieve their human rights. Once again, that act was aimed at showing the government of the time that the residents did not want the municipal officers that were being forced upon them.
The act of attacking informants and members of the Internal Stability Units was allowed, accepted and it was a decision was taken by SANCO at the time when the Self Defence Unit was launched.
Truly speaking because of that act, for which we were found guilty, it was very evident that the Councillors had to resign. The police of the Internal Stability Unit left our locations.
I hence ask the Committee to view my act and the circumstances under which that act took place as qualifying for amnesty in terms of Section 20 of Act 34 of 1995.
JUDGE WILSON: I take it that statement was prepared by you Mr Mathana.
ADV MATHANA: That is correct sir.
INTERPRETER: The speaker's microphone is not on.
JUDGE WILSON: Does it bear any relation to his application for amnesty that was filed with us?
ADV MATHANA: In what respect sir?
JUDGE WILSON: Have you read the application that he filed as to how the events took place?
ADV MATHANA: Yes, I've read it.
JUDGE WILSON: Does the statement that he has just read, bear any relation to that?
ADV MATHANA: I do not want to answer questions on his behalf, but when I also pointed this out with him in our consultations, because at the time when these statements or applications were prepared, they tell me that they were in the cells, not knowing fully what they were supposed to put in the application forms and having no legal advice as to the requirements.
JUDGE WILSON: I am not talking about that, they have had legal advice for some considerable time before the final date for filing applications, haven't they?
ADV MATHANA: I do not know, because I was not acting for them all that time, I was instructed to represent them only last Thursday.
JUDGE WILSON: Instructed by who?
ADV MATHANA: I received instructions from the interested person that I must act for them. That was only on Thursday last week, I was not able to see them until only Saturday or Sunday, this weekend and at that stage I was confronted with the applications which had already been prepared by themselves and I had to do the best I could under the circumstances in order to be able to present their evidence today.
JUDGE WILSON: Carry on.
CHAIRMAN: Before Mr Brink asks any questions, is there anything else that you would like to elicit from your applicant?
ADV MATHANA: No sir, thank you.
CHAIRMAN: Any questions you wish to put to this witness or the applicant rather?
MR BRINK: Yes. Would you just bear with me for one second. You were convicted of attempted murder relating to the injury suffered by Bongi, is that correct?
MR THYIDO: That is correct sir.
MR BRINK: Now, who was the person in respect of whom you were convicted of culpable homicide, who was that person?
MR THYIDO: It was said it was a child - that's what I got from the court.
MR BRINK: I understand that you were convicted of the murder of a woman called Zolethu Nqozuma?
MR THYIDO: That is not true.
MR BRINK: Weren't you convicted of murdering a woman on the 29th of August 1992?
MR THYIDO: No, that is not true.
MR BRINK: You see in your amnesty application, the original one, you indicated in paragraph 9(a)(1) that you were convicted of murder, attempted murder and having illegal firearms.
MR THYIDO: That is correct.
MR BRINK: There is no mention of culpable homicide.
MR THYIDO: Among the charges, there is an attempted murder but it is not a woman.
MR BRINK: As I understand the judgement which was given in this matter when you were convicted, you were charged firstly with murder together with your co-applicant and another person, you were charged with the murder of a woman called Zolethu Nqozuma, I don't expect you to know her name, but ...
JUDGE WILSON: This is a child is it not Mr Brink, if you will look at page 40 you will see all three accused were therefore found guilty on count 1 which is the murder of the child, Zolethu Nqozuma.
MR BRINK: I am looking Judge, at the first paragraph of the judgement. The first count with which they were charged appears to be the murder of a woman called Zolethu Nqozuma.
JUDGE WILSON: He then goes on to make that a child? And a great deal is said at pages 39 and 40 about this particular child. The child was hit, the child, the child.
MS KHAMPEPE: I think Mr Brink the problem arises from page 20 of the judgement because the Judge initially refers to the child as lady Zolethu Nqozuma.
MR BRINK: Yes, yes. Well, tell us about the child, how did this child come to be killed?
MR THYIDO: As I've already explained, we don't know anything, we just heard after some time that there is a child who died on that particular day but we didn't even know her.
MR BRINK: But for which murder are you seeking amnesty?
MR THYIDO: Because of the lack of knowledge on my side, I applied for amnesty because I thought that since we were in that scene, we thought that it is very important for us to come forward and ask for forgiveness because somebody was injured, somebody died on that scene.
MR BRINK: And you say you don't know anything about this child?
MR THYIDO: I don't have any details about the death of this child.
MR BRINK: Do you know whether your co-applicant does?
MR THYIDO: I know that he doesn't have any knowledge also.
MR BRINK: Bongi was well known to you, wasn't he?
MR THYIDO: That is correct sir.
MR BRINK: Were you friendly with him?
MR THYIDO: He used to be my comrade in the struggle.
MR BRINK: Did you do things together, did you play sport together, were you friends in that sense?
MR THYIDO: There were a lot of activities that we used to be together in.
MR BRINK: Why didn't you go to him at his house with your other comrades to talk to him about the allegation that he was stealing the money?
MR THYIDO: We had discussed this issue initially, just before the accident with him. Because Mr Mpisane at some stage he was once a leader, and as myself also as a leader, I was working under him, I was his subordinate because there were lots of things we were discussing concerning this money.
MR BRINK: Yes, but the point is you had every opportunity, you and your comrades, even if he was your superior, to go and talk to him about this money and find out exactly what the position was.
MR THYIDO: We discussed with Mr Mpisane and his group more than once, but on this particular day of the 29th our aim was not to talk to him, to discuss anything with him.
MR BRINK: No, I am not talking about the 29th, at any time before the 29th, could you and your comrades have gone to him and spoken to him? It must have been a concern to you as money was being misused?
MR THYIDO: As I've already told you that we had more than four groups - it happened more than once. We discussed the issue with him.
MR BRINK: And what did he say?
MR THYIDO: He used to respond, there was an agreement that the money was going to be used for the purposes of the organisation, but that never happened.
CHAIRMAN: One question is, what did Mpisane say to your questions about the money, what did he say?
MR THYIDO: It will be difficult for me to note what he said, he was responding because we were asking as the constituents, we were asking them as the leader. So it will be very difficult for me to say his actual response.
JUDGE WILSON: Were you there when it was discussed with him?
MR THYIDO: That is correct sir.
JUDGE WILSON: Why is it difficult to say how he responded, that is what he said?
MR THYIDO: As I am telling you Mr Chairperson, that I was not asking him about money, it was the Self Defence Unit, we were actually wanting to know the whereabouts of the money that was actually budgeted for the arms. We didn't get his actual response because we were asking him as the leadership.
CHAIRMAN: I understand you are asking him as the leadership and the leadership wanted an answer. My question is what was the answer?
MR THYIDO: The money that was budgeted we were actually talking about the budget of the money that was going to be used in the organisation.
CHAIRMAN: Please let's not waste time. I think you don't understand me. Mpisane was suspected of having misused funds, is that right?
MR THYIDO: That is correct sir.
CHAIRMAN: He was questioned about it?
MR THYIDO: That is correct sir.
CHAIRMAN: ... to know what happened to the money, is that right?
MR THYIDO: That is correct sir.
CHAIRMAN: What I am asking you is what explanation did he give, what did he say?
MR THYIDO: The only explanation that they gave, I cannot remember clearly but what I remember is that he agreed with us that the money was going to be used for the purpose that it was actually meant for initially.
MS KHAMPEPE: Mr Thyido, what was the purpose of going to Mr Mpisane, didn't you go there because he had misappropriated funds and that was the basis of your enquiry, the misappropriation of funds and not the budget for the buying of ammunition?
MR THYIDO: As I've already stated, initially we discussed about this money, but on the 29th we didn't go there for the money, but we actually wanted to get him and talk to him, but if we couldn't get him, there was nothing we could do at this stage.
MS KHAMPEPE: I don't think Mr Brink was specifically referring to the 29th, he was referring to the meeting that you had initially held with Mr Mpisane where you made enquiries about his misappropriation of funds. We are not referring to the 29th of August as yet.
Did you or did you not have that meeting with Mr Mpisane before the 29th of August?
MR THYIDO: Yes, I wanted a meeting with him.
MS KHAMPEPE: And at that meeting, did you discuss with him about the alleged misappropriation of funds?
MR THYIDO: What we discussed is that we still need to sort out the problems that we had with our leadership, that included the maladministration of funds.
MS KHAMPEPE: And what was his response, that is what we are seeking to get from you? What did he respond to the allegation of misappropriation of funds?
MR THYIDO: What I remember is that he is the one who said that we still have to discuss this issue.
MS KHAMPEPE: Mr Brink?
MR BRINK: It must have been a great concern to you to have heard that Bongi was using money for his own purposes?
MR THYIDO: Can you please repeat the question sir?
MR BRINK: It must have been of great concern to you and indeed your comrades, to learn that Bongi was stealing money?
MR THYIDO: That is correct sir.
MR BRINK: And you and your comrades must have discussed this matter because it was a very serious matter?
MR THYIDO: That is correct sir.
MR BRINK: People have been volunteering to give money to buy ammunition and arms.
MR THYIDO: That is right.
MR BRINK: Bongi is one of your leaders who apparently is putting that money in his own pocket?
MR THYIDO: That is correct sir.
MR BRINK: I come back to my question, I am sorry to labour it, did you not go and see Bongi with your comrades to discuss specifically the fact that he was stealing money which had been given to the organisation by the residents?
MR THYIDO: At some stage we discussed this issue.
MR BRINK: With him, Bongi?
MR THYIDO: It was Bongi and the others, and his co-accused.
MR BRINK: And you?
MR THYIDO: Yes, sir.
MR BRINK: Where did this meeting take place?
MR THYIDO: It was in one of the local schools called Sosovenza. It was at Site B.
MR BRINK: How many people were there altogether, do you remember?
MR THYIDO: I can still remember there was a lot of people, but they were acting on the leadership level and the other members who were from the Regional ANC organisation.
MR BRINK: So a direct accusation was put to him then that he was stealing money?
MR THYIDO: He was accused with his constituents, the people who were also responsible for collecting the money.
MR BRINK: Yes, but he with others were accused of stealing money?
MR THYIDO: It was not clear how they used this money, so we were expecting them to explain the whereabouts of the money.
MR BRINK: What explanation then was given?
MR THYIDO: What I can still remember is that the money was still in the office, but we were asking where is the money, those were the questions that we were posing to him, where actually is the money?
They said they were still looking for the places where they could buy the ammunition and the procedure that would be followed when buying that ammunition.
MR BRINK: Mr Thyido, my question was when he said the money was in the office, what did you say to him, what did you ask him? Not concerned about what was going to happen to any further monies which came in, I am concerned about the money which it was said that he had stolen.
MR THYIDO: They said they still have the money. We didn't ask them, first of all I want to explain to the Commission that we stay in shacks and we don't have proper offices, at that time as we were discussing this issue there were criminals all over and the people were about to attack us and we actually asking them, because we were afraid that there is a lot of crime around, so we wanted to know where is the money.
So it was not the type of the meeting that we have today, it was just a meeting whereby you were still very tense because the people were attacked the previous night. So we were very tense, it was not this kind of relaxed meeting.
MR BRINK: On the 29th of August, you went to his house?
MR THYIDO: That is correct.
MR BRINK: And you say the purpose of that visit was to persuade him to tell you where there was to have been a meeting between him and the ISU?
MR THYIDO: That is correct sir.
MR BRINK: And did you actually ask him about that, where the meeting was to be held? I think you said you went to find out when and where the meeting was to be held?
MR THYIDO: Yes, I asked him.
MR BRINK: What did he reply?
MR THYIDO: I can't remember the straight answer, but he was actually shocked.
MR BRINK: In what way?
MR THYIDO: I can't remember the response, he was not actually saying the specific, he was not giving the specific answer.
JUDGE WILSON: Why was he shocked? Why do you say he was shocked?
MR THYIDO: I suppose I want to correct this thing, in the R Block, it was the section that was under Mr Mpisane and his constituency. While we were at the R Section, we were regarded as the enemy, so we didn't have time to make observations.
Because we were not relaxing because we were taken as enemies.
MS KHAMPEPE: In that case Mr Thyido, how could you deduce that he was shocked?
MR THYIDO: It is because while I was still asking him these questions where were the others, he decided to run away and we were not even at a distance from his house, but he decided to run away. There is nothing that I can say that we discussed and he gave us the response.
MS KHAMPEPE: Who were you referring to when you were asking him about the others, who were the others?
MR THYIDO: Those were the people in his group who were responsible for collecting money. I am not sure if you want their names?
MS KHAMPEPE: Do you have their names?
