CHAIRPERSON: Good morning everybody. Today we have two matters on the role, we will be commencing with the application of Mr Dlamini. Before we start, I would just like to quickly introduce the Committee.
We are all members of the Amnesty Committee of the Truth and Reconciliation Commission. On my left is Mr Jonas Sibanyoni. He is an attorney from Pretoria. On my right is Mr Ilan Lax, he is an attorney from Pietermaritzburg, and I am Selwyn Miller, I am a Judge from the High Court in Transkei.
I would just like to ask the legal representatives to kindly place themselves on record.
MR WILLS: Thank you Mr Chairperson and members of the Committee, I am John Wills, attorney from Pietermaritzburg. I represent Mr Thulasizwe Raphael Dlamini.
I am representing Mr Dlamini through the auspices of the Legal Aid Board.
CHAIRPERSON: Thank you.
MS THABETE: I am Ms Thabela Thabete, the Evidence Leader in Cape Town, thank you.
CHAIRPERSON: Thank you. Mr Wills?
MR WILLS: Thank you Mr Chairperson, I call Mr Dlamini to testify.
THULASIZWE RAPHAEL DLAMINI: (sworn states)
CHAIRPERSON: Just before we start Mr Wills, if I could just inform the people attending the hearing that the proceedings are all, all the proceedings are simultaneously interpreted and to benefit from the interpretation, you have to have one of these devices. They are available from the Sound Technician or the person in front of the hall.
The translation will be into English and Zulu, channels 2 and 3 respectively. Mr Wills?
EXAMINATION BY MR WILLS: Thank you Mr Chairperson. Mr Dlamini, you have applied for amnesty be filling out the form, the prescribed annexure, Form 1, and you filled this out on the 8th of May 1997 at Ixopo, is that correct?
MR DLAMINI: That is correct.
MR WILLS: Do you confirm the contents of this statement?
MR DLAMINI: That is correct.
MR WILLS: Sometime later, a certain person who was working for the Truth Commission approached you, and asked you to make a further statement, and this person was a policeman by the name of Mbatha and he took a statement from you which you signed under oath, in August 1998, the 18th of August 1998, is that correct?
MR DLAMINI: That is correct.
MR WILLS: Do you confirm the contents of this statement?
MR DLAMINI: Yes, I do confirm it.
MR WILLS: And the purpose of making this statement, was in order to supplement the details that you had given in your application, is that right?
MR DLAMINI: Yes, that is correct.
MR WILLS: Whereabouts were you born Mr Dlamini?
MR DLAMINI: I was born at Springvale in Ixopo.
MR WILLS: Where is that? In the Ixopo area?
MR DLAMINI: Yes, Springvale.
MR WILLS: You joined the ANC some time, can you tell us when that was?
MR DLAMINI: I joined the UDF in 1982 and I joined the ANC in 1989 when I was still residing in Johannesburg.
MR WILLS: Now, the period for which you - the period in which you committed the acts in respect of which you are applying for amnesty, was after 1990.
Can you tell us what the conditions were like in your home area during this time?
MR DLAMINI: There was a lot of violence, we had a problem with the IFP, who were actually killing and attacking people in the area that I was living in.
They would shoot at us from a very long distance. At some point, they would burn people's homes, steal cattle, shoot at old people and children. Even in the town area of Ixopo, the old people could not go and get their pension money, because they were not free to move around in town.
At that point, SDU's were formed. The community decided that SDU's should be then formed.
MR WILLS: You say that the IFP were attacking people, which people were they attacking?
MR DLAMINI: ANC people.
MR WILLS: Were you still at this stage residing in the Springvale area?
MR DLAMINI: No, I was now at Plainhill, at the Noqwega area of Ixopo, that is where I moved in 1990.
MR WILLS: This area, Plainhill, is this a ward of the Ixopo area?
MR DLAMINI: It is a rural area of Ixopo.
MR LAX: Mr Wills, we have heard about Noqwega already, so we know where the area is. We have had a previous applicant who came from that area. It is fine.
MR WILLS: The Plainhill area that you lived in, what was the political party, what was the main political affiliation of the residents in that area?
MR DLAMINI: There were members of the ANC, but there were members of the IFP in the area.
MR WILLS: You said that the community decided to establish an SDU, what was your position in regard to this SDU?
MR DLAMINI: They were desperately needed, because people were no longer sleeping in their homes, they had fled to Umzimkulu, their houses were being burgled and goods stolen from their homes.
The SDU's were needed. There was no free movement in the Ixopo area, it had been demarcated into two.
MR WILLS: I am asking you Mr Dlamini, were you appointed to serve any particular role within the SDU?
MR DLAMINI: Yes.
MR WILLS: Can you tell the Committee what that was?
MR DLAMINI: I was the Commander of the SDU's in my area.
I would normally consult with everyone before we actually carried out any activity.
MR WILLS: Yes, and who were the other members of your SDU, if you can recall their names, please give them to the Committee.
MR DLAMINI: Those that I can still remember were Gacha Denza, Bongeni Nkabani, myself and others. In our area there were different wards, therefore people from other areas could come to assist for a short while, but this did not happen all the time.
MR WILLS: Yes, I am going to get on to the issue of the other SDU's in the area, but I just want you to concentrate on the SDU which you commander at this stage.
Did you have any firearms in this SDU?
MR DLAMINI: No, but we had home made guns, or "uxashu".
MR WILLS: You, yourself, did you ever acquire a firearm?
MR DLAMINI: Yes.
MR WILLS: Can you tell us how you acquired that firearm?
MR DLAMINI: Because of the situation in the area, where we did not have firearms and Inkatha was attacking us day and night, I was compelled to actually remove a pistol, a 9 mm pistol from one coloured person, so that we could have one firearm in the area.
MR WILLS: What do you mean remove?
MR DLAMINI: When cars entered the area, or came through in the area, we would check exactly who they were, whether they had come to attack or maybe they had come to seek information on what was happening.
We will search the cars and when the man came out of the car, I saw his gun on the holster, and I just removed it because I needed it and we also needed the firearm in the area.
MR WILLS: You mentioned earlier that there were other areas and from your statement it is clear that there were other SDU's in the area. You have mentioned that there was Pat Mbakazi. What was his position?
MR DLAMINI: I knew Pat Mbakazi as a person who was very loyal to the ANC. Although we had not discussed his affiliation at length, I understood him to be a member of the ANC, because he would normally assist ANC members who were in need.
Therefore I knew him to be a member of an SDU.
MR WILLS: Which SDU was he a member of? Where did that SDU come from?
MR DLAMINI: From Donnybrook.
MR WILLS: And you also mention a person by the name of Mnini Dlamini and where did he come from?
MR DLAMINI: From Top, an area very close to where I lived.
MR WILLS: And did he have any relationship with any SDU, and if so, which SDU?
MR DLAMINI: He was very close to mine and also another one from Plain and also the one at Top.
MR WILLS: Sorry, there is something I forgot to mention earlier, to ask you earlier.
What job are you presently doing now?
MR DLAMINI: I am a member of the VIP Protection Unit.
MR WILLS: That is part of the South African Police Services, is that correct?
MR DLAMINI: No. I work for a company called Caliba, Executive Protection Services.
MR WILLS: And have you ever had, have you ever been a member of Umkhonto We Sizwe or had any training, military training?
MR DLAMINI: No.
MR WILLS: And were there ever any MK persons who assisted your SDU operations or provided weapons for you?
MR DLAMINI: As far as I am aware, I do not know any of them. There may have been. I once heard that there were some who had arrived in the area. At that time I was not residing at that area.
MR WILLS: You have applied for amnesty in respect of three incidents, is that correct?
MR DLAMINI: That is correct.
MR WILLS: The first incident is one which you refer to on page 3, that is page 42 of the bundle members of the Committee, Mazabkweni, where you say we chased IFP attackers and warding off their attack, and then you say three people were killed, is that right?
MR DLAMINI: That is correct.
MR WILLS: Can you tell, you detail this incident a little bit more fully in your statement in support of your application, and can you tell the Committee about that first incident at Mazabkweni. Tell us exactly what happened and what your involvement was.
MR DLAMINI: As I mentioned earlier on, the IFP would arrive day and night, steal stock and burn people's homes down. We had devised a programme that during the daylight, we would just walk around in the areas, just checking what is going on, and if everything is okay.
After the Macubeni incident where sheep were stolen, in fact his cattle, everything was stolen, I and a person called Tim, went to that area just to check what was going on. We did not have any firearms on us.
As we were walking around and we were on top of a hill, we saw two persons and when we looked at them closely, we could not identify them.
I asked them who they were because they were a distance away. Where we were standing, there was a gumtree forest. These people did not respond, they started shooting and when they did this, we actually ran and hid behind the trees and they fled.
We chased after them for a few paces, and we returned because we did not have any firearms on us. We were just trying to frighten them.
When we returned, we were walking along the road, and we met Pat Mbakazi. He was in a blue or navy Golf and he stopped and he said he was looking for us, because he had heard that we were in that area.
I then told him that we had just been shot at by two persons who had fled, and I pointed the direction in which they fled. And then he got into the car, and took a road into the left. We went into the forest.
We heard the car speeding off and we went back and went home. When we arrived, we just sat around at home and we did not see them. After a while he told us that he had caught them.
He did not mention that he had shot at them, but our intention was that because they had shot at us, if we catch them, we would shoot at them too.
After a few days, in fact the following day, I heard on the radio that three people had been killed in that area. I then assumed that it must be the same people, who had actually shot at us because when he told us the story, he actually admitted that he had caught up with them. That is why I have applied for amnesty.
CHAIRPERSON: Sorry Mr Wills, Mr Dlamini, did I hear wrong, did you not say that when you and Tim saw them when you were on top of the hill, you saw two people?
MR DLAMINI: That is correct, there were two.
CHAIRPERSON: But then you say that you heard that three people had died?
MR DLAMINI: Yes.
CHAIRPERSON: So, one of the three couldn't have been a person that you saw when you were on top of the hill?
MR DLAMINI: That is correct.
MR LAX: If you will allow me, Mr Wills, why have you applied for amnesty in respect of these people? What did you do to them?
MR DLAMINI: It is because when the incident started, I was present and I knew that those people were attackers.
MR LAX: But, you haven't done anything wrong in respect of those people? You didn't assault them, you didn't injure them personally?
CHAIRPERSON: You didn't give an instruction that they be killed?
MR DLAMINI: I said because the fact that those people were killed, had something to do with me, because they had shot at us and I told some people that they had indeed shot at us, and they chased them and killed them.
I don't know with regards to the third person, whether they caught up with him along the way or whether he was with the two, but that is what he told me.
MR LAX: You see, you never saw the three deceased, did you?
CHAIRPERSON: The bodies?
MR DLAMINI: No, I didn't see them.
MR LAX: So in essence, you don't even know if they are the same people that you saw, they may be three completely different people?
MR DLAMINI: It is possible, but from what he had told me, I had a belief that it must be those people whom I had encountered earlier.
MR LAX: Please carry on Mr Wills.
MR SIBANYONI: Just one question, Pat never said he killed them. He only said that he found them, did I understand you correctly?
MR DLAMINI: Yes, but I heard on the radio that people had been killed, and he, Pat, had actually been chasing such people.
MR WILLS: Thank you. You say that you met up with Pat and you indicated to him that these people had shot at you and he went chasing off in his car. Did you hear anything after that in the sense of ...
CHAIRPERSON: Gunfire or anything like that?
MR DLAMINI: Yes, I heard gunshots, but I was not sure whether it was Pat or them, because there was normally gunfire and there was normally gunshots that were going off in the area, any way.
MR WILLS: But when you heard this gunfire, was it shortly after Pat had gone to chase these people, or - let us know what the position was.
MR DLAMINI: It may have been about ten minutes after he had left.
MR WILLS: I am going to turn now to the second incident that you refer to.
MR LAX: Sorry, before you do Mr Wills. Just if you can assist us Mr Dlamini, do you have from the papers it seems that you are not sure when this happened, and we don't have even a month that it is likely to have happened in.
Can you try and assist us by narrowing the time frame, the time period?
MR DLAMINI: It is difficult.
CHAIRPERSON: Can you start off by giving a year?
MR DLAMINI: It must have been in the middle of the year.
CHAIRPERSON: Which year?
MR DLAMINI: It might have been early 1993, but I am not certain about it.
MR LAX: Well, was it winter, was it summer. If it was winter in Ixopo, you would certainly remember that?
MR DLAMINI: It was actually raining as it is today. It could have been in summer.
MR WILLS: Regarding the second incident, you say in paragraph 9(a)(iv) of your affidavit on page 42 of the bundle, that you refer to Bantam, in a battle between IFP and ANC ...
CHAIRPERSON: Sorry Mr Wills, is that Bantam or Batong?
MR WILLS: Thank you Mr Chairperson.
MR LAX: Sorry Mr Wills, just one last thing. This person Tim, that you talk about, who was he, Tim, where was he from?
MR DLAMINI: He was one of the people who came from Top and he was also involved in the protection of the community.
But I did not know whether he was a member of the SDU or not.
MR LAX: And you don't know his surname or his family that he came from?
MR DLAMINI: I forget his surname, but I will remember it. It is Weldon.
MR LAX: Weldon?
MR DLAMINI: Yes.
MR LAX: One last thing before we move on Mr Wills, the coloured man whose firearm you took, did you know him? Was he from your area?
MR DLAMINI: I did not know him, and he did not come from our area.
MR LAX: Thank you.
MR WILLS: Right, you say in relation to the Batong incident, that in a battle between the IFP and the ANC near Nkalu river, there were three casualties from the IFP and some injured from the ANC.
From the latter part of your statement, you know that three people were killed in this battle, is that right? Three IFP people were killed in the battle, is that right?
MR DLAMINI: Yes.
MR WILLS: Can you tell us in detail what occurred in this incident?