MR THYIDO: Yes, I know their names.
MS KHAMPEPE: Can you give us their names?
MR THYIDO: Mr Mqokeli Mpungwana, Mr Fundile Matoto, Mr Millian Sizani and Mr Mattheys and Mr Libele, I can't remember their first names, but I remember it was Mr Mattheys and Mr Libele.
JUDGE WILSON: If you knew who these people were, why did you ask him who they were? Because you just told us you asked him who are the others, now you tell us you knew them by name?
MR THYIDO: The reason for that, I wanted to know where are they, where were they because as a leader of the Self Defence Unit I was forced to make sure that there is a meeting or there is no meeting, but if they were around, we wouldn't get a chance of discussing, so I was forced to ask him ... (tape ends)
MS KHAMPEPE: Mr Thyido, did the people that you have just mentioned to us, know that you were going to have a meeting at Bongi's house?
MR THYIDO: Yes.
MS KHAMPEPE: ... advise them of this meeting?
MR THYIDO: Who?
MS KHAMPEPE: ... Mattheys and Mr Libele? You had all given them prior notice of the meeting of the 29th of August, is that what you are saying?
MR THYIDO: No, Ma'am.
MS KHAMPEPE: ... could you ask where are the others, if they didn't know that there was going to be a meeting at Mr Mpisane's house?
MR THYIDO: As I've already said that on the 29th we got a tip that there would be a meeting between the police and Mr Mpisane, but when we found that Mr Mpisane was alone, we realised that the others might be around, therefore we were expecting him to be in that meeting, so we had to ask him where are the others, because we knew that we got a tip of that they would be having a meeting with the ISU's.
MS KHAMPEPE: Mr Brink?
MR BRINK: How many days or weeks before the 29th of August was the meeting at the school held - approximately?
MR THYIDO: I think it is quite a number of months.
MR BRINK: That is strange (indistinct) in a school, at a school, was Bongi then suspected of being an impimpi?
MR THYIDO: That is correct sir.
MR BRINK: And at that meeting, was there any attempt to directly accuse him of being an impimpi?
MR THYIDO: As the SDU's we were there to protect him, so it was not like that.
MR BRINK: To protect an impimpi?
MR THYIDO: We were actually protecting the say that a person could be accused of being an informant.
MR BRINK: ... disciplinary structures in your organisation I take it?
MR THYIDO: Do you mean in the Self Defence Unit sir? That is correct sir.
MR BRINK: Why wouldn't steps then be taken to discipline a man who was being suspected of being an impimpi?
MR THYIDO: I would like to explain like this. A person who is being suspected as an informant, it was not a person that we would take him or her seriously.
As the SDU we didn't have much knowledge of politics, we had procedures that should be followed to make sure that a particular person is a real informant.
MR BRINK: Were such steps taken?
MR THYIDO: That is correct sir.
MR BRINK: What were the result of these steps which were taken?
MR THYIDO: As I've already told you that from the 29th, the period between the day of the meeting and the 29th, there were rumours that Mr Mpisane was an informant, but as the Unit we were forced to wait and see, to be sure that this person was a real informant.
MR BRINK: And on the 29th of August, you say you believed that?
MR THYIDO: Yes, we believed those rumours.
MR BRINK: And you went to his house?
MR THYIDO: Yes, sir.
MR BRINK: Three of you?
MR THYIDO: Yes sir.
MR BRINK: And you asked him where the others were?
MR THYIDO: Yes sir.
MR BRINK: He looked shocked?
MR THYIDO: Yes, sir, he was very shocked.
MR BRINK: He ran away?
MR THYIDO: Yes, sir, he ran away. Yes, he was shot.
MR BRINK: Are you seeking amnesty then in respect of the attempted murder relating to him and for the possession of arms and ammunition?
MR THYIDO: Yes. I am referring to both charges and as this other issue when that other person is alleged to be killed, even if it is not a child, though it is said that someone else was killed also and as a person who was on the scene that day, I would also ask for forgiveness because of the death of that child.
MR BRINK: Just tell me briefly, what was your involvement if any in regard to the death of that child?
MR THYIDO: Myself, do you mean myself?
MR BRINK: Yes.
MR THYIDO: If it is true that that child was shot, died from the bullet, that was being shot by Maliqole, I am also involved as equal as Maliqole because he also shot. I am just like the person who shot, because I was also involved there.
MR BRINK: As far as you could see, did he point his rifle at the child or was the child killed accidentally?
MR THYIDO: Surely, if this child was killed by a bullet from Maliqole's gun, or either, he died accidentally.
MR BRINK: Well, who was Maliqole intending to shoot?
MR THYIDO: Maliqole didn't intend to shoot to a specific person, but because Mr Bongi was running away, we had to prevent him, so we were actually preventing Bongi not to run away.
But if he was running, we had to prevent him from running away to ensure our safety so that he couldn't meet with the other people somewhere, somewhere there.
MR BRINK: Thank you Mr Chairman.
CHAIRMAN: The meeting on the 29th of August, was that supposed to be a meeting of the ANC?
MR THYIDO: No sir.
CHAIRMAN: Was there a man called Mr Makalane who was Chairman of the ANC at the time?
MR THYIDO: I am not sure, what do you mean, where?
CHAIRMAN: Have you heard of a man called Mr Makalane, or Makalene?
MR THYIDO: Yes, I know him sir.
CHAIRMAN: Was he Chairman of the ANC in your area?
MR THYIDO: Yes, sir he was once a leader in our area.
CHAIRMAN: On the 29th of August, was he involved in trying to arrange a meeting at which you wanted Mpisane to attend?
MR THYIDO: He was absent, but we told him.
CHAIRMAN: Who was absent?
MR THYIDO: It is Mr Makalene.
CHAIRMAN: Yes, you are now talking about the fact that on that day there was supposed to be a meeting that had been organised of the ANC and you wanted Mr Mpisane to attend that meeting, is that correct?
MR THYIDO: That is correct sir. If it was possible for us to get him, I just want to correct one thing here. I just want to rectify something here, if it was possible to get him, we would request him if it was possible, if he was going to agree with us, we were not going to force him to come to the meeting, but if he wouldn't allow us, we were going to force him.
We were prepared to use force.
JUDGE WILSON: So there was a meeting you wanted him to come to?
MR THYIDO: If it was possible to get him there, that is correct, we wanted him.
CHAIRMAN: There was going to be a meeting, it was your intention to go there armed, to get Mpisane to come with you to that meeting on the 29th, that is the meeting of the ANC, is that right?
MR THYIDO: That is correct sir.
CHAIRMAN: And what was the purpose of that meeting of the ANC?
MR THYIDO: It was just a meeting, a branch meeting.
CHAIRMAN: Yes, to discuss what?
MR THYIDO: We were going to talk about the protection of the community.
CHAIRMAN: You know according to the record of the judgement, I gather that there was a meeting to be held to discuss allegations of criminal conduct levelled against you and Maliqole Mtsange. Is that right?
MR THYIDO: I am not sure, but on the 29th as far as I know we had a meeting of the ANC and Bongi and the others had the meeting with the police, so I don't know which one are you referring to? Whether our meeting with Maliqole for the ANC branch and the one of Mr Mpisane and the ISU's.
CHAIRMAN: We are talking of the ANC meeting. That is what we are talking about.
MR THYIDO: I would like you to note that even Mr Mpisane was a member of the ANC, so I am not sure which one was going to discuss the criminal activities that were taking place, so they had their own meeting and we had our own meeting.
So it is very difficult for me to actually identify which meeting are you talking about, because of that very same date we were going to have two meetings, our meeting and their own meeting.
JUDGE WILSON: We are talking about your meeting, your ANC meeting.
CHAIRMAN: Not the meeting of the ISU, we are talking about the ANC meeting.
MR THYIDO: We were going to discuss about the protection of the community. I don't know anything about the criminal acts that I was involved in that was going to be discussed there.
JUDGE WILSON: You were at your trial, weren't you? And you heard the evidence that was led there, didn't you?
MR THYIDO: That is correct sir.
MS KHAMPEPE: Is it not true Mr Thyido, that you had been accused of burning people's cars and committing robberies in the area?
MR THYIDO: There were such allegations but not in that same trial.
CHAIRMAN: The question is not allegations, the question is whether in fact you had done those things?
MR THYIDO: Me as an individual, I was never ever charged. I was never found guilty of such criminal acts.
CHAIRMAN: Is the position that when you approached Mr Mpisane he was outside his shop, you told him that there was going to be a meeting at two o'clock that very day. You asked him to accompany you and that he was co-operative, and willing to attend the meeting with you that afternoon, is that correct?
MR THYIDO: Where did I say those things?
CHAIRMAN: Yes, I am also wondering why - oh accused 1 said that? Mkhulutha, I am sorry it was Mr Mkhulutha who said that while you were present Mkhulutha spoke to Mpisane. Was he with you?
MR THYIDO: I just want to know where does this come from, what is the basis of this question?
CHAIRMAN: At or outside the shop of Mr Mpisane.
MR THYIDO: That's correct.
CHAIRMAN: That Mr Mpisane was told that there was a meeting at two o'clock and you required him to attend and he appeared quite willing to attend the meeting, is that correct?
MR THYIDO: I don't have that knowledge.
CHAIRMAN: So as far as you are concerned, the three of you pitched up there, heavily armed, anybody could see that you were armed, you approach Mpisane, you ask him as to when and where the meeting is going to be held, so the purpose of your going there was to find out when the ISU were going to hold the meeting, is that correct?
MR THYIDO: Yes, sir.
CHAIRMAN: Let me surprise you to know that the evidence you are giving, seems to be very, very different from what was said in your trial.
MR THYIDO: That is correct sir. During the trial we were discussing because we were being accused by the people who were our enemies, meaning the side of the policemen and Mpisane.
CHAIRMAN: You were accused because Mpisane had been shot and a child had been killed, that is why you had been accused.
MR THYIDO: I am trying to say that during the trial we were actually giving evidence because we wanted to protect some of the things, we didn't tell the whole truth.
JUDGE WILSON: Did you tell the truth at all at your trial?
MR THYIDO: There and there I spoke truth.
CHAIRMAN: Is that what you are doing now?
MR THYIDO: Now I am prepared to tell the truth, but at the moment I am still responding to the questions that are being posed at me.
CHAIRMAN: Do you have questions to put to him?
JUDGE WILSON: Yes lots. Now, there were the three of you, were there, Mkhulutha, yourself and Mtsange. Is that correct, don't nod your head?
MR THYIDO: That is correct sir.
JUDGE WILSON: Now were any of you Committee members?
MR THYIDO: At the time I was a Committee member, but I was suspended of misbehaving.
JUDGE WILSON: So you were not a Committee member and the others weren't? Is that so?
MR THYIDO: They were not Committee members in the political organisation, but the three of us were Committee members in this Unit.
JUDGE WILSON: You were members of an SDU unit, you don't have committee members, do you? Certainly no one has ever given us evidence to that effect before. Is that the position, you were members of the SDU and I think you said you were the leader, didn't you?
Is that true, were you the leader of this Self Defence Unit?
MR THYIDO: The three of us, we were members of the commanding structure in the Self Defence Unit, but in the political organisations, in the Youth Association, I was suspended because of misbehaving.
JUDGE WILSON: Because in your application for amnesty, you said we were on the way to the meeting with one of the Committee members who was collecting money to buy firearms.
That would be the deceased, would it, Mr Mpisane?
CHAIRMAN: Not the deceased, he didn't die.
JUDGE WILSON: We were on the way to the meeting with one of the Committee members to collect money, he didn't die, sorry, he got shot, Mr Mpisane, is that so?
MR THYIDO: Yes, he didn't die.
JUDGE WILSON: And you said, so you were on your way to a meeting with one of the Committee members who was collecting money to buy firearms, so you were on your way to a meeting with Mr Mpisane, that is what you said. Correct?
MR THYIDO: Yes, I said so, but I would request you to take note that in my application for amnesty there is a lot of things that were written there because of lack of knowledge.
JUDGE WILSON: This is not lack of knowledge, this is very clear.
CHAIRMAN: Is it his handwriting?
JUDGE WILSON: Did you write out the form yourself or did somebody write it for you?
MR THYIDO: I wrote the form myself.
JUDGE WILSON: And I will read on to what you went on to say, you've now started off saying we were on our way to the meeting with one of the Committee members who was collecting money to buy firearms, there is nothing complicated about that, is there?
MR THYIDO: I am actually referring to Mr Mpisane because he was the one who was a Committee member responsible for collecting money.
JUDGE WILSON: Yes, and you said you were on your way to a meeting with him, you then went on to say as we were walking one of the Committee members unexpectedly shot at us. That is what you were putting down yourself in your amnesty application.
MR BRINK: Mr Chairman, sorry to interrupt. May I suggest the applicant be given sight, he doesn't have it in front of him, I think he should mark it there, it is this portion here.
JUDGE WILSON: Look at page 3.
INTERPRETER: The speaker's mike is not on.
JUDGE WILSON: Look at page 3, at the top of the page you see IV, "Sasi, Sianalanga Umsweni", do you see that?
MR THYIDO: Yes, I can see sir.
JUDGE WILSON: And you said as we were walking, one of the Committee members unexpectedly shot at us.
MR THYIDO: Yes, I can see.
JUDGE WILSON: The Committee member we were with, ran away. Correct?
MR THYIDO: Yes, I can see sir.
JUDGE WILSON: And then you go on to say my colleague Mr Mtsikwazi fired back and injured the attacker.
MR THYIDO: I can't see actually where you are reading. I can't see it on this current page here. I can't see that one, that I said I shot back to the attacker.
JUDGE WILSON: It didn't say you did, it said Mr Mtsikwazi fired back and injured the attacker.
MS KHAMPEPE: Can I be of assistance Mr Thyido. You are going to get what Judge Wilson is referring to on page number 3. If you page through your application form you will see on top of the page it said page number 3, on top there, there is the details and the type of action and the details.
In the middle of that paragraph you say they shot at us unexpectedly, my colleague Mr Mtsikwazi shot back and injured the attacker, the one that we are supposed to discuss with, that was Mr Mpisane. That is what you wrote.
I am trying to read as you have written, can you hear now?
MR THYIDO: Yes, I can hear.
MS KHAMPEPE: Can you hear, do you understand that?
MR THYIDO: Yes, I do.
MS KHAMPEPE: Can you please go on responding to the question?
MR THYIDO: The question is now saying that the person who was attacking was shot, it is not like that, it is Mr Mpisane who shot at my colleague.
Or the Committee member that I am referring to is Mr Mpisane that was in our company.
INTERPRETER: The speaker's mike is not on.
JUDGE WILSON: Who shot at you? You said - no they didn't say unknown, one of our Committee members unexpectedly shot at us is the interpretation. Is that a correct interpretation?
You said in your amnesty application that one of your Committee members unexpectedly shot at you?
MR THYIDO: Can I please read this paragraph, can you please allow me to read this paragraph, because what you are saying is not what is written here in this text.
JUDGE WILSON: Well, read it out.
MR THYIDO: The other Committee members came to us and shot at us unexpectedly, that is what is written here.
JUDGE WILSON: Other Committee members came to you and shot at you unexpectedly, is that what is written? Is that what is written there?
Other Committee members came and shot at us unexpectedly, that is what you have just read out as I understand it.
MR THYIDO: Your Honour, I am not sure whether I am not being articulate, but I want to read all this part. Please allow me, perhaps we will get clarity.
CHAIRMAN: We will take a short adjournment and let him familiarise himself with his statement. That might save a lot of time.
JUDGE WILSON: I would ask whether those responsible for the interpretation today would assist our evidence leader in going through what we have been given as a translation of what is written in the application and making any corrections that need to be done.
Would you be prepared to do that? Thank you, I would be obliged.
CHAIRMAN: We will take a short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRMAN: Yes, are we ready to proceed?
MR BRINK: Mr Chairman, the translators during the short adjournment were kind enough to assist and if one goes to paragraph 9(a)(4) on page 7 of your bundle, it should read as follows: some Committee members came unexpectedly and shot at us.
JUDGE WILSON: Where does that come in? Does it say we were on our way to the meeting with one of the Committee ...
MR BRINK: This is the translation of that sub-paragraph which was being given to me. Some Committee members came unexpectedly and shot at us while walking with this Committee member, Mr Mpisane and he ran away. Mr colleague Mr Mtsikwazi ...
MS KHAMPEPE: Mr Brink, we are taking down what you are reading.
CHAIRMAN: We are trying to take down what you are reading please.
MR BRINK: Some Committee members came unexpectedly and shot at us while walking with this Committee member, Mr Mpisane and he ran away. My colleague Mr Mtsikwazi shot back and injured the Committee member that we were supposed to discuss with (in a meeting) that is Mr Mpisane.
And then Mr Chairman, you will note that paragraph 10(d) was omitted from this translation for some reason, but it should read as follows. I beg your pardon, 10(c), I beg your pardon 10(c). If you delete 10(c) and substitute the following "when fighting for people's rights you do not expect a financial gain". May I continue?
CHAIRMAN: Completely different from the present 10(c) is it?
INTERPRETER: The speaker's microphone is not on.
MR BRINK: 10(d) which was not translated reads as follows: "yes, it was great because my colleagues were going to infiltrate the police force so that the people would be protected and the police would then serve the community."
Those are the ...
JUDGE WILSON: I am filled with anxiety, Mr Brink, are we likely to face the same problems when we come to the next applicant's amnesty application?
MR BRINK: I sincerely hope not.
INTERPRETER: The speaker's microphone is not on.
JUDGE WILSON: They don't indicate who has done the interpretation?
MR BRINK: The interpretation is - they do the interpretation is manuscript which are then sent to the secretaries for typing.
JUDGE WILSON: Now we have also in the papers before us on page 9 another statement. Can you tell us where this comes from?
MR BRINK: Mr Chairman, this appears to be more or less a repetition of 9(a)(4), but where the second paragraph comes in, there is no indication. The first paragraph appears to be a variation of 9(a)(4).
JUDGE WILSON: It might have been another translation?
MR BRINK: It may have been another translation.
JUDGE WILSON: It may have been another translation, it doesn't purport to be another statement made by the applicant?
MR BRINK: No, no.
CHAIRMAN: Mr Mathana?
ADV MATHANA: Yes Mr Chairman.
CHAIRMAN: Do you agree with what has been read out by Mr Brink, that that is now a correct translation of what the applicant said in his application form?
ADV MATHANA: Yes, Mr Chairman. Yes.
CHAIRMAN: Yes, thank you. If you will please listen now what you in fact said in your application form was some Committee members came unexpectedly and shot at us while walking with this Committee member, Mr Mpisane and he ran away.
MR THYIDO: Before I respond to that one, can I please clarity one thing. If we can take note this application form, some of the questions that was answered in this application form we didn't get them correctly, this might be the cause that in this application that there could be some contradictions and the answers won't be the relevant answers.
Because we didn't have the knowledge. One day myself, I wrote a letter to Alex Boraine because I wanted to get more knowledge in writing about application for amnesty, but I got this response, this letter which is signed by Ms Khampepe.
It doesn't give me the information that I want.
JUDGE WILSON: I am asking you about the application form that you filled in yourself in which you said some Committee members came unexpectedly and shot at us while we were walking with this Committee member, Mr Mpisane and he ran away, that is what you wrote down on your amnesty application form.
CHAIRMAN: Is that correct?
MR THYIDO: That is correct, because I was not being articulate, because it is not the kind of answer that I was supposed to give in that question. I was not being relevant.
JUDGE WILSON: I want to know why you said in your amnesty application form which you swore to, that somebody came unexpectedly and shot at you? It is a simple statement, there can be no doubt about it, you said that they came unexpectedly and shot at us. Why did you say that?
MR THYIDO: The evidence in this application form I can't remember taking an oath for this, but I am sure of what I am saying now, but this one in this application form, I didn't take an oath for it.
JUDGE WILSON: That will mean we haven't got an application for amnesty before us. If it wasn't done properly. We haven't got the last page of the photostat, was it sworn to>
MR BRINK: My recollection is that it was, but I don't know what happened to the last page. The usual problem, we will be discussing this afternoon ... (tape ends)
INTERPRETER: The speaker's mike is not on.
JUDGE WILSON: You wrote this down and you knew that this was the information you were putting down on your amnesty application which was that you were shot at by some people.
MR THYIDO: I would like the Committee to take note that if you realise that in my court application, there is a mention of the shooting, but what is on here, it is not the genuine truth.
But this was due to misunderstanding, unawareness.
JUDGE WILSON: That is nonsense. There was no possible misunderstanding, you were setting out your version and it was not the truth. Is that what you are now telling us, that you filled in something on your amnesty application form which was not true? Because it wasn't true, was it?
MR THYIDO: It is very difficult to respond to this question, but I would like to refer you to page 5, where it is written in Xhosa where it is mentioned that I do not think that this person understood this question.
That is one example, relating to this application showing that there are some instances where we did not know what was the actual question and how to respond to it.
JUDGE WILSON: You are still not answering the question of why you responded untruthfully and put down something which you knew was not the truth? It is not a question of not responding, it is the fact that you responded untruthfully that I want you to explain. Can you explain why you did that?
MR THYIDO: The fact that we were going to a meeting is true, but the untrue part of the statement is that somebody appeared and shot us, but that was said in court due to some reasons.
JUDGE WILSON: I am not talking about court now, I am talking about the application you filed for amnesty, why did you put that untruthful statement in?
MR THYIDO: Your Honour, if you can observe that even the concept of amnesty, I was not aware of, but there might be things that might come up that I was not aware that I should reveal in my application, and therefore I must be pardoned for that.
JUDGE WILSON: This is not something which you did not reveal, this is a false statement you made and you are making no endeavour to explain why you did it?
It is not something which you did not reveal, something you did not understand, you made a false statement.
MR THYIDO: I will request Your Honour to understand that what we have written here is that we were going to a meeting, but what did not happen is the fact that somebody appeared and shot at us. But we said this in court, but I wrote this to show this Committee that there are people like us who are not aware what to write on such applications.
JUDGE WILSON: Are you now saying you did this deliberately, you wrote this to show the Committee that there are people who don't know what to write on such applications, is that the explanation you are now giving?
MR THYIDO: In this particular application, yes, it is so but after having got the information that I needed, I reapplied.
CHAIRMAN: And now you are admitting that what you have said here, part of it, is not true, is that what you are saying?
MR THYIDO: Yes, sir.
CHAIRMAN: Are there any untruths in your application form?
MR THYIDO: This statement was done and written not under sworn oath, but it was just filled in.
CHAIRMAN: I am not asking you whether it was under sworn oath or not, are there any other points you made in this statement which are not true, that is my question to you now. Apart from the one we already talked about?
MR THYIDO: Due to some unawareness there might be such statements in my application.
MS KHAMPEPE: Ms Thyido, did you at stage lose a relative?
MR THYIDO: No.
MS KHAMPEPE: ... where you were staying, ever attacked by members of your community?
MR THYIDO: No.
MS KHAMPEPE: ... involved in any attack where your house or your relatives were attacked by members of the community?
MR THYIDO: I personally do not have a house, but my parents had to seek alternative accommodation and had to run away.
MS KHAMPEPE: Why did they have to seek alternative accommodation or run away from that community?
MR THYIDO: It is due to threats and allegations that we might be attacked, therefor they had to move due to uncertainty.
MS KHAMPEPE: And who were you expecting to attack you?
MR THYIDO: I was expecting the policemen or whoever they might use, to do this.
MS KHAMPEPE: Didn't you at one stage or another, suspect that Mr Mpisane would attack you and your companions, like Mr Mkhulutha?
MR THYIDO: I never thought of that, but there were such allegations that Mr Mpisane was one of the reasons for this violence that was happening.
MS KHAMPEPE: And who advised you that Mr Mpisane might be implicated in such attacks?
MR THYIDO: It was just rumours in the community. But there is no specific person who came to tell me that.
MS KHAMPEPE: Was that matter taken up with the local branch of the ANC, you were both members of that organisation?
MR THYIDO: Yes, it is so because it went up to the level of the branch of the ANC.
MS KHAMPEPE: Now, when you heard that Mr Mpisane was suspected of being an informer or as you put it, you actually got a tip that Mpisane was an informant, what did you do, did you take that matter up with the ANC?
MR THYIDO: Your Honour, I would like to clarify this. My membership in the ANC Youth League was different altogether to my membership of the Self Defence Unit. Such things were discussed in the Self Defence Units, but not in the ANC Youth League.
MS KHAMPEPE: Didn't you arrange a meeting with Mr Makalene to discuss this particular matter involving the mismanagement of funds of the SDU and Mr Makalene was the Chairperson of the local branch of the ANC and the mismanagement of funds, in fact concerned the issues of the SDU and not issues directly related to the ANC?
MR THYIDO: That is so Your Honour, but I would like to clarify one small matter. Mr Makalene is a member of the ANC or a Chairperson of the ANC but also a resident of that area.
Some of the defence matters were affecting him in that manner, as a resident.
MS KHAMPEPE: But you discussed the matter of holding a meeting with Mr Mpisane in respect of his mismanagement of funds of the SDU with Mr Makalene?