MR DLAMINI: During this war between the ANC and the IFP, Pat Mbakazi together with someone called Xude, I am not sure whether this was his real name or a nickname, they came to me. We usually worked together, assisting each other in the protection of communities around Ixopo when such people were attacked by the IFP.
Pat arrived at Plainhill and he enquired how things were going. This took place before - the incident at Batong took place before the one at Mazabkweni. Pat enquired just where these people stayed or where they stood or where they attacked from.
I showed them where they stayed and I also told him that sometimes they would come and get into the forest or come up from the river's side to attack us.
He then requested that these people should be attacked, so that they should stop attacking us and he suggested that he will come with his colleagues and we should also assist him when he goes to that area.
I then consulted with Mnini, whom I saw first. I told him that Pat was requesting that a group of people should accompany him to attack that area.
Mnini was opposed to that idea. I then did not consult anybody else, because we were actually not together all the time. We did not meet all the time, so I did not see the others.
MR WILLS: This person you consulted with Mnini, was this Mnini Dlamini from Top?
MR DLAMINI: Yes.
MR WILLS: Okay, carry on.
MR DLAMINI: Pat left and said he would return with his group, and I told him that Mnini and them would not involve themselves to assist in that fight.
They just wanted the fight to be only in our area, that is defending ourselves if we were attacked. The following day Pat returned, he was in his Golf, I was not around at that time. I had left with Gacha Denza. We were just walking around the area.
It was in the late afternoon, I saw the Golf and although I did not tell Gacha where these people were going, I knew where they were proceeding to.
MR WILLS: Where were they, what direction were they travelling?
MR DLAMINI: They were on a route towards the Roman Catholic mission, which is actually across the Batong area. There are roads and forests, SAPPI forests around that area.
MR WILLS: Where did you think they were going to?
MR DLAMINI: I assumed that they were actually going to that area, because Pat normally did not travel towards that area.
MR WILLS: Which area did you think they were going to and what did you think they were going to do?
MR DLAMINI: I thought they were going to Batong, just as he had told me what he planned on doing, that is attacking these people.
MR WILLS: Was he travelling in the same direction as the places that you had pointed out?
MR DLAMINI: Yes.
MR WILLS: Carry on.
MR DLAMINI: Later on we went to enquire what was happening, because we heard gunshots and we saw the Golf approaching. We did not head in that direction, and they passed by.
I am not sure whether I saw him at Ixopo or near my home, but he then said that there were three people who had been killed and he also said that they had been fighting with these people.
I did see somebody who was actually bleeding from the arm.
CHAIRPERSON: Sorry Mr Wills, in this matter, Mr Dlamini, you have told us that it was Pat who asked where the people who used to attack your area, came from and you had pointed out that area. Pat then asked you and your people from your area for assistance, that was declined.
You didn't go on the attack at all, why do you apply for amnesty in respect of that incident?
MR DLAMINI: I had pointed the area to Pat, that is showing him where the attackers came from, and that is how they came about to be attacked.
MR LAX: So you are saying you were instrumental in the attack taking place and therefore you are applying for amnesty?
MR DLAMINI: Yes.
MR LAX: Can you help us again, just with the time frame when this happened? You said this happened before the last incident you described.
We have established that that first incident was early 1993. So this was before early 1993, either during early 1993 but before the last incident? Was it summer, was it winter, was it 1993?
CHAIRPERSON: Can you give us any idea as to how many days or weeks before the previous incident you described, it took place?
MR DLAMINI: I think that maybe it was about three weeks or a month after the first incident. I am not very sure of the year.
MR LAX: Sorry, it was interpreted as after, three weeks or a month after, but you told us this was before the previous incident?
MR DLAMINI: Yes, I think it was a mistake, an interpretation mistake, it happened before.
MR LAX: Thank you for that.
MR WILLS: You say that you actually went to investigate this issue and you actually saw some dead bodies? Three dead bodies, is that correct?
MR DLAMINI: Yes, that is correct, I saw these three dead bodies.
MR LAX: Hang on a second, his earlier evidence was that Pat told him that there were three people that were killed, and he only saw one guy that had been injured? He didn't say that he himself went there.
I know he says it in his statement.
MR WILLS: Let me clear that up. How did you find out about this incident? How did you find out that people had been killed?
You might have found, can you just explain the circumstances surrounding that?
MR DLAMINI: Pat told me about that.
MR WILLS: Yes, and then did anything else happen? Did you go and investigate the matter or not?
MR DLAMINI: I went after he had told me and I actually saw the dead bodies.
CHAIRPERSON: Sorry, so you actually went and saw the dead bodies at Batong?
MR DLAMINI: Yes, it was actually along the river that demarcated Batong area and Plain area.
MR LAX: And you say you don't know who those people were?
MR DLAMINI: No. I was seeing them for the first time.
MR WILLS: The last incident you applied for amnesty for, is the incident where you say you were involved where you shot a person, is that right, in Ixopo?
MR DLAMINI: Yes.
MR WILLS: You say one person was killed in this incident, is that right?
MR DLAMINI: Yes.
MR WILLS: Do you know the name of this person?
MR DLAMINI: I only discovered this year what his surname was, it was Sithole. But I do not know what his name was.
MR WILLS: Can you explain to us exactly what happened in this incident?
MR DLAMINI: On that day there had been a lot of violence, there were Security Force soldiers and they were travelling in about 15 vehicles in Ixopo.
The IFP was actually busy stabbing people. There is one boy from Hlungelwa family who was caught by the soldiers, and he was stabbed.
The soldiers were actually not protecting ANC members. They might as well not have been present. Such a person called Dindelwa Poswa was caught and they removed his jacket. The soldiers were actually not performing their duties.
The Ixopo area had been demarcated into two, there was an IFP rank and shops and also ANC rank and shops in the (indistinct) area. On that day, we were actually walking around. I wanted to go to my sister's house, it was around two o'clock in the afternoon.
My sister resided in a shack settlement in Ixopo. On my way when I was just about to cross the main road outside the Ixopo area, I met two or three girls and they were walking very briskly and I enquired what was going on.
They said they are not sure what is going on, but somebody must be dead at a certain spot where a van was parked. On that day I had an AK47, which I had exchanged with that pistol which I had removed from the coloured man.
I had on a long coat and before I approached the spot, I was about 100 meters away from the spot, I removed the AK47 from the safe and put it on the ground and I covered it with a cardboard box. It was just alongside the road.
I put the AK about the distance that is from my table to the Committee's table, that is the distance between the AK and the road.
CHAIRPERSON: So you are saying the table where Mr Wills is sitting, that distance?
MR DLAMINI: Where the Committee is sitting.
CHAIRPERSON: Where we are sitting? That is about six paces?
MR WILLS: Yes, I accept that.
MR SIBANYONI: The question was, is the distance you are estimating from you are sitting to where your attorney is sitting?
MR DLAMINI: No.
CHAIRPERSON: The distance that the gun was from the road?
MR DLAMINI: Let me explain it, I left the main road and the distance where I was from the main road, would be from here to the shops outside.
I actually approached, or I was approaching the spot where the van was parked. On that road where I was travelling, I removed the AK and I just put it next to that foot path and I actually covered it with a cardboard box and I continued on my way.
I actually met, when I arrived there, there were four policemen and I asked them what was going on because the van's siren was on. I thought that maybe one of the ANC members had been injured or killed, and I would have to contact that victim's family to inform them or assist them.
The policemen said nothing had happened. I then proceeded to leave. There was a group of IFP people, there may have been more than 30 and they were calling out at me. They were actually whistling at me. I actually told the police that these people were calling me and they said I should actually get into the van and they would actually take me to the ANC rank.
I told them that I was actually going to my sister's house, and they said the were leaving. I then went on my way. As I was walking, a distance from about there to the road, I just saw people running after me, a group of people running after me. I then thought that these people are armed because I would sometimes see them armed with assegai's and the likes.
I then thought that I would run away and hide, because there was a long grass, along there. I ran very fast and when I actually passed on that spot where I had hidden my AK, I picked it up and they were very close to me. I then turned and asked them what was going on. They just stopped.
I asked again what is going on and there was this one person near the foot path, and I asked him again and he was proceeding towards me with an assegai.
I asked for three times, for about three times what was going on and when I asked for the third time, I cocked the AK47 and he proceeded towards me. I realised that he was actually wanting to stab me and I shot him.
I realised that he was dead because he just fell. I had actually shot him on the head. The rest then fled and I didn't fire the gun again. I also ran away.
MR WILLS: In respect of all the incidents that you have mentioned, you have never been prosecuted or arrested and questioned apart from your processes with the Truth Commission?
MR DLAMINI: No, I have never been prosecuted.
MR WILLS: Thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR WILLS
CHAIRPERSON: Thank you Mr Wills. Ms Thabete, do you have any questions to ask Mr Dlamini?
CROSS-EXAMINATION BY MS THABETE: Yes Mr Chairman. If Mr Chair would bear with me, Mr Dlamini, you say you were appointed, were you appointed or elected as a leader of the SDU's?
MR DLAMINI: I was elected by the people from the area.
MS THABETE: Did you undertake any training of any sort in handling or the use of firearms?
MR DLAMINI: No. When I grew up I used to actually have a...
MS THABETE: So you learned to use a firearm through your experience, you were never trained?
CHAIRPERSON: Sorry, he was saying when he grew up?
MR LAX: Sorry, we didn't hear the rest of the translation, it didn't finish. If you wouldn't mind repeating it please.
He said when he grew up, and then it just went dead after that.
INTERPRETER: I beg your pardon, he said he had been using a firearm to shoot birds.
MS THABETE: What evidence did you have or how did you know that the people who were stealing cattle, were IFP members and not criminals?
MR DLAMINI: This they would do in broad daylight, when we would see them. Because we did not have firearms, we were actually afraid or scared to follow or apprehend them.
MS THABETE: Regarding the first incident at Mazabkweni, you say you never saw the bodies, but you heard from the radio that there were three people who were killed, is that correct?
MR DLAMINI: Yes.
MS THABETE: After you had heard from the radio that there were three people killed, didn't you ask Pat whether he killed them?
MR DLAMINI: I asked him.
MS THABETE: What did he say?
MR DLAMINI: He actually told me after a while, because where he came from, Donnybrook is far from where I stay, he told me that he had actually caught up with them.
And from the way he said it, I realised that they had actually killed them, because he just laughed. They would have not have chased them for nothing because even if I had caught up with them, I would have killed them too.
MS THABETE: I am a bit confused, I thought you said in your evidence earlier on, he did not say whether he killed them or not, and you did not ask at that time. So you are saying you asked later on, after you had heard from the radio and he laughed, so you assumed that he had killed them, is that correct?
MR DLAMINI: When he returned from that area, he did not tell me that he had killed them. I actually heard on the radio the following day and I also saw him later on and I asked him how their mission had gone.
MS THABETE: Regarding the third incident, you say that you later found, you didn't know who the victim was, but you later found out that he was from the Sithole family? My question to you is when did you find out and how did you find out that he was from the Sithole family?
MR DLAMINI: Although I do not remember exactly, I once worked at the Ixopo rank, as a Rank Manager. We would sometimes discuss about the past, just what the violence was like in the area.
I don't remember who said it, but somebody mentioned that a person was from the Sithole family and he also said that he also played for a team owned by Bongeni Mzizi.
MS THABETE: What I was trying to find out is that you wrote a statement, assisted by one Mr Mbatha from the TRC, which was on the 18th of August 1998, which is this year, so what I was trying to find out is why didn't you include it in your statement or didn't you know at that time that the person was from the Sithole family?
MR DLAMINI: I had not found out by that time.
MS THABETE: You spoke about an AK rifle, where did you obtain that rifle from?
MR DLAMINI: There is some person from Johannesburg, who would sometimes arrive to deliver guns to those people who had actually bought them. When he arrived, I had this pistol from the coloured man.
We then discussed that with regards to the situation in the area, I should actually exchange with him, that he gives me the AK and I give him the pistol. I owed him, there was a balance of R200-00 which I had to pay for the AK, but unfortunately I did not have money at that time, so I didn't pay it.
MS THABETE: The last question, you say you sold your firearm. Why did you sell it, if I may ask?
MR DLAMINI: I had no further need for it because the violence had subsided.
MS THABETE: I have no further questions Mr Chairperson.
NO FURTHER QUESTIONS BY MS THABETE
CHAIRPERSON: Have you finished?
MS THABETE: No further questions.
CHAIRPERSON: Thank you. Mr Wills, any re-examination?
MR WILLS: No re-examination thank you Mr Chairperson.
NO RE-EXAMINATION BY MR WILLS
CHAIRPERSON: Mr Sibanyoni, do you have any questions?
MR SIBANYONI: Yes, Mr Chairperson. Mr Dlamini, did you tell Pat that you are applying for amnesty for the incident at Mazabkweni and Batong?
MR DLAMINI: No. I did not tell him because I would have not been able to tell him, because he died.
The person who I could have told, was Xude. Pat is already deceased, so I could not have told him.
MR SIBANYONI: Did you tell Xude?
MR DLAMINI: I haven't been able to see him. I don't know whether he is still residing in the area that he was before because I knew Xude through Pat.
MR SIBANYONI: You said as you were leaving the taxi rank at Ixopo, people started chasing you. Did they know that you are a member of the ANC?
MR DLAMINI: They knew me very well.
MR SIBANYONI: Why were they chasing you?
MR DLAMINI: It was obvious that they wanted to kill me. That was normally what they did to attack people, injure them, kill them. I also knew that what was going to happen to me as they are chasing me.
People who were armed, would not just chase me for nothing. Although I did not see guns, I knew that they would have them.
MR SIBANYONI: When you were shooting at these person at Ixopo, were you defending yourself or were you furthering any political aim?
MR DLAMINI: I was defending myself. If I had wanted to just kill the IFP, I would have actually shot at all of them, because I actually had 36 bullets in the magazine.
I specifically shot at him, because he was going to stab me.
MR SIBANYONI: Did you report to your SDU about that incident, did you tell them what happened?