MR THYIDO: I told him about that on the morning of the 29th.
MS KHAMPEPE: What prevented you from telling him about the tip that you had received that Mr Mpisane was an informer? Is it not true that being accused of being an informer in the township was the worst crime that you could be accused of? And that it would have in fact been of great interest to the ANC as an organisation?
MR THYIDO: It is so Your Honour. But the issue of Mr Mpisane was not that he was an informer, but because on the 27th me myself and Mr - my colleague here, are alleged that we attacked a police van.
It was not just an allegation, but people did see them doing such.
MS KHAMPEPE: Did see who doing what? Which people saw who doing what? I am not with you there?
MR THYIDO: Us on our side as the SDU's and the Site B residents who were certain that these people were corroborating with the police because myself and Mkhulutha did attack the police van and we were arrested on that day, on the 27th and we were discharged on bail on the 29th.
MS KHAMPEPE: But how did you know that Mpisane was corroborating with the police?
MR THYIDO: On our arrest on the 27th, Mr Mpisane was present in the Mitchells Plain court. He is the one who said that we should discuss this matter over to disperse such differences that was in December 199...
MS KHAMPEPE: I will repeat my question again and try and make it less complex. How did you know that Mr Mpisane was an informer?
MR THYIDO: I saw him in the company of policemen.
MS KHAMPEPE: And when was that Mr Thyido?
MR THYIDO: On the 27th of August 1992.
MS KHAMPEPE: And what was he doing with the police that made you believe that he was an informer?
MR THYIDO: I would not know what they were actually doing, but Mr Mpisane as my leader, as it was generally known that a person of his calibre should not be seen with the police because of their behaviour.
Thus I realised that he is corroborating with them when we were being arrested for something else.
MS KHAMPEPE: Did you make any endeavours to make any enquiries from Mr Mpisane as to what he was doing when you saw him with the police?
MR THYIDO: I tried to ask him.
MS KHAMPEPE: And what did he say?
MR THYIDO: He said man, I do not know what is happening.
MS KHAMPEPE: And that made you conclude that he was an informer?
MR THYIDO: This is what led me to believe on this particular day, on the 29th that I should have a moment to discuss with him this before we can shoot him, because I was quite uncertain as to what was he up to, what was his stance.
JUDGE WILSON: Sorry, did you say you wanted to have a moment to discuss with him before you shot him?
MR THYIDO: No sir. I did not say before shooting him.
JUDGE WILSON: Isn't that what you have just said. Could we have that played back?
INTERPRETER: The technician would be unable to stop the tape because then he wouldn't be able recording.
JUDGE WILSON: Carry on.
MS KHAMPEPE: Why did you go to Mr Mpisane on the 29th of August, Mr Thyido, I am getting a little confused now because of the many reasons that you have given. Now you have told us that there are many truths that you have put in your application, now we will ask you for the last time. Why did you go to Mr Mpisane on the 29th of August?
MR THYIDO: As I have already said, we did not go to Mr Mpisane on the 29th but we were having a caucus and we found him on his own, Mr Mpisane.
MS KHAMPEPE: So your intention was not to go to Mr Mpisane? You just happen to bump into Mr Mpisane as you were having a caucus?
MR THYIDO: According to our caucus we had gone to Mr Mpisane, expecting to find him in a meeting with the policemen and the group that he was involved with.
MS KHAMPEPE: What did you hope to achieve if you found him in a meeting with the police, what was your intention, what did you intend to do?
MR THYIDO: We would definitely attack if we found policemen there.
MS KHAMPEPE: ... given you the tip that Mr Mpisane was going to have a meeting with members of the ISU?
MR THYIDO: It is another girl named Zukiswa who was a member of the ANC Youth League. Unfortunately I do not know her surname and her address.
MS KHAMPEPE: Did you discuss that tip with Mr Makalene as the local Chairperson of the ANC?
MR THYIDO: The constitution of amabutu says he must just be notified, but not to be given any full details.
MS KHAMPEPE: Was he notified?
MR THYIDO: Yes, it is so.
MS KHAMPEPE: When was that?
MR THYIDO: On the 29th.
MS KHAMPEPE: Thank you.
CHAIRMAN: Was your mother killed in any attack?
MS KHAMPEPE: That's accused number 1.
CHAIRMAN: Oh, I am sorry, it was the mother of Mr Mkhulutha. Was she killed, to your knowledge?
MR THYIDO: Yes, she was killed according to my knowledge.
CHAIRMAN: When did you learn about that, immediately after?
MR THYIDO: As a member of the SDU I knew it on the very same day, that it happened.
CHAIRMAN: Was it known as to who did it, who killed her?
MR THYIDO: Nobody knew definitely but there were rumours that a certain group and Mr Mpisane were there on that instance, but without any evidence.
CHAIRMAN: Any re-examination of this witness?
ADV MATHANA: I have no re-examination Mr Chairman. Thank you. That concludes the case for this applicant.
CHAIRMAN: What do you propose doing, are you calling witnesses?
ADV MATHANA: No Mr Chairman.
MR BRINK: Mr Chairman, I don't propose leading any evidence.
CHAIRMAN: Can we then proceed with the next applicant?
ADV MATHANA: Yes, thank you Mr Chairman. The next applicant Mkhulutha was involved in the same incident with the first applicant and the statement is very much the same.
I propose to let him adopt it as his evidence and to confirm it, Mr Chairman.
CHAIRMAN: How are you going to do that?
MR MKHULUTHA: I will confirm that our statement is the same.
ADV MATHANA: Excuse me Mr Chairman, may this applicant be sworn in?
ZWELITSHA MKHULUTHA: (sworn states)
MS KHAMPEPE: You are sworn in in full, you may take a seat.
ADV MATHANA: May I take a seat Mr Chairman?
CHAIRMAN: Yes, please.
ADV MATHANA: You have listened and heard to a statement that was read by applicant Mr Thyido, is that correct?
MR MKHULUTHA: Yes sir.
ADV MATHANA: Besides the nature of the sentence that was imposed in his case, do you confirm and adopt the contents of that statement as the truth and applicable in your case?
MR MKHULUTHA: Yes, it is so.
ADV MATHANA: The sentence that was imposed upon you, is it correct that it was effectively 13 years?
MR MKHULUTHA: Yes, sir.
ADV MATHANA: That is all Mr Chairman, thank you.
CHAIRMAN: Is your application for amnesty written in your handwriting?
MR MKHULUTHA: No, it was written by Thyido with my assistance. It was written with Thyido with my assistance.
CHAIRMAN: In other words the writing, the actual writing was not yours, it was his, is that what you are saying?
MR MKHULUTHA: Yes, sir.
CHAIRMAN: When was it that your mother was killed?
MR MKHULUTHA: On the 13th of May 1992.
CHAIRMAN: Were you present at the time?
MR MKHULUTHA: Yes sir.
CHAIRMAN: Did you see who did it?
MR MKHULUTHA: I would not lie because this happened at night, round about twelve midnight. People kicked the door and said Zet you are in trouble today and they were carrying an automatic rifle.
As I was listening, I could hear Kokeli Bongi's voice and after the silence, after the hail of bullets my mother was already down and I attempted to go outside, then I saw Ngxobongwana who said this dog is alive still and he tried to kick my neighbour's door.
People were already up at that time. The people did not see or identify this people, but they could see that there was a group of people going to my house, but nobody was identified.
CHAIRMAN: Did you identify the voice of Kokeli Bongi?
MR MKHULUTHA: Yes, I heard Kokeli Bongi's voice and when I went outside I saw him, because when he saw me, he said here is this dog and it is still alive and I ran into Richard Mbali's house.
But they fired once whilst I was running, but they did not hit me.
CHAIRMAN: On the 27th of August, were you involved in any matter?
MR MKHULUTHA: Yes, on the 27th of August I had a matter. I had to appear in court on the 14th of May. But that was postponed to the 27th of August because of my mother's illness.
CHAIRMAN: I thought you said that your mother had died on the 13th of May? And you say you couldn't appear in court on the 14th of May because of the illness of your mother, how is that?
MR MKHULUTHA: My mother was not staying with me. She slept over at my place because I was to appear in court on the 14th.
But the matter was postponed to the 27th because of this incident.
CHAIRMAN: Why were you in court on the 27th?
MR MKHULUTHA: I was appearing on these firearm charges.
CHAIRMAN: And what happened to that case?
MR MKHULUTHA: The court said that that firearm had disappeared and therefore the case was dismissed. I was acquitted.
CHAIRMAN: Were you and the first applicant facing the same charges on the 27th of August?
MR MKHULUTHA: Yes, we were arrested and faced the same charges.
JUDGE WILSON: When did that incident take place that gave rise to those charges?
MR MKHULUTHA: Before I went into court on the 27th, there were policemen who were in a hurry to arrest me. And therefor the lawyer had to see my Magistrate because the policemen wanted to talk to me.
And therefore Mr Peter said that he will accompany me.
MS KHAMPEPE: I don't think you understood the question. When did the incident which gave rise to you appearing on the 13th of May, happen - no, the 27th of August?
MR MKHULUTHA: What I was appearing for on the 27th of August was the incident whereby we were arrested in a kombi in which we were travelling and they found firearms in it.
But this did not happen on the 27th, but I do not recall the date but it was - we were arrested whilst we were in a meeting and I was granted a bail.
MS KHAMPEPE: When was that? Can you give an approximation? You were arrested on the 13th of May? Was it the 13th of May when you were arrested and you appeared in court?
MR MKHULUTHA: The 13th of May is the day on which my mother was attacked.
MS KHAMPEPE: You appeared on the 14th of May?
MR MKHULUTHA: This incident of my arrest was somewhere in April, but I cannot say definitely the date.
JUDGE WILSON: Were you involved in an attack on a police van?
MR MKHULUTHA: Yes, sir.
JUDGE WILSON: When was that alleged to have happened?
MR MKHULUTHA: I do not recall the date exactly. But it is exactly as you mentioned.
JUDGE WILSON: Is that the offence for which you and the first applicant appeared in court on the 27th of August?
MR MKHULUTHA: On the 27th of August I was appearing for being in possession of a firearm whilst attacking this police van.
JUDGE WILSON: And was the first applicant also appearing in court that day?
MR MKHULUTHA: We did not appear on that day. But we were arrested and appeared on the following day, they were just accompanying me.
CHAIRMAN: Was there no evidence led in court on the 27th of August?
MR MKHULUTHA: No sir.
JUDGE WILSON: Now on the 29th of August, were you going to attend a meeting?
MR MKHULUTHA: Please rephrase your question, what meeting are you referring to?
JUDGE WILSON: I am asking you whether you were going to attend a meeting on the 29th of August?
CHAIRMAN: It doesn't matter what meeting, were you going to attend a meeting?
MR MKHULUTHA: On the 29th of August we were according to the information that we got that there will be a meeting between Mpisane and the policemen in the R Block and thus we decided to go to that meeting so that should there be such a meeting between Mpisane and the Police, we could attack.
JUDGE WILSON: Who decided this?
MR MKHULUTHA: The decision was taken by myself because I said that it would be difficult for us to let them have a meeting with the policemen, so should we find them in such a meeting with the police we should just attack them.
JUDGE WILSON: Were you the leader of the Self Defence Unit, the Branch Commander?
MR MKHULUTHA: Yes, I was the leader of the SDU in general from Khayelitsha up to Nyanga East.
JUDGE WILSON: And you went to the house of Mpisane, did you?
MR MKHULUTHA: Yes, we went there to Mr Mpisane's house and he was standing outside. Unfortunately there was no meeting. When we got there, I greeted him and Eugene pointed him with a firearm and he wanted to know where is this meeting.
He did not point out the direction but he just ran away.
JUDGE WILSON: We are getting no interpretation.
MR MKHULUTHA: When we got there we greeted him and Maliqole shot him and thereafter we decided, I condoned what he did because it was a decision to prepare for anything to attack when we got to his house.
JUDGE WILSON: When you got where did Moliqole shoot him?
MR MKHULUTHA: As he was standing outside, when he started to turn into his house, that is when he shot him.
JUDGE WILSON: So he was standing outside, he started to turn towards his house and you shot him?
MR MKHULUTHA: He was running towards a different direction, not going into his house.
JUDGE WILSON: But a moment ago you said he started to turn towards his house?
MR MKHULUTHA: What I am saying is that as he was turning around the corner into a passage ...
JUDGE WILSON: And where did you go then?
MR MKHULUTHA: We went back to the L Section where I am staying.
JUDGE WILSON: You didn't go to a school where there was supposed to be a meeting?
MR MKHULUTHA: No, we did not proceed thereto any more.
JUDGE WILSON: Was there to be a meeting?