MR DLAMINI: We discussed it.
MR SIBANYONI: Thank you, no further questions Mr Chairperson.
CHAIRPERSON: Thank you. Mr Lax, do you have any questions?
MR LAX: Just one question Chairperson. When did you become Commander of the SDU in your particular part of (indistinct)?
MR DLAMINI: It was in 1983.
CHAIRPERSON: Do you mean 1993 or 1983?
MR DLAMINI: Sorry, sorry, excuse me, it was 1993, I made a mistake.
MR LAX: How many people were part of your Unit?
MR DLAMINI: There were other people who would just assist.
MR LAX: I am not interested in people from other areas. I am aware that there were people from other areas, I am saying in your Unit.
MR DLAMINI: I am trying to explain, there was Gacha, Bongeni, myself and Lindelwa, those are the people that I remember quite well. The four of us.
There would be others who would just assist.
MR LAX: With regard to the second incident you described, that was actually the first one in chronological sequence, the Batong incident, you basically wanted to launch an attack on Batong in, if I could put it bluntly, in retaliation for their attacks on you? Is that right?
MR DLAMINI: That is not what I wanted. We wanted to actually attack them when they came into the area in broad daylight, but when the people were attacking them, or when they went to attack them, I also supported them because they were responsible for attacks on us.
Even though I did not participate in the attack, because I had no firearm, I just supported them.
MR LAX: But you wanted to get people to go and attack that area. That was your evidence in the beginning. You said you discussed with Mnini Dlamini from Top which was another SDU in your area, you wanted them to come and assist you with this attack. That is how you described it, you didn't describe it as waiting for them to come across the river to attack you and then defend you.
You described it as an attack on that area. The fact that you then spoke to Mbakazi and you pointed out the area that should, where the boundaries were so that he would know the correct place to go and attack, and you knew he was going to drive there with his vehicle and attack, how can you say you were waiting for them to come and attack you and then you would defend yourselves?
MR WILLS: Sorry Mr Chairperson, my recollection of the evidence was slightly different to that that the Committee member, Mr Lax has put to the witness. My understanding of the evidence was that it was Pat who wanted to initiate the attack.
CHAIRPERSON: Yes. I think it was Pat who, my recollection is that it was Pat who suggested that and who asked where these people who are attacking, come from and it was pointed out and then it was the other Dlamini, Mnini, was approached and he said he is not in favour of it because he would rather fight on their territory and defend, rather than attack, and that is why Dlamini didn't want to go and that is why he couldn't gather people from his area to support the attack because they preferred to defend. That is what my understanding was.
MR WILLS: Yes, that was my understanding and also, a slight difference from what was put by Mr Lax, but it might have an importance when it is put to the witness, my understanding was that the witness communicated Pat's request to Mnini, as opposed to planning.
CHAIRPERSON: Yes, he communicated it, then Mnini said no, he preferred to fight in his own territory, but the witness said that he wasn't opposed to Pat's request, in fact he supported it, he wasn't against the attack.
MR LAX: It doesn't substantially change the fact that you were in favour of the attack. Why were you in favour of the attack? Why didn't you wait for them to attack you?
MR DLAMINI: Because there were people who were willing and ready to help us out, we would have not prevented them if they were willing and able to do so.
MR LAX: But you see, you didn't know who the actual attackers were, you were just sending them into the area to go and attack that area.
They could have been attacking innocent people for all you knew?
MR DLAMINI: With regards to the actual perpetrators, are you referring to that?
MR LAX: I am saying to you if you had waited for the people from Batong to come to your area and attack you, then the people that you would have, with Mpangaze's attack have assaulted or killed, or defended yourselves against, would be the people who were not innocent victims, they were people in the process of attacking you.
If however, you sent Mpangaze across the river, to that area, he wouldn't know who to attack, he would just attack anybody he saw there. All you did was define the boundary, you didn't say to him go and kill Joe Dlamini, go and kill Blose, go and kill Mthetwa, you didn't say that?
MR DLAMINI: I did not say that he should go. He enquired from me just where the attackers came from and where did they attack from. I gave him that information that this is where they would attack from, and where they came from.
I did not specifically tell him this and that house is responsible or what I did was tell him where they came from, and where they launched their attacks from.
MR LAX: The point stays the same. It was against your policy to attack areas, you have told us that, you knew that. Why did you tell him, no don't do this, I am not in favour of that, it is against our policy?
MR DLAMINI: I would not have been able to do that, because he was also aware that we were being attacked day and night, and I would not have actually prevented him from doing what he wanted to do.
I actually just gave him the information that he requested. I could never tell him not to go there, because maybe people might have turned around and said, and been accused of letting my people be attacked, if I do not want people to go and attack those perpetrators.
It could have happened that I may have been accused of siding with those people, so I could not actually have said that they could not go, or I could not have directed them to a specific house. I could not have done that.
MR LAX: So you were more worried about accusations than carrying out your duties as a Commander, which is to follow policy?
MR DLAMINI: Are you referring to the people in my area?
MR LAX: Well, you knew what your policy was as a Commander, not to attack people willy nilly, yet you were more worried about being accused than following the correct policy and in the process, probably innocent people died?
MR DLAMINI: I do not understand quite well, I was aware of the policy that we should not go out and attack, but I could have not stopped anybody else because I did not know what his plan was, whether he would have gone across the river or what they were going to do specifically. Their programme did not involve me.
MR LAX: But they were assisting you, they were there to assist you, they were there to prevent your community being attacked in the future, that is what you told us?
MR DLAMINI: Yes. If somebody approaches you with a problem, if maybe he says he has a problem with the men or the women of the house, and you offer your help, you would not necessarily ask how they were going to help you because it means that person has a plan of how they are going to help you, to assist you.
MR LAX: Yes, except that this was not an ordinary situation. This is a situation of semi-war and you are the Commander of your area. There is a duty on you to make sure that your targets are the proper targets. There is a duty on you, if you want us to give you amnesty for this thing, to explain to us what steps you took to make sure that the people that were killed, were the right people, were the people who were attacking you.
Not just anybody from that area, do you understand the point the point I am trying to make?
MR DLAMINI: It did not occur to me that they were just going to kill anybody. As far as I knew, they also had policies of their own. I thought that maybe they would meet the other group in a camp or maybe they had a plan of how they were going to go about doing this. I could not have enquired just who or what they were going to do when they arrived there.
MR LAX: Just one last thing, you said you grew up using a firearm to shoot birds. What sort of firearm was this?
MR DLAMINI: It was a long gun that you would actually put the bullets in front, and cock it. It was used to actually shoot birds.
CHAIRPERSON: One barrel?
MR DLAMINI: Yes.
MR LAX: What sort of bullets did you put in it?
MR DLAMINI: Very light bullets which actually had a hole at the back and the front was actually round in shape.
MR LAX: So it was an air gun? It didn't have gunpowder in it?
MR DLAMINI: Yes.
MR LAX: From what you described, you described a pellet, it would have been a pellet gun that was fired with air? Is that right?