MR MKHULUTHA: Yes, there was a meeting to be held about matters affecting the branch.
JUDGE WILSON: At the school?
MR MKHULUTHA: No, the were matters to be discussed there in the branch and the matter of the money that was missing, was to be discussed as well.
JUDGE WILSON: Where was the meeting to be held?
MR MKHULUTHA: In the school.
JUDGE WILSON: Because you told the court at your trial that you ran straight to the school, didn't you?
MR MKHULUTHA: What the TRC must observe is that what we said in court was not the truth, but it was said in defence.
CHAIRMAN: After the shooting did all three of you leave together?
MR MKHULUTHA: Yes, sir.
CHAIRMAN: And you all went to L Section?
MR MKHULUTHA: Yes, all three of us.
CHAIRMAN: How do you think it was that a child got killed, how did that happen?
MR MKHULUTHA: It was just a pure coincidence but we did expect some people to be caught in the cross-fire but when we shot this gentleman we did not realise that there were children around, but we were not aiming at the child.
CHAIRMAN: So what is the cross-fire that you are talking about?
MR MKHULUTHA: I am talking about the cross-fire whereby Maliqole was hitting Bongi.
CHAIRMAN: Is Maliqole the only one that fired?
MR MKHULUTHA: Yes, he is the only one who fired.
CHAIRMAN: You didn't fire?
MR MKHULUTHA: I had an explosive, not a firearm.
CHAIRMAN: You held this explosive in your hand, so anybody could see it?
MR MKHULUTHA: No, sir. It was wrapped in a plastic, nobody would realise it.
MS KHAMPEPE: Mr Mkhulutha, when you went to Mr Mpisane's house, you expected to find members of the ISU, is that correct?
MR MKHULUTHA: Yes, Ma'am.
MS KHAMPEPE: That is because of the tip off you had received from the lady from the ANC Youth League?
MR MKHULUTHA: Yes, Ma'am.
MS KHAMPEPE: No, is that the reason why you went there armed to the teeth?
MR MKHULUTHA: Yes.
MS KHAMPEPE: You didn't go there with the intention of obtaining information about where the meeting was to take place with the ISU members and the time when that meeting was to take place, you didn't go there with the intention of seeking that kind of information? ... (tape ends) Was it conceivable in those days, you will assist me because I am also staying in the township, was it conceivable for an informer to arrange a meeting in the township where you were staying, thus opening up his cover to the whole community?
MR MKHULUTHA: What was happening is it became very clear that it wouldn't be their first meeting there, some of the residents in the R Section did notice that.
MS KHAMPEPE: Let me just interrupt you, just respond to my question. Was it conceivable in those days for an informer to meet secretly with the police in broad daylight within his own community, thus opening up and blowing his cover up, was that conceivable?
MR MKHULUTHA: Yes, it was conceivable because his real side was revealed now, we knew what his position was.
JUDGE WILSON: What do you mean by that, we knew what his position was? You found a man standing by himself outside his home, he ran away when you pointed guns at him?
MR MKHULUTHA: What I am trying to say is that the fact that they squandered the money that was donated for guns, showed that they wanted to sabotage our move.
And when we got the tip off that they are sitting with the police, it was not a police, they had some intentions, therefor we decided to go there.
JUDGE WILSON: But that information was wrong, they were not having a meeting. That is the position isn't it, your information was shown to be wrong, there was no meeting with the police at his house, but you killed him nevertheless. You tried to kill him nevertheless.
MR MKHULUTHA: Personally I do not think that that was a lie, because if it was he would not have run away.
JUDGE WILSON: Did you grab him by his vest?
MR MKHULUTHA: I did not grab him, only Kedo grabbed him.
JUDGE WILSON: So he was grabbed by his vest and guns pointed at him?
MR MKHULUTHA: Yes, sir.
JUDGE WILSON: Were you armed?
MR MKHULUTHA: No, I only had the explosive.
JUDGE WILSON: Evidence was led at the trial wasn't it, by him, that is by Mr Mpisane and by the man who was helping him Sibisa that you were all armed.
MR MKHULUTHA: Yes, he gave such evidence but only two people were armed, and even in court he did say that I was armed, but I was not.
I had an explosive and Nyamana had a pistol and the other one had an (indistinct).
MS KHAMPEPE: Do you know Victor Qobisa, the one who gave evidence in court?
MR MKHULUTHA: I saw him for the first time in court.
MS KHAMPEPE: Was he not there when you went into Mr Mpisane's house on the 29th, didn't you find him there?
MR MKHULUTHA: No, Mr Mpisane was talking to a lady.
MS KHAMPEPE: (Indistinct)
MR MKHULUTHA: Yes, he was standing outside, next to the house.
MS KHAMPEPE: And when you came in, did you see any vehicle parked outside his house?
MR MKHULUTHA: The only car that was there, was his van. Mr Mpisane.
MS KHAMPEPE: Did you make any attempt to force your way through to see whether any member of the ISU were inside the house?
MR MKHULUTHA: His house is open because it is serving as a shop as well. And thus one could see that there was no one else inside.
MS KHAMPEPE: Mr Mkhulutha, you truly believed that Mr Mpisane could have a meeting, secret meeting as an informer with members of the ISU in such a place which you yourself explain as being quite visible to anyone going pass the street?
MR MKHULUTHA: Certainly, because those were rumours that you were hearing in the neighbourhood that he was sitting in meetings with such members. And thus we were convinced that there was such a meeting.
INTERPRETER: The speaker's microphone is not on.
JUDGE WILSON: ... that he was going to hold a meeting at his shop that was open to the public?
MR MKHULUTHA: I would not know whether they would hold it inside his house or maybe in the next door neighbour, but what we decided was to go to his place first.
And that is when we asked him where is the meeting when we realised that there was no meeting, that is when we demanded to know where the meeting was held.
If we had seen from a distance, we would also spot that there was such a meeting, but we realised that there wasn't, that is why we demanded to know.
MS KHAMPEPE: With due respect Mr Mkhulutha, with your kind of explanation, really the name informer really loses its meaning.
MR MKHULUTHA: Please repeat.
MS KHAMPEPE: I mean with the kind of explanation that you have presented to us, the work informer truly loses its meaning - if an informer can have a secret meeting with the police in a public place in broad daylight.
MR MKHULUTHA: You are confusing me now because I am talking about what exactly happened because even the residents were aware of what was happening, it was blatant what he was up to.
JUDGE WILSON: But he was still a leader of the ANC?
MR MKHULUTHA: Who are you referring to?
JUDGE WILSON: To Mpisane.
MR MKHULUTHA: Yes, he was a leader in SANCO.
MS KHAMPEPE: But if the residents were aware that he was an informer, what action was taken by the residents? You were part of that as a member of SANCO, what action was taken by the community at large?
MR MKHULUTHA: Firstly, there were two steps taken because in the meeting that Thyido had already mentioned, there was a previous meeting held where I proposed that us as leaders must be given the opportunity to find out about these allegations, we were holding this meeting in Mr (indistinct) house from six o'clock up until eight o'clock, and during our discussions about the money matters, we came to a decision that this money issue must be frozen and he must just step down as a leader of SANCO and we had to give a report to the ANC Youth League and the Women's League and SANCO about our previous discussions.
And in that meeting he pretended to be pleading but his wife did say that all this is due to my husband, he is responsible for this. And that is when I realised that Bongi and Fundile Madodo held discussions, but we told them that we had meetings and what was the decision taken and there was a confusion in the meeting and thereafter there were no meetings held and they distanced themselves and after my mother's attack, they disappeared.
What happened thereafter or before, before leaving I think they did go to the ANC Regional Office whereby members thereof came to us, they came to my house and told me that they hear news that we are shooting each other and they were given an instruction to come and disarm us, but that was untrue, we never shot each other.
But we told them that all we are having is discussions, but you can go ahead and disarm us, we handed over our firearms and we went to the R Section, there was a Mr Dulah Omar and Willie Hofmeyr present there and there was a meeting to be held the following day.
I did explain to Tony that comrades you seem to come here uninformed that we are criminals, but it is not true. It is just to fulfil the aims of the Stability Unit and some members.
JUDGE WILSON: Did you say that Dulah Omar and Willie Hofmeyr were at R Section when you went there?
MR MKHULUTHA: Yes, they were there when we arrived.
JUDGE WILSON: Who were they talking to?
MR MKHULUTHA: Toni Yengeni arrived in the house and Nqosi Petani and we got into a car and went into the R Section and found them there. And we were advised that a meeting will be held tomorrow.
JUDGE WILSON: In the R Section, a meeting of who?
MR MKHULUTHA: It won't be held in R Section, but in Fawu buildings the following day.
JUDGE WILSON: What date was it?
MR MKHULUTHA: It would be somewhere in March, towards the end of the month.
JUDGE WILSON: March, what year?
MR MKHULUTHA: In 1992.
CHAIRMAN: Yes, we will take the adjournment at this stage and resume at two o'clock.
COMMISSION ADJOURNS :
CHAIRMAN: Mr Brink, is counsel in the following matter present here now?
MR BRINK: I think they have gone, I think you have released them Mr Chairman.
CHAIRMAN: ... steps are being to have a completed application form?
MR BRINK: That was being worked on by Mr Lourens.
CHAIRMAN: Yes.
MR BRINK: I don't know whether they still are, they were working in the board room, if they are still there, I don't know.
CHAIRMAN: Yes, it doesn't matter, as long as attention is being paid to that so that whether the application is heard or not at least that part of the matter should be completed.
MR BRINK: I have also notified the prison authorities about the situation.
CHAIRMAN: Yes, and is it arranged that the prisoners will be brought in tomorrow afternoon?
MR BRINK: No they will be brought here during the morning.
CHAIRMAN: The morning, right. Please listen to what I have to ask. When was the decision taken by you and your colleagues to go armed to the house of your victim, when was that decided?
MR MKHULUTHA: The decision to go to Mr Bongi Mpisane was taken on the day of the 29th after getting the information from this girl about the meeting that will occur amongst Mr Mpisane and his group and the ISU Unit.
CHAIRMAN: The fact that you went there armed, meant quite clearly that you were expecting a shut-out and not a discussion?
MR MKHULUTHA: Definitely, we went there with the intention to attack them.
CHAIRMAN: And when you opened fire on him, quite clearly there is no suggestion that he himself was armed?
MR MKHULUTHA: Honestly he was not armed.
JUDGE WILSON: He was running away at the time?
MR MKHULUTHA: When we got to him and we tried to ask him, he ran away but he was not armed.
CHAIRMAN: How many rounds of ammunition were fired, do you know?
MR MKHULUTHA: Because an automatic gun was used, I cannot exactly say how many shots were fired, whether it was two or three.
CHAIRMAN: Was the child that was eventually found dead, was that also as a result of the use of the automatic?
MR MKHULUTHA: I would say because her death resulted from this shooting incident.
CHAIRMAN: We haven't heard how much money was involved that gave rise to what you say was the problem between you and Mpisane, how much money was involved?
MR MKHULUTHA: Firstly I would like the TRC to listen to this carefully and you mustn't just say it was only Mpisane who took this money. It was not only himself, it was several of them in the Trevor Vilakazi Branch they have got seven sections from the R Section to the Q, to the D,M,P,J,S,K and then L Sections.
Each and every house would have to contribute R5-00 from every Section. The money was not finally counted to say how much was the final amount, but every household had contributed already.
CHAIRMAN: Up to now you don't know how much was contributed?
MR MKHULUTHA: Till to date, I wouldn't lie and say what the amount is.
CHAIRMAN: Isn't the money supposed to be put into a bank account?
MR MKHULUTHA: This money was not to be deposited into a bank account, but it was donated because of the war that was raging and thus it was meant to buy armoury to protect the community.
CHAIRMAN: No, I know about your decision to protect the community, there is no doubt in my mind that that is your case, I am now concerned with trying to find out how much was involved. Was there somebody who was appointed as Treasurer to take control of the money?
MR MKHULUTHA: The money for this ammunition was to be counted by the Executive in my presence and it should be handed to myself, then I should by the ammunition and report back, handing over the ammunition back to the Executive.
CHAIRMAN: Is your answer to my question that you were appointed as Treasurer?
MR MKHULUTHA: Yes, in the SDU section, yes, the money was to be handed to me.
CHAIRMAN: Was Mpisane the only man, him and his group the only people who were collecting or were there others who were collecting money?
MR MKHULUTHA: It was Mpisane and his group who were collecting the money.
The were nominated solely for that purpose.
CHAIRMAN: Have members of his group been called to account for the money they collected?
MR MKHULUTHA: They were all called. The TRC must take note that this money issue was in 1991, but till 1992 there was no follow up or not progress made in terms of getting this money from them.
CHAIRMAN: In other words those people have not been called upon to account?
MR MKHULUTHA: We had four sittings with them and then we finally went into a general meeting and all structures of the organisation.
CHAIRMAN: Yes, I am waiting to hear the answer.
MR MKHULUTHA: In that meeting it became very clear that places were being attacked and burnt but yet people had donated to make preparations for their security.
CHAIRMAN: ... money, I am talking about whether the others were called upon to account?
MR MKHULUTHA: I say they were all called, they were all present in all the meetings that were called.
CHAIRMAN: And nobody rendered an account of how much he collected and where the money was?
MR MKHULUTHA: They did not explain, but they just said that they do have the money. We demanded that they must produce the money so as to be able to use it for the purpose it was collected for, but in vain.
JUDGE WILSON: Since that time are these people still members of the ANC?
MR MKHULUTHA: At this time, they are still calling themselves ANC members, but that was the last meeting we were with.
JUDGE WILSON: You went to prison after that, you have been locked up for years, haven't you?
MR MKHULUTHA: Even since I was sent to prison, they are not in the vicinity any more, they are not residing there any more.
JUDGE WILSON: Do you know if the ANC has made any attempt to get this money from them that you say they had?
MR MKHULUTHA: Yes, there was a commission of inquiry into this matter because we did report to the comrades that members had collected this money and yet it is not being produced and the residents are being attacked.
JUDGE WILSON: Who held the commission of inquiry?
MR MKHULUTHA: It was Bongi Jonas.
JUDGE WILSON: Who is he?
MR MKHULUTHA: He is a member of the MK who was residing in our area.
JUDGE WILSON: Is he still there?
MR MKHULUTHA: He is still there, but I am not sure as to where exactly is he staying or working.
CHAIRMAN: Do you know what happened to the commission of inquiry?
MR MKHULUTHA: The commission of inquiry that was led by Jonas, it became a problem to the residents, because he never came back to report. Even myself, I am not aware as to what happened to this commission ultimately. Nobody is aware.
MS KHAMPEPE: When was the commission of inquiry held?
MR MKHULUTHA: This commission of inquiry was held in April after the incident that took place at my house.
It happened after a shooting incident on school premises when Ditini was among those people where there was an argument over this money issue and they went to the Regional Office where Tony Yengeni was instructed to come and disarm us and investigate what was happening.
JUDGE WILSON: What year was it, April of what year?
MR MKHULUTHA: Sorry, April 1992.
JUDGE WILSON: And you say he was instructed to disarm you?
MR MKHULUTHA: Tony Yengeni, Diba and Lisa Nonqwana were sent by the Region to come and disarm us.
JUDGE WILSON: Regional Committee of the ANC?
MR MKHULUTHA: Yes, sir.
JUDGE WILSON: When were they sent?
MR MKHULUTHA: They came to my house I think it was in the beginning of April. It was in the morning and they told me that they got information that we are shooting each other and therefor they have come to disarm us.
I told them to respect the organisation, I will do as they please, but what they are saying, it is not true but it is just these men who are just causing all these unrest in the community and then we left with them to go to the R Section, that is where we found comrade Dulah Omar and Willie Hofmeyr who said that we will meet at Fawu Buildings to a meeting the following morning.
I told them that what you have just done now, have put us in a difficult situation because we are facing the enemy. And truly on that day the ISU's killed Video Fopo and in that meeting there were many people present who wanted to know how did it come that this man was shot, but Ngxobongwana was also there with his group and they were armed, but there was a lot of dissatisfaction in the meeting and an interim committee was to be elected until the 17th of May to look into this.
Before this 17th of May, my mother was attacked on the 13th of May and therefor the next meeting could not be held and the commission of inquiry could not be followed up and thus everything was left uncertain.
CHAIRMAN: Do you wish to re-examine the witness?
ADV MATHANA: No sir.
MR BRINK: I haven't had a chance to put questions yet, Mr Chairman. I wonder if a copy of his application couldn't be placed before him? Well the whole one, but I will be referring in the main to paragraph 10 on page 13. You've got your application in front of you, I want you to look at the part which is written in Xhosa, page 13 of the application, you will see it ringed on the top right hand side of the page.
Have you got the page?
MR MKHULUTHA: Yes, I've got number 13, page 13.
MR BRINK: Read paragraph 10(a). You can read it to yourself obviously. The translation which I have is not very elegant, but what you said there I was trying to prevent the battle between the residents, because there was some signs of that. I presume you mean that you were anticipating trouble between residents supporting the ISU and the SDU's?
MR MKHULUTHA: Yes, that is what I said exactly. It is true that I was trying to prevent the war between the residents and these groups of people.
MR BRINK: And you went on unfortunately they were planning to kill me.
MR MKHULUTHA: That is what needs to be corrected in that statement, it is not exactly what I said. I am not talking about myself. I am talking about the SDU's because if these people can kill us, they will do whatever they want with the community and all those municipal councillors who were appointed by that regime were going to be in charge of our communities, if they killed the SDU's.
MR BRINK: Do I understand the ISU's were endeavouring the hamper the activities of the Self Defence Units and that the people as a whole supported the SDU's?
MR MKHULUTHA: That is correct sir.
MR BRINK: So they were planning to kill you or your comrades, or other members of the SDU?
MR MKHULUTHA: The people who were planning to destroy the SDU's, it was the efforts of the ISU's who were collaborating with some of the people from our communities.
So they wanted the communities to worship those councillors that they did not vote for, so now it was apparent that the ISU's did not have a way to fulfil their mission if the SDU's were around.
MR BRINK: The vast majority of the population supported the SDU's isn't that correct? I mean the population in the township?
MR MKHULUTHA: That is correct sir.
MR BRINK: There were very, very few, you can probably count it on the fingers of one hand, who supported the ISU isn't that correct?
MR MKHULUTHA: Yes, I will agree with you there.
MR BRINK: When did it come to your knowledge or when did you begin to believe that Mr Mpisane was an informer?
MR MKHULUTHA: I can say I began to believe that he was truly an informer on the 27th of August because when these ISU's came, they didn't know our faces, they couldn't identify us.
But Ngxobongwana went to them and he even told the residents that they mustn't allow them to arrest me. Really when they came to arrest me, the residents began to fight until Mr Peter and the Magistrate came and said he would like to see our leader and the residents themselves decided to go with me when I was arrested.
And now it was clear that he was an informer and the residents themselves could see.
MR BRINK: This was on the 27th of August when you appeared in the Magistrate's court, is that correct?
MR MKHULUTHA: Yes sir that is correct.
MR BRINK: That was on the day when you saw Mr Mpisane by chance at court?
MR MKHULUTHA: Yes sir, that is correct.
MR BRINK: What was he doing there?
MR MKHULUTHA: Since then each time we would go to court, they were there with Mr Rossouw. Those were the people who were in charge there of the cases.
And they used to caucus and the residents could see them caucusing with these people. So it was clear that he was an informer.
MR BRINK: Was it your evidence that you saw Mr Mpisane at court in the company of policemen from Khayelitsha?
MR MKHULUTHA: Yes, that is my evidence. Because they also got into the kombi and we saw them alighting from the police casspir, that was Mr Mpisane and the policeman.
MR BRINK: You spoke to Mr Mpisane at court, didn't you?
MR MKHULUTHA: Yes, I had a discussion with him. He said it is because now there was a conflict between the residents and then - so Mr Mpisane was actually discouraging the fact that we would expose our behaviour in front of the White people.
So I got very interested because we were worried if he is actually collaborating with our enemy they won't have problems in trying to get rid of us. So I wanted to know exactly what was happening with him.
MR BRINK: Did you ask him why he was associating so freely with the police?
MR MKHULUTHA: What I told him about I was actually referring to Mr Ngxobongwana. Because when we were talking with Mr Ngxobongwana we had a disagreement, I gave him a clap and I said to him if it is you and Mike and Mr Yabola, when I look at you, he looked like the people who are actually loyal to the community, but I am wondering if you can see that the other people are collaborating with the police.
Because even yourself, you look like a person who is actually working with the police and then he said we would talk about that later.
MR BRINK: Did you understand that that was Mr Mpisane or not?
JUDGE WILSON: Who did you give a clap to?
MR MKHULUTHA: It is Mr Ngxobongwana. Because I was trying to explain that we are trying to talk to Mr Mpisane because now the residents are actually fighting with Mr Ngxobongwana's wife and the others. And actually he refused to talk to me, that is Mr Ngxobongwana. We ended up in a fight, but we still continued to discuss with Mr Mpisane.
I am trying to explain what actually happened that day.
MR BRINK: I want to know about Mr Mpisane, you told the Committee that on the 27th of August you became convinced that he, Mr Mpisane, was an informer because you saw him with the policeman from Khayelitsha, is that correct?
MR MKHULUTHA: That is correct sir. The Bellville South policeman, Rossouw, is from Bellville South.
MR BRINK: You say he had nothing to do with the ISU's in Khayelitsha, he was merely investigating?
MR MKHULUTHA: Whom are you talking about?
MR BRINK: The policeman you've just named?
MR MKHULUTHA: Those are the people, it is Rossouw and Nienaber who were actually the perpetrators there, they are the people who actually made the plan to recruit the people to work for them.
MR BRINK: The first part of the interpretation was cut off from me, I have to put this again. Was Mr Rossouw and Mr Nienaber, the two policemen, were they in any way involved with the ISU's in Khayelitsha, yes or no?
MR MKHULUTHA: Yes, they were together.
MR BRINK: So they were involved in the Khayelitsha unrest?
MR MKHULUTHA: Yes, Rossouw even stated that they had 18 months working with those people. Even our legal representative confirmed this, that was said in November 1993.
MR BRINK: And it was that, as you've said, made you convinced that Mpisane was an informer? ... (tape ends) You talked to Mr Mpisane at court, forget about anyone else, I want to know whether you spoke to him, Mr Mpisane at court on the 27th of August in the court?
MR MKHULUTHA: Yes, I talked to him.
MR BRINK: What did you say to him?
MR MKHULUTHA: You said I mustn't talk about the others, but what actually made me to talk to Mr Mpisane is because of the residents who were fighting with Mr Ngxobongwana's wife and the others and now I told them that this is a disgrace because we are fighting in front of the nations, because the residents couldn't take it any more and then Mr Mpisane said we can talk about this thing.
MR BRINK: Did you accuse Mr Mpisane when you spoke to him at court of being an informer?
MR MKHULUTHA: I didn't say that directly, but it is what I had inside me when I talked to him, I didn't talk like a person who knows everything that was happening because I was actually trying to investigate.
I wanted to get the truth.
MR BRINK: Wouldn't you investigate first hand by asking him or accusing him of being an informer?
MR MKHULUTHA: Yes, if there were no signs, I was going to ask him directly but now it was difficult because there were signs. Actually he was going to be aware that I know everything.
MR BRINK: Did you know why he came to court? He wasn't charged?
MR MKHULUTHA: I don't know why he was in court because there was no case for him. The only residents who were there, were accompanying me.
MR BRINK: Did you arrange to hold a meeting with Mr Mpisane when you saw him at court on the 27th of August?
MR MKHULUTHA: I don't want to lie, I never made any arrangements with him but when I looked at him, it was like we could get him and he could explain about Rossouw and Nienaber, how far are they in their collaboration.
MR BRINK: Is it your evidence today that you did not arrange with him that a meeting should be held to discuss various problems?
MR MKHULUTHA: We never came to any conclusion, even though we went to his house, he was not aware that we were coming.
MR BRINK: Please, keep to the point. I am asking you whether when you met him at court, that is Mr Mpisane at court, whether you had a discussion with him in the course of which you suggested holding a meeting to discuss problems to which he agreed, that is all I want to know?
MR MKHULUTHA: No, we didn't finalise anything, we just said we were going to talk about this thing, but we didn't finalise anything.
MR BRINK: Was he agreeable to holding a meeting, or was a meeting never suggested?
MR MKHULUTHA: I cannot say so because we didn't finalise anything about the meeting but we just said there is a need to sit down and discuss this thing, but it was never finalised whether we were going to have a meeting or what and when?
MR MKHULUTHA: Didn't you suggest to him that a meeting should be held at the 28th of August 1992?
MR MKHULUTHA: No. This is what I said in the court, but it was not true, this is part of the lie that I said in the court. Don't even look at that thing.
MR BRINK: What was the point of lying in court about that? Because you said in your evidence apparently, you saw Mpisane by chance at court, that you discussed the need for a meeting in order to sort out the problems and you said that Mpisane was agreeable to the holding of such a meeting and that a meeting would in fact take place.