MR DLAMINI: I do not know what a pellet gun is.
MR LAX: The little bullets that you referred to was small, maybe about 2 mm's by 2 mm's, they were round. The one front is rounded, the back is hollow slightly?
MR DLAMINI: Yes, they were rounded at the front and they were shaped the way you indicated, at the back.
MR LAX: That is right, and they are about 2 mm's square more or less?
MR DLAMINI: They were very small.
MR LAX: Correct, yes. Thank you Chairperson.
CHAIRPERSON: Mr Dlamini, when did the political conflict come to an end in the Ixopo area?
MR DLAMINI: It was before, just before the elections in 1994.
CHAIRPERSON: And do you know approximately when you shot and killed that person who you later learnt to be Sithole, can you give an approximate date of that incident?
MR DLAMINI: I am not sure, but I think that the police would know. The police who actually went to pick up the body. I think the police are the ones who would have full information.
CHAIRPERSON: Was it before the April 1994 elections?
MR DLAMINI: Yes.
CHAIRPERSON: Do you think it might have been in 1994?
MR DLAMINI: No, I don't think so.
CHAIRPERSON: But it was after the other two incidents that you have described?
MR DLAMINI: Yes.
CHAIRPERSON: I think Mr Lax wants to ask a further question.
MR LAX: Thank you Chairperson, just one aspect I forgot. According to our Investigation Department report, they found a docket which they have referred to, which has a January 1994 reference and the person that was killed in that incident, and who is listed in the report as the victim, is one Peter Gugu Mbele.
MR DLAMINI: Are you referring to the Ixopo incident?
MR LAX: Correct.
MR DLAMINI: I do not know that person. I just got information this year when we were just discussing about the past, I am not sure whether that is indeed true or not. That is what I heard, that he was from the Sithole family and he had played for Bongeni Mzizi's team. He was actually a soccer player.
MR LAX: Presumably a number of people were killed at that rank in the vicinity of that rank, it would be a place where people could easily be attacked by either side?
CHAIRPERSON: Not on that particular day, but during the course of the conflict?
MR DLAMINI: I would not be too sure, because people would be attacked and it is something that I would hear from other people. I cannot be too sure.
This incident was actually committed by me, but I am just not sure of his name. I have actually not been able to actually speak to anybody from that area, who could actually ascertain for me who he was. I cannot do this because I do not want to open the old wounds of the past.
MR LAX: You see, unfortunately it is very important that we identify the right person because if for example we were to grant you amnesty and even if we weren't to grant you amnesty, the family of that person might be entitled to reparation and we would hate the wrong family to get reparation.
I just want to find out a bit further from you with regard to the information that you got when you were discussing at that rank, as Rank Manager, why you feel quite sure that is a Sithole person.
MR DLAMINI: I will then enquire from the IFP leader, from that area, because these people were actually his comrades, so I will check with him.
MR LAX: Thank you.
CHAIRPERSON: Mr Wills, do you have any questions arising out of questions that have been put by members of the Committee?
MR WILLS: No questions, Mr Chairperson.
NO FURTHER QUESTIONS BY MR WILLS
CHAIRPERSON: Ms Thabete, do you have any questions arising?
FURTHER CROSS-EXAMINATION BY MS THABETE: Maybe one Mr Chairman. Mr Dlamini, would you be able to identify the other people that were with the person that you killed at Ixopo at the taxi rank?
MR DLAMINI: Yes.
MS THABETE: Have you seen them?
MR DLAMINI: I know one of them.
MS THABETE: One person is enough, because maybe we can find out from him.
MR DLAMINI: Yes.
MS THABETE: What is the name of that person?
MR DLAMINI: Thulani Dlamini.
MS THABETE: Do you know where he stays?
MR DLAMINI: He is always at the rank.
MS THABETE: I would suggest then Mr Chairperson, that we find out from him.
CHAIRPERSON: Yes, perhaps Mr Thulani Dlamini might well be in a position to positively identify the deceased as either Mr Mbele, Mr Sithole or whoever it might have been. Thank you.
MR DLAMINI: Yes, I would also be pleased if it could be ascertained just who exactly he was, because I am not sure whether they are telling me the truth or not.
CHAIRPERSON: Yes, I mean it might not be the fact that they are lying to you, but it might just not be the same incident in which Mr Sithole got killed.
Mr Dlamini, that concludes your evidence. Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Wills?
MR WILLS: I see it is eleven o'clock now Mr Chairman, I wonder if we could take the tea break at this stage.
CHAIRPERSON: Will you be calling any further evidence in this matter?
MR WILLS: I won't be Mr Chairperson.
CHAIRPERSON: Will you be calling any evidence Ms Thabete?
MS THABETE: No Mr Chairperson.
CHAIRPERSON: Will you be in a position to make submissions after the tea break Mr Wills?
MR WILLS: I think I will, yes, Mr Chairman.
CHAIRPERSON: Thank you. We will now take the tea adjournment, after which we will receive submissions and then after that, will we be in a position to proceed with Mr Zulu's application? Is Mr Zulu's legal representative here?
MS THABETE: Yes, Mr Chairman, he is.
CHAIRPERSON: Thank you, then after that, we will proceed with the application of Mr Zulu, thank you.
COMMITTEE ADJOURNS
CHAIRPERSON: Mr Wills, are you in a position to make submissions now?
MR WILLS IN ARGUMENT: Yes, indeed I am Mr Chairperson, thank you.
CHAIRPERSON: Is the Evidence Leader not, oh, she's coming now. Yes Mr Wills?
MR WILLS: Thank you Mr Chairperson. Mr Chairperson, I think there is a third element to this application, which is an unusual one, apart from the normal two as to whether the applicant has fully disclosed and whether his acts were associated with a political motive, and that is whether or not he actually committed any crimes.
Obviously a person cannot get amnesty for crimes not committed.
CHAIRPERSON: That is just in respect of the first two incidents. The third one, the shooting is quite clear.
MR WILLS: Well, I am pleased about that, I thought that possibly the self defence motive might have ...
CHAIRPERSON: No, on that one, we have had occasion in the past to think very closely on this point, and although self defence might be a successful defence in a trial court, one can really only make a proper determination once you have received full evidence, from both sides, tested evidence, etc, but even if a person was shot in self defence in the context of obviously a political situation, I don't know if it is fatal to an amnesty application.
I am personally of the view that it is not. If you had for instance a political riot and somebody was being attacked and he shot in self defence, it is clearly done in a political context, arising out of the course of the conflicts, political conflict of the past.
MR LAX: Just to add this Mr Wills, the fact that you may be acquitted of a criminal charge, doesn't mean that you would not necessarily get judgement against you in a delictual matter, so because the tests are different and the (indistinct) burden is different and so on. Bear that in mind in relation to the first two as well.
CHAIRPERSON: I think you needn't concentrate so much on the self defence aspect, we don't have too much of a problem there.
But with regard to the other incidents, whether the actions of the applicant justify the granting of amnesty.
MR WILLS: Yes, thank you Mr Chairperson. The first question that I think I need to answer, or in regard to the first two incidents is whether the applicant's participation in those incidents, both of those instances amounted to any criminal conduct.
My submission is that it does. At the very least, he would be seen as a socius criminis or an accomplice, possibly even depending on an investigation of common purpose, he might even constitute being a murderer.
What is clear from the applicant's evidence, is that in both instances, he pointed out the deceased persons and he had full knowledge beforehand, as to what the intentions of the, of Pat, the person who delivered the blow, was going to do.
CHAIRPERSON: If we could just take the two incidents separately. The second one, the first one that he testified to, that is namely the one where he met Pat in the Golf and he told him about the two people and Pat then went off.
Okay, we know that he put Pat on the tail of those two people, but do we know whether Pat killed anyone, that is the first point? If he did, whether it was those two people that he told Pat about?
MR DLAMINI: We don't with certainty, I must concede, know exactly what happened, what Pat did, because there was no direct evidence in that regard. I submit that the fact that the, that the evidence was to the effect that Pat chased after them quickly, within a relatively short period of time, gunfire was heard, and thereafter Pat spoke to the applicant, and indicated that he caught up with the persons and did so in such a manner, that the applicant realised that the persons had been killed by Pat.
I would submit that is enough to indicate that the probabilities at least are that the persons were killed in association with that act, ie the pointing out and setting Pat and his comrades off in that direction.
CHAIRPERSON: If he were to be granted amnesty in respect of that incident, what would it be fore? It wouldn't be for murder, would it because all he did was to say, look there are a couple of chaps who were shooting, they have gone that way.
He didn't say catch them and kill them, although he might have appreciated that if they were caught, Pat would kill them.
If he were charged in a criminal trial court, and convicted, what would he be convicted of? I am sure if you were defending him, you would argue against him being convicted of murder?
MR WILLS: Yes clearly, if I was in another forum, I would take a different approach, this is quite an unusual position to be in for me to try and convince a panel that my client could be guilty of a murder.
CHAIRPERSON: Is he an accessory before the fact?
MR WILLS: My view would be that it could be an accessory before the fact, socius criminis or even a murderer, if the doctrine of common purpose was stretched.
It would take a full investigation on the evidence, to establish the extent of his participative acts in so far as he pointed those persons out, and obviously in a criminal trail, there would be other persons who would testify against him, and we might have further details.
My submission is had he pointed out those individuals to a person whom he knew was an SDU member, whom he knew had the intent of taking out the enemy, and he set those persons off, he set that person off on the fast track of persons, whom he knew to be part of the enemy, it would seem to me that at the very least, he would be guilty of dolus eventualis in respect to murder because he should have foreseen the possibility that those persons would be killed, and he was reckless as to whether or not that possibility ensued.
MR LAX: Well not that he should have, he did foresee it. That is what you have to argue. Should have would be you know, culpable homicide or whatever.
MR WILLS: Yes, clearly that he did foresee. So that would be my submission, but to my mind, with respect, whether or not he is granted amnesty for being an accessory before the fact, or just been an accomplice or a murderer, really doesn't with respect, make a difference in so far as the decision of the Committee is concerned.
What the purpose of the Act is, is to grant amnesty to persons who come before the Committee and make a full disclosure of events that were linked with a political motive.
My submission is it would be with respect proper for the Amnesty Committee to give him amnesty, had he satisfied the criteria in the Act, ie the political motive and the full disclosure in respect of the worst case scenario.
CHAIRPERSON: So are you saying that maybe a solution would be if he is granted amnesty in respect of that, would be that he is granted amnesty for the role that he played in the killing of three unknown persons at or near such and such an area during or about approximately, in the early part of 1993?
MR WILLS: Unfortunately that is probably the most precise way one could define the applicant's role. I would agree entirely with that, yes.
MR LAX: How do we get around the question that the Act talks about you get amnesty for an offence, for a delict and you are required in essence, to specify what that is? Are you saying that is covered by the wording that we have just used, which is his role in the killing of those people?
MR WILLS: Yes, indeed, I am. Unfortunately because of the lack of details in this matter, and I am sure, I know that the Chairperson and I are involved in another matter where there are very few details about the victim, unfortunately we are not in a position to provide such details. Unfortunately that is the only way out in this instance.
CHAIRPERSON: The second incident, the Batong incident, in that one, it came out particularly when the applicant was being questioned by Mr Lax, he said Pat came and asked them from whence these attacks were being launched by the Inkatha people, where did they come from, where did they stay, point out the place, and he pointed out the place across the river, over there, they come across the river.
That is their houses up on the hill there. Pat then says okay, I want you to get people to assist us, we are going to go and attack them. He then attempts to get people, they say no, our policy is we fight on our own ground, we fight in self defence, we are not pro-active.
Then when being questioned by Mr Lax, he said look, why did you not say to Pat it is not our policy, we fight on our own ground. He said no, he couldn't tell Pat that, because Pat came from another SDU, from another area and they've got their own policies. He didn't know that they were going there and indiscriminately kill people. He didn't know what they would do. All I did was to respond to his question, and I pointed it out.
Now, taking that into account, is he guilty of any offence at all other than not going to the police to say, look one of his comrades is going to launch an attack, which is taking it a bit over the top?
MR WILLS: No, again Mr Chairperson, initially when I was preparing for the matter, I thought there was a distinction between the two in that the first and the second incidents, in a similar way, but it is my submission that the two incidents can be viewed in a very similar light.
If one looks at the context within which that information was given, Pat comes to the applicant, he says, he comes in the context of wanting to neutralise a struggle or an attack coming from across the river. Pat doesn't ask the question innocently and the accused, the applicant doesn't interpret the question neutrally.
He knows exactly what Pat is going to do, so he points those persons out in the full knowledge, or he points that area out in the full knowledge that he knows Pat is going to be involved in the attack. He then goes further and tries to enlist the support of the other SDU Commander, this Mnini individual, and then Mnini does give him that information.
Clearly he knew exactly what was going to happen and then later on, within a relatively short period of time, that exact area is attacked. He sees Pat's car going in that direction, and he knows that that is the direction which he pointed to Pat and he knew before there was any shooting, that Pat was in fact going to attack, and it transpired that Pat did in fact attack.
I would submit that exactly the same argument ensues. The one thing which concerned me initially about the question of Mr Lax to the applicant was the issue of whether or not he didn't obeyed an order, but I don't know if you want me to address you, or he went outside the bounds of what was SDU policy. My view is, which I would be prepared to argue on, is that that isn't a necessary exclusion in regard to him being granted amnesty.
CHAIRPERSON: Because he ultimately answered Mr Lax by saying that look, I couldn't stop this guy, Pat, because he is from another SDU and they've got their own policy, he is not going to interfere with that, and in any event, if he told him not to do it, he would be viewed by his own local people, as siding with the enemy in trying to prevent them from being attacked.
MR LAX: Except to say this, that Mnini Dlamini wasn't viewed in that light, he was a fellow SDU Commander from a different area, he made it clear, and there were no consequences in that, although he didn't address us on that issue.