And you suggested that the meeting was to be held the following day, that is the 28th of August, but it couldn't have been held on the following day, because you were only granted bail on the 29th of August. But why did you tell the court about his being willing to meet with you and discuss the problems?
MR MKHULUTHA: I am trying to explain because in court we were trying to defend ourselves, we were trying to defend ourselves so this place is not like the court so that is why I am actually trying to explain what actually happened.
JUDGE WILSON: One point I would like to clear up, is the position that he was standing, talking to a woman, Mr Mpisane that is, standing talking to a woman outside his house when the three of you appeared?
MR MKHULUTHA: Yes, that is correct sir.
JUDGE WILSON: You walked up to him, (indistinct) grabbed him by the vest or T-shirt, pulled him and guns were pointed at him?
MR MKHULUTHA: That is correct sir.
JUDGE WILSON: He managed to get loose, ran away and you killed him with the woman standing there? Is that what happened?
MR MKHULUTHA: The woman did nothing. The woman didn't even run away, he is the one who ran away.
JUDGE WILSON: And you killed him, shooting him in the back?
MR MKHULUTHA: Yes.
JUDGE WILSON: Thank you.
MR BRINK: I think for the record, he didn't in fact kill him, they attempted to kill him.
JUDGE WILSON: Sorry, I keep saying that, you shot at him with the intention of killing him, shot at him with a machine gun, is that so? And you refer to two or three shots, there were considerably more than that, weren't there?
MR MKHULUTHA: Yes, since I have told you that we were using an automatic machine gun, I cannot actually tell how many bullets and how many rounds.
JUDGE WILSON: Who was using it?
MR MKHULUTHA: It was Maliqole.
MS KHAMPEPE: Mr Mkhulutha, is Mr Ngxobongwana still alive?
MR MKHULUTHA: No, Ma'am.
MS KHAMPEPE: (indistinct)
MR MKHULUTHA: Mr Ngxobongwana was killed by some of our members, the SDU's.
MS KHAMPEPE: And when was he killed.
MR MKHULUTHA: If I am not mistaken, I think it was in 1992, December 1992.
JUDGE WILSON: Did you say by some of your members?
MR MKHULUTHA: Yes sir.
CHAIRMAN: What did he say?
MR MKHULUTHA: I have a request, there is something else that I would like to get clarity on.
CHAIRMAN: Yes, please do.
MR MKHULUTHA: I want to explain that I made a statement initially, in a form that was written in Afrikaans and then I attached this document in that form which explained everything that we did as the SDU's and the killing of Mr Ngxobongwana and the other town councillors who were Goniwe and the others and the people who were attacking and the explosives.
The attacks that we made to the police premises and the explosives, but now I am not sure, I don't know who actually - whether you were told about this but Mr Steyn signed form this before the end of the case.
Because we didn't know that, we thought that if we are here, you are going to get all that information and some of the things that we have mentioned here, are also mentioned in that document, so I wanted the TRC to get that information.
If you don't know anything about that, I wanted you to know that I actually took an initiative to write that document because even when they were attacking, I was the leader. Even the attack at the Nyanga East, I was the one who was actually leading the group. I don't know whether you got that information.
But I am not sure how does the TRC work, but we are prepared to explain all those things.
CHAIRMAN: When was that document given to the TRC?
MR MKHULUTHA: I think it was in 1996, but I can't remember the month, but the form that I attached on, Mr Steyn with Mr Thyido, signed. Mr Steyn is from Brandvlei prison.
CHAIRMAN: Can you throw any light on all this, Mr Brink?
MR BRINK: Unfortunately not, I have never seen such document.
CHAIRMAN: ... to the TRC, they are not usually referred as a matter of course to you?
MR BRINK: They are referred to the Amnesty Committee if they are addressed to the TRC, but they clearly relate to amnesty and they would normally be sent up to the 10th floor.
But no such document has ever been brought to my attention.
CHAIRMAN: Perhaps his counsel will know. Do you know anything about it?
ADV MATHANA: I have no personal knowledge of such documents Mr Chairman, except that he informed me about that. He said that they had been addressed to the TRC, I have no personal knowledge of them.
MS KHAMPEPE: Mr Mkhulutha, who is Mr Steyn?
MR MKHULUTHA: Mr Steyn is the Chief in our section in Brandvlei prison.
MS KHAMPEPE: Are you saying you first completed an application which was in Afrikaans, in which you annexed the document you are referring to?
MR MKHULUTHA: I made an application, I got the response from the Truth Commission saying that he was actually refusing my application because it was vague, but I thought there was a lot on my mind, I can try and prepare a document and then I sent it and then I received a form that was written in Afrikaans where it was actually telling me to explain again.
And then I explained about my sentence and then I also prepared this document and attached it there so that the TRC can try and select the information that they need, but there is a lot of things involved, so it is not very easy for me to write them down.
There was also a cassette that was taken from me. I wanted to tell the comrades to write down and seek for amnesty and tell the Truth Commission everything that we did.
JUDGE WILSON: Who took this cassette?
MR MKHULUTHA: It was taken in prison, but I saw Mr Thyido now in possession of this cassette. Now, even now, this cassette is here.
JUDGE WILSON: Who is in possession of it?
CHAIRMAN: The first applicant.
MR MKHULUTHA: It is with Mr Thyido, the one that is sitting next to me.
CHAIRMAN: He is in possession of the cassette?
JUDGE WILSON: So he says. You say he is in possession of the cassette now?
MR MKHULUTHA: Yes.
CHAIRMAN: Is counsel for the applicant aware of it, do you think that it is important for your client's case that what they are talking about, is placed before us as evidence or not, that is your decision.
ADV MATHANA: Mr Chairman, I have not listened to the context of the tape, but during my consultation when he mentioned some other incidents, I came to the conclusion that they were not related with this present one because it was separate acts committed on separate dates, separate venues, separate victims, under separate circumstances.
CHAIRMAN: For which they are not seeking amnesty?
ADV MATHANA: For which they are not seeking amnesty as far as this application is concerned.
JUDGE WILSON: No, but are there other applications, do you know if he has made an application on some other application in respect of amnesty for these other events?
ADV MATHANA: I am not aware that he has made any other application, except as he has just tried to explain that he says that he - as he was applying for amnesty with respect to this particular one, that he thought that if he could annex the others as well, that they were going to be handled together.
CHAIRMAN: Will you take final instructions now as to whether what we are required to do? What is it that he is seeking amnesty for, is it quite clear in your mind that the only amnesty he is seeking at present or at all, are the matters that are set out in the application forms before us?
ADV MATHANA: Very well, if we could adjourn Mr Chairman, I will take instructions.
COMMISSION ADJOURNS - ON RESUMPTION
MR BRINK: ... being made and I don't know, Mr Mathana might be able to sort that out for us, if they had been made, I can check with the data base in a matter of minutes.
CHAIRMAN: Applications for amnesty, not merely a document in support of the present application.
MR BRINK: No, if other applications had come in, if they haven't come in because they haven't been sent and then (indistinct), but if the contention is they have - he has sent in other applications relating to other matters, then I can check that.
ADV MATHANA: Thank you Mr Chairman. According to my instructions no separate applications have been submitted in respect of these separate incidents and they were not submitted because they were under the impression that if they made one application and substantiated that - if they submitted one application in support of it submitted the information relating to the other incidents, it was going to be enough and that on the date of the hearing, the Committee was going to consider all of the incidents. That was their impression and that is why they failed to submit applications in respect of those independent acts.
But in so far as this particular application is concerned, they are not going to be of any help.
CHAIRMAN: All that information is collateral and is not directly concerned with the issues that we are concerned with in this application?
ADV MATHANA: That is correct Mr Chairman.
CHAIRMAN: We must proceed with the applications that are before us?
ADV MATHANA: Yes, Mr Chairman.
CHAIRMAN: Yes, thank you. Any re-examination you have of these witnesses?
ADV MATHANA: No, Mr Chairman. Mr Chairman, I shall deal with them together because their circumstances are the same.
First of all regarding the submission of their form on the prescribed form, I will ask the Committee to take into consideration the we are dealing with illiterate applicants here and persons who from the moment that they had to submit their applications, did not have the advantage of expert legal assistance.
Because of that, it should be expected that they will not know what material to put in their application, that will be relevant in making their applications successful. They will know a lot of things, they will be in possession of many facts, but they will not be able to select those that are going to be helpful to them in substantiation of this application.
CHAIRMAN: But that is the purpose of leading evidence.
ADV MATHANA: That is correct Mr Chairman. Now the impression unfortunately has been created now, when or after the consultations have taken place between themselves and myself in preparation for the hearing, the impression now is going to be created that they are deviating from the contents of the application to a certain extent, but the truth of the matter is that the nature of their evidence should have been the nature of their applications in the first place - nothing has changed.
Their evidence which is being presented today is what they consider to be the truth. When they submitted their applications and out of ignorance of the requirements of the law, they obviously were still under the impression that they were going to go to a court of law, to the same circumstances to a court of law, where they would be in a position of being accused and obviously they were still labouring under that impression that they were still being prosecuted and they had to be defensive in the setting out of their circumstances of this particular offences.
But had they had this advantage of legal representation at that stage, they would have known that all that is required of them at this present moment and that is going to save them at the present moment, is nothing but the truth.
Had they had that opportunity, I submit Mr Chairman, we would not now be dealing with applicants who seem to be untruthful because apparently their credibility is supposed to be suspect at this particular moment.
As far as the requirements of the Act is concerned Mr Chairman, I submit that the applications have been submitted in the proper or prescribed manner, complying with the Act. I submit Mr Chairman, that the acts they have been able, I submit that they have been able to show that the acts for which they had been convicted and for which they are now seeking amnesty, can be associated with a political objective.
Their background, the background to the commission of the acts Mr Chairman, shows that they were in a situation at the time prevailing in the townships, a situation that was causing them to act in the manner in which they did and the situation had been caused by an agency of the State.
Indirectly, some persons had become victims in the sense that although their object is the State, the object of their act is the State, they have to focus their attention on the instruments of the agency of the State in the form of the - the person that they regarded as the informer, Mpisane.
Therefor I submit that their action which was directed at Mpisane was in the final analysis an action which was directed at the State.
As far as the death of a person who was totally unconnected with this incident, I submit to the Commission that under the circumstances in which that occurred, they have been found guilty of something they had no direct intention aimed at that particular victim.
CHAIRMAN: It doesn't have to be aimed at that particular victim, I mean when you open fire with an automatic pistol, as an ordinary man you must know that people are likely to be injured.
ADV MATHANA: I understand that Mr Chairman, the point is for purposes of this application for amnesty, I am bringing the argument that they could not have intention to achieve anything by killing that victim.
The battle is not with that person, it is not associated or connected with that person. Although legally they cannot escape conviction if they fired under those circumstances, legally, but now we are dealing with a political situation where it is necessary for them when they targeted a particular victim, they were supposed to be have been having a specific objective in targeting that particular victim.
JUDGE WILSON: But there was no reason, no urgent reason to shoot at this man at that time, while he was riding down a crowded lane where children were playing in the street, was there?
ADV MATHANA: If they feared, if they anticipated that the victim was going to join the members of the ISU together with the rest of the informers and warn them of their imminent attack, if they didn't want that to happen, then possibly ...
CHAIRMAN: Where was the imminent attack?
JUDGE WILSON: What imminent attack?
CHAIRMAN: ... where they were, he turned around and they just opened fire on him. Now they knew who he was, they were colleagues together, they worked politically together, they could have come to him at any time and talked to him.
They knew that he was alone and they opened fire totally disregarding whether - of the consequences. They are just fortunate that the man didn't die.
ADV MATHANA: May I response Mr Chairman? If they at that time, since they were expecting that there was going to be a meeting to take place and it was their intention to attack those persons who would come together at that meeting, obviously they cannot allow anybody to tip those persons off. ...(tape ends)
JUDGE WILSON: ...afterwards, why didn't they let him run and follow him to the meeting so they could attack? They made no attempt to attack a meeting, did they? So they weren't preventing anybody tipping off the impending attack, there was no such impending attack, was there?
CHAIRMAN: No, they shot him and turned around and went home.
ADV MATHANA: According to their evidence they gave up because when they lost sight of this person, because they considered it at that stage that their plan had fallen through when they lost sight of the person, of the victim.
And since in their - as far as they were aware, they could not establish at that stage where the venue was going to be, it was not going - that is why they would consider it that their plan had fallen through.
JUDGE WILSON: Yes, so shooting him would not help them establish the venue and they could not launch at attack? Could they?
He was their sole source of information, shooting him would not give them any information to enable them to launch the attack, that is the problem with this argument.
There is no suggestion from either of the applicants that they thought that they would be able to continue with the attack if they got rid of him.