Simply put, if he knew that there was nothing that he could do to stop Pat from going on this attack, then his pointing out doesn't amount to anything. Pat was determined to go on it, that was his evidence. He said there was nothing I could have done to stop him, plus I was afraid of being pointed out and to use the colloquial term, in essence he would have been regarded as a traitor if he hadn't supplied the information, to put it as bluntly as that.
The second aspect is the question of the policy. He is seeking amnesty for his role in an attack which was against policy. We heard that yesterday.
Attacks were only permissible where you could pinpoint the precise individuals, but random hitting of areas, and it is patently clear that it was a random hit, it wasn't a hit on specific individuals, that much is clear from his evidence, that is not within the bounds of the ANC's broad policy.
It is not even in the bounds of a preemptive hit, because you don't know who you are going to hit. How do we then get around what political object is there, and is it proportional and proximate, and all that sort of thing? If we get into that debate?
MR WILLS: If I could go to the first question, if I was a Prosecutor in a criminal trial, and I was, the accused said that there was nothing he could do to stop the attack, my question would be well, why did you point the attack out? Why did you point the place out? That is the first instance.
Now, I know he says that he didn't want to be pointed out as a sell-out, or he didn't want to lose the credibility within his community basically, but I submit that in the light of the whole of his evidence, it must be seen that he also indicated quite clearly that he wanted those people to be taken out.
Those were the attackers that attacked him on a regular basis. He certainly was quite happy for Pat, at no stage did he say in his application, in his papers, or in his papers, if my memory serves me correctly, that he didn't want Pat to go ahead.
CHAIRPERSON: He said he actually supported it, but you see, I think it is quite clear, the applicant himself subjectively feels guilty about it, because this is the first time it has ever come to light. He hasn't been charged, or he hasn't even been suspected, etc, and it seems that raising these two incidents, where he played a very small sort of almost distinct role, distant role in the whole thing.
MR WILLS: That is my submission exactly, he had no reason to come to the Committee unless he felt that he had been involved in a crime. The difficulty with these things is that if he were charged, there may well be more substantial evidence, where certain people would give evidence, and we might find that there was more to it.
My submission is that his role does amount to a crime, and it might with the law in relation to common purpose, might in fact even although it will be unlikely, it may well be regarded, he may be regarded as having murdered those people, or charged with murdering those people at the least.
As regard to the second point that Committee member, Mr Lax, raised about the political motivation, I submit that it is clear from the evidence of the higher profile applicants yesterday, that there was (indistinct) of proper political training, and political education and instruction.
Clearly it appeared from what the applicants said yesterday, that one of their purposes was to use an MK person, who was trained properly and correctly, to go into the areas and to perform that role of discipline and political education and political education is obviously up to policy.
To that extent, that didn't happen here, there was no mention of MK. He even indicated that MK persons only came into the area after he had left, so there wasn't that direct education which would have enabled him to fully appreciate the policies in the first instance.
He did however, he was however told by his, the Commander of the other Unit, Mnini that Mnini thought that he didn't want to participate in that attack, but that was clearly Mnini's own position.
Be that as it may, it is not only whether an act is committed in accordance with policy of a particular organisation, that pulls it within the context of a politically motivated act. There is a whole umbrella of other circumstances, and I submit that in this instance, it falls within the ambit of Section 20(a) and in fact 20(b), and it was, the attacks were directed against political opponents.
One can go into more detail in that regard, but clearly the pro-active report, and I think with respect, the Committee could possibly take judicial notice of the fact that there was serious violence in these rural areas, particularly in the townships.
CHAIRPERSON: We know that, and in fact the applicant himself has told us that it was, the situation had reached an intolerable point. They were just being attacked, in broad daylight they were having their stock taken, they had no guns, they were sitting ducks.
MR WILLS: Yes, indeed. To that extent, the attack was directed against members of an opposing political party. I have looked at a couple of judgements.
Mr Lax raised the point of innocence. The PAC matter, the amnesty decision AM5939/97, and 5784/97 and 0293/96, those were PAC people who granted, had more of a cover by policy, but essentially they were just told to go and attack whites.
They went into a night club and just shot randomly into a nightclub and injured and killed certain persons, and they were granted amnesty because it was in a political context. I submit that there is a difference in this instance, in the sense that their authority was more direct, however, the indiscriminate nature and the proportionality of the attacks, is far - sorry the proportionality in this instance, isn't as extreme as it is in the attacks, those attacks on clearly persons who they don't even know in Newcastle.
At least in this instance the attack was directed at a known area where political opponents came from. It also, I think the other point to bear in mind is, whilst we don't know what happened, we clearly know that the attack didn't go discriminately against houses. There is no report of that.
CHAIRPERSON: We know that, yes. All we know is that three bodies were found near the river, which was the border line between the two areas.
MR WILLS: Yes, indeed. My submission is that in that regard, the proportionality isn't adverse against the applicant in this instance.
MR LAX: Do we even know whether those three bodies were the result of Pat's work or his comrades' work, other than that they were more or less contemporaneous? We don't know who those people are?
MR WILLS: No clearly, we don't know who those people are, and neither do we know who the persons are in the first instance, so in that sense, there is no reason to discriminate between the first and the second instance.
But again, the contemporaneity of the events, leads me to submit that there is a probability that those bodies were related to Pat's attack. In his application for example, he talks and he also mentioned it in his evidence, the applicant mentions this person coming up from the direction of the river, with his arm bleeding, and hearing gunfire. It is clear, and then he goes down to the river and he sees those bodies.
One must assume and they reported that they had a battle on the river, so one must assume that clearly those - and then he goes and he sees, obviously he was told where the battle was. He goes down and he sees where those bodies are, so I submit that those bodies were bodies that were, persons who died in that battle.
I would submit in brief that the same type of decision worded as the Chairperson did, in respect of the first incident, would be appropriate in the second incident.
Unless there is anything else to address on the issue of full disclosure, I submit he has satisfied that fully.
CHAIRPERSON: Yes, I don't think we've got any reason to believe that he has purposefully held back any relevant information. I think if he was telling an untruth, he would have not even bothered to have applied, especially in respect of the first two incidents.
MR WILLS: Yes, indeed thank you. Unless there is anything further, that is my address.
CHAIRPERSON: Thank you Mr Wills. Ms Thabete, do you have any submissions?
MS THABETE: No submissions, I will abide by the decision of the Committee.
CHAIRPERSON: Thank you. We will reserve our decision in this matter. We will hand down a written decision. Thank you very much. That then brings these proceedings, this application to an end. Thank you Ms Thabete for your assistance in the matter, thank you Mr Wills, for your assistance, not only today, but also yesterday.
We've got one more matter left, the Zulu matter?
MS THABETE: Yes, Mr Chairman.
CHAIRPERSON: You have indicated that you would like us just to adjourn and then reconvene, you will tell us when you are ready to start?
MS THABETE: I will do so Mr Chairman.
CHAIRPERSON: Thank you. We will now just take a short adjournment, between this and the next application. If you can just let us know when you are ready to start, thank you.
MS THABETE: Thank you Mr Chairman.
COMMITTEE ADJOURNS