ADV MATHANA: That is correct sir.
MS KHAMPEPE: Mr Mathana, isn't your problem the fact that the evidence of your client is to the effect that the cardinal reason for going there, was to launch an attack at the ISU members and they thought they would either find them at Mr Mpisane's place or gather information about where they were going to meet in order to launch such an attack?
ADV MATHANA: Yes, that is their evidence.
CHAIRMAN: Do you expect anybody to believe that three men armed would go to Mr Mpisane and say, now tell us where is the meeting going to be and Mr Mpisane sees these three men heavily armed.
Were they really expecting him to give them the answer? If he had an answer to give?
ADV MATHANA: Obviously he was not going to give them that answer.
CHAIRMAN: If he - he never had the answer.
JUDGE WILSON: You must also have regard for the fact that the sole information they had, was given by some young girl that morning and on that basis they killed this man. On the basis of that, they shot this man, on the basis of that information that some young girl told them there was going to be a meeting.
ADV MATHANA: Yes, if they had been hearing about these particular meetings to the extent that they began to believe that they were in fact taking place, then they could be expected to proceed to Mr Mpisane's house.
CHAIRMAN: You see, one gets the impression that on the 27th they spoke to Mr Mpisane when they saw him at court and one got the impression that it was a fairly normal discussion, they did not part as enemies.
And two days later, they go there heavily armed, they have made up their minds that they are going to kill him and others who are going to be with him at a meeting. Now that is the one impression that one is left with, the other is that they operate on rumours, it is rumoured that this was happening, it is rumoured that that was happening and they act on rumours.
That is how it seems to have been operating in that area? And they act heavily armed, based on what has been fed to them as rumours.
ADV MATHANA: Mr Chairman, the position is as they have also explained, since they didn't have evidence to prove that this person was an informer, they had to follow this rumour up and in an attempt to do so, and on the day when they approached Mpisane, they had several reasons.
One of them was to see if there was not still a chance that they could win, in fact that they could win him back.
MS KHAMPEPE: Mr Mathana, with due respect, that is not the evidence before us. There is no evidence that the intention was to follow up the rumour, they acted because they believed the young lady who advised them that Mr Mpisane was an informer and also based on their observation which had happened earlier on, on the 27th when they were in court when Mr Mpisane was seen openly associating himself with the police in court.
So they actually believed that he was an informer. They did not intend to verify that information.
ADV MATHANA: Yes.
JUDGE WILSON: And they told us several times that the purpose of going there was if there was a meeting being held, they were going to kill.
They weren't going to try to convert him, there was a meeting, they were going to kill. Didn't they say that repeatedly?
ADV MATHANA: That is correct sir.
MS KHAMPEPE: Do you wish to proceed further Mr Mathana or are you through?
ADV MATHANA: Is there any other aspect that the Committee would like to hear me on?
CHAIRMAN: It is for you with regard to the Act, it is for you to apply your mind to the relevant portions of the Act and satisfy us that your clients' case falls within the provisions of those sections.
ADV MATHANA: Thank you sir. As far as the next aspect of the requirements, I have already covered it in fact. The fact that they when they attacked Mpisane that they had as the object of their act, the State in a sense that they eventually were trying to eliminate the ISU and also eventually in trying to eliminate the township municipalities against which the community was standing.
CHAIRMAN: You see that is a political aim, that is that they were opposing a municipality which was imposed upon them. We are talking about the attempt to kill this particular individual, do you understand? There was no suggestion that he was part of the municipality. Do you understand?
So that has got nothing to do with their political wish of doing away with the local municipal government, that might have been one of the aims of their political organisation of SANCO. SANCO was determined to make the locality ungovernable, because they did not like the municipality.
Now, we are now talking about Mpisane, Mpisane was not a member of that council or that municipality.
The argument on Mpisane can only be that they were going for Mpisane because Mpisane was looked upon as an instrument used by the police.
ADV MATHANA: That is my argument, Mr Chairman.
CHAIRMAN: Because he was somebody who was used or was associated with the police, they were entitled to kill him? Is that it?
ADV MATHANA: Because that is what they said they were supposed to be doing.
CHAIRMAN: Because somebody is known to associate with the police, then you are entitled to kill him?
ADV MATHANA: ; Not merely associated, but being used by the police to inform on them, or their activities Mr Chairman.
CHAIRMAN: And their conclusion was based on rumours? ... that they were convinced because on the 27th they saw him at court while they were there and he was talking to the police, so that is proof beyond doubt as far as they are concerned that because he was seen talking to the police, Mr Mpisane knows that they are at court, he sees them, they talk to him after the occasion to fix a venue for a meeting and a time for a meeting, and that is the background.
On the 29th they go there armed, fully determined to wipe him out whether he is seen with the police or not? That is the picture that we are left with.
ADV MATHANA: Unfortunately Mr Chairman, the wisdom with which they acted, that particular day, may be what as cause has led them to this situation at the present moment, but at that particular time, they were believing that this person is in fact an informer and that therefor they were supposed to deal with him, in the manner in which they did.
JUDGE WILSON: Would an informer openly speak to the policeman at court when there are all sorts of people around? Would an informer arrange to have meetings involving about six or eight other people at his shop, open to the public, can one possibly believe that that anybody would think that that was the conduct of an informer?
ADV MATHANA: It cannot be expected of a reasonable person to believe that under those circumstances that person is in fact an informer, but as I've already maintained, we have to deal here with what was happening in their minds at the time.
Whether they truly believed what they believed at that particular moment in time, which led them to act in the manner in which they did.
CHAIRMAN: These are people who have been from their own evidence, involved in all kinds of activities, where violence and firearms were used, they have been dispossessed of their firearms by certain units of the ANC, so these are experienced people? They are not novices, they are commanders of the SDU in the area or leaders of the SDU, they are not just the ordinary rank and file?
JUDGE WILSON: And they are not children, and they weren't children at the time.
MS KHAMPEPE: Mr Mathana, the problem that I have is that they believe that Mr Mpisane was an informer and Mr Mpisane is not an ordinary person within the community, he was a senior member of the ANC and a member of the SDU, he was charged at one stage with an important responsibility of collecting funds for the purposes of buying arms on their version, you see.
Now if you then believe without any further information only because you actually have seen a person of Mr Mpisane's standing openly associating himself with the police, at a public place for that matter, in court, I mean, I find it highly improbable to believe that a person of Mr Mpisane's status would be in a position to do that, that would be too risky, isn't it?
He is a well known figure in the community and to be seen openly associating with the police, would be putting his life in danger and his credibility as a senior member of the Organisation and to believe that a meeting with the ISU could be arranged and convened at his house, for a person of his standing, that is highly improbable.
That is the problem that I am sitting with.
ADV MATHANA: Yes, I have already conceded that under those circumstances a reasonable person would not believe that you were dealing with an informer, but I am also maintaining that if one were in their shoes and one was dealing with a person who has broken away from the Organisation ...
JUDGE WILSON: They are the only people who say that, he was still a member of the Organisation, he still held office in the Organisation.
CHAIRMAN: The ANC hadn't disowned him?
ADV MATHANA: But then they are talking about SANCO, that is the organisation from which he broke away, not the ANC.
CHAIRMAN: Is the real reason for what they did the question of him being found in their view to be an informer, is that the reason or is the real reason the other one, that he and a group a whole lot of others, who had been entrusting with collecting money for the purchasing of weapons, had despite a Commission of Enquiry failed to disclose to them what had happened to the money?
Is that the reason why he was killed? I understand you to lead that they looked upon him as an instrument of the government, as an informer. Now there is some evidence that their gripe against this man was not because he was an informer, but because he had used certain money or not accounted for the money. Which is the case?
ADV MATHANA: They could have come to this conclusion by unreasonable deductions, through unreasonable deductions. But if they believed truly that this person having broken away and knowing that there were some funds missing and for which he was still required to account, funds that were supposed to be used in furtherance of their objects, it could have been easy for them even if unreasonably, it could have been easy for them to believe that this person will surely seek protection from the other side, from the enemy and therefor allow himself to be used by the enemy in order to be protected against them, because he must know that they are still wanting something from him.
So under those circumstances even if a reasonable person cannot accept that, they should believe that he must have been collaborating. If in their situation under these circumstances I have just mentioned they did believe so, then I request the Committee ...
CHAIRMAN: In other words even if their belief was irrational?
ADV MATHANA: In their minds, they were dealing with that particular situation of an informer, they might have come as I have already mentioned, to that conclusion by irrational means but that is what they may have been believing. Their (indistinct) therefor under those circumstances would be influenced by what they envisaged to the truth or the correct situation.
Although it should have been unreasonable in the eyes of somebody else.
CHAIRMAN: And we have not heard any evidence about anything which Mr Mpisane did to indicate what information he had been passing on to the ISU. What was he informing them on, there is no evidence about what he is supposed to have informed on.
ADV MATHANA: That is unfortunate Mr Chairman, that is also something that I thought that I was going to be able to come up with before we came to the hearing, but unfortunately I was not able to get information in that regard, because there was no - I was not able since they are inside, I was not able to investigate those aspects.
MS KHAMPEPE: But no evidence was led today in that regard. They had an opportunity to do so.
ADV MATHANA: I am saying they did not have hard core evidence of this.
CHAIRMAN: Not even soft core evidence, let us put it that way, no evidence at all, about what he was supposed to have informed them on which the police did not already know in that area.
ADV MATHANA: That is correct Mr Chairman, and that is why I am saying that is what I also picked up in my consultation with them and that is why I am mentioning the fact that unfortunately I was not able to investigate it further so as to come with such evidence and present it today.
MS KHAMPEPE: But where would you have started to investigate that? That information must reside in the persons of the two applicants who acted as they did at the time when they acted against Mr Mpisane.
ADV MATHANA: The applicants or the other members of the SDU, would or could have provided me with information which I would have investigated, but as I mentioned this is not an excuse on my part, but I had very short time between seeing the applicants and today which is the date of the hearing, and I did mention this to them and I did ask them if anybody could help, somebody who is outside could help me find this information regarding Mpisane being an informer and I think it was Mr Mkhulutha who said that he was going to send out a message so that before we came or at least even this morning, that I could have such evidence, but unfortunately I could not be given such evidence, that is why I could not present it.
CHAIRMAN: Mr Brink, is there anything that you wish to say?
MR BRINK: It seems Mr Chairman, that Mr Mpisane was shot for one or more reasons. Either that he was an informer and I have problems in that regard which the Committee have raised with my colleague, for those reasons especially a very trenchant point that Committee member Mrs Khampepe drew to my colleague's attention regarding the position of this man in the ANC and the whole notion of holding public meetings with the ISU, or he was shot because he stole the money.
If he was shot because he stole money which is untested and unproved, that doesn't qualify in my submission in terms of the Act or the shooting was in some for self defence, but certainly at the very least there was an affray and that is based upon the paragraph 9 (a)(4) of the first applicant's application which he now says in incorrect.
But I do have difficulties with this application and I cannot support it.
CHAIRMAN: So you have difficulties, what you really are trying to convey is that the applicants have difficulties.
MR BRINK: I have difficulties in endeavouring to give any measure of support to the application.
CHAIRMAN: Let me just ask you, it is quite clear isn't it, that if they killed this man, if they shot him because he stole money, that can hardly be justified as a political offence for which amnesty can be granted, isn't it?
ADV MATHANA: I agree fully Mr Chairman.
JUDGE WILSON: Similarly if it was a belated vengeance killing that wouldn't entitle them to amnesty either, would it?
ADV MATHANA: I agree sir.
CHAIRMAN: If the applicant's mother was killed and there was a belief that Mpisane was involved in it, that is what it means isn't it?
ADV MATHANA: Yes, if they believed that Mpisane was involved and obviously if they as a result of that decided to take revenge, then they would not qualify, that is correct.
CHAIRMAN: Thank you very much. Tell you clients that the Committee will consider this application and give its decision in due course.
Mr Brink, is the position that as far as the proceedings are concerned tomorrow, we are not likely to proceed in the morning, counsel are not available tomorrow?
MR BRINK: Yes, I understand that to be the position, that they will be here at two o'clock. Whether the matter will conclude during the course of the afternoon, that is impossible for me to say because I understand the application is being opposed by Mr Swart, who represents one of the next of kin of one of the victims.
CHAIRMAN: Is he here?
MR BRINK: He was here this morning.
CHAIRMAN: Is he aware of the fact that this matter was not going to be heard in the morning?
MR BRINK: Yes, I think it was discussed in your chambers Mr Chairman.
CHAIRMAN: Oh, so he was present?
MR BRINK: Yes.
CHAIRMAN: Very well, we will now adjourn and resume at two o'clock tomorrow afternoon.
