CHAIRPERSON: For the sake of the record, the Committee Members are myself, Andrew Wilson, Mr J B Sibanyoni and Mr I Lax.
MR DE KLERK: Thank you, Mr Chairman. My name is Lourens de Klerk, I appear on behalf of the applicant.
MS MTANGA: My name is Lula Mtanga, Evidence Leader for the Truth Commission, and I ...
MR DE KLERK: Thank you, Mr Chairman, he must just be sworn in.
CHAIRPERSON: Is he going to give evidence now?
MR DE KLERK: Yes.
MR SIBANYONI: ...(no English interpretation). Give us your full names please.
THULEGANI AGRIPPA MZOBE: (sworn states)
MR DE KLERK: Thank you, Mr Chairman. Mr Chairman, which channel is the Zulu interpretation?
CHAIRPERSON: 3.
EXAMINATION BY MR DE KLERK: Thank you, Mr Chairman.
Mr Mzobe, is it correct that you were born on the 3rd of September 1972, in the Baboi Reserve, near Port Shepstone?
MR MZOBE: That's correct.
MR DE KLERK: Is it true that you stayed there your whole life until you were sent to prison?
MR MZOBE: That's correct.
MR DE KLERK: Is it also true that you want to apply for amnesty?
MR MZOBE: That's correct.
MR DE KLERK: Can you please explain in your own words what happened in this matter.
MR MZOBE: Yes, I can.
MR DE KLERK: Proceed.
MR MZOBE: It was on a Saturday, on the 24th of April 1993. My aim was to go to Durban. I took a taxi at Kwakanjaza to Port Shepstone taxi rank. My aim was to go to Durban, but I couldn't take that taxi because I met a certain group who came and swore at me and some of them were calling me "klova", and this group of people denied me to proceed with my journey. I ended up going back to Baboi at home. They followed me.
When I was in the taxi, one of them who was one of the group, grabbed me through the window, taxi window and grabbed me with my T-shirt and I lost my button there. His name was Sandile. The taxi left before the whole incident went bad. They tried to follow the taxi but the taxi left. When we arrived at Baboi, I went home. When I was near the school I heard people swearing at me.
When I turned back I realised that they were the same group who promised that they were going to follow me and they continued swearing at me. That is when I lost it and I realised they were telling the truth when they said they wanted me. I decided to go and face them. I had a plan. I didn't want them to realise that I was attacking them as well and they only realised when I was closer to them. It was near a certain school called Sister Jones. I crossed the road because I wanted to attack them from the back. ...(intervention)
MR LAX: Can you just slow down a little bit. I'm worried that if you're going quickly, the interpreter won't catch everything and we will also be struggling to make notes of what you're saying. So if you could just slow down a little bit please.
MR DE KLERK: In your application you say that your motivation for this crime was political of nature, can you explain that to the Committee.
MR MZOBE: Yes, I can.
MR DE KLERK: Proceed.
MR MZOBE: There was violence in the area. The violence was between IFP and ANC.
MR DE KLERK: Yes?
MR MZOBE: The people who were harassing knew that I was an IFP member and they were ANC members. I want to clarify this thing about the organisations. These are the people who knew me. We grew up together and we went to the same schools, even the playgrounds, we were using the same playgrounds. They knew me very well. I also knew them very well. There was no doubt of the political affiliation of each other, meaning myself and the group. There's nothing further, except to let you know that there was violence between these two organisations.
MR DE KLERK: Were many people killed during that time, or was that the peace period?
MR MZOBE: People were killed and there were conflicts.
MR DE KLERK: This happened quite a while ago. While you're sitting here thinking back at that time, what can you tell the Commission?
MR MZOBE: You mean things which were happening in the area?
MR DE KLERK: Yes, when I consulted with you, you told me if you think back maybe you would have done something else.
MR MZOBE: There were conflicts in the area which didn't actually involve me personally, but what I'm talking about today is what I actually took hand in.
MR DE KLERK: How do you feel about the victims in this matter and the people that you killed?
MR MZOBE: I feel very bad and very sad. It wasn't my aim, but it was the situation at the time and I believed that if I wasn't that young at that time I wouldn't have done the same. Now I'm a grown up and I think I would have done differently and I'm asking for forgiveness.
MR DE KLERK: What is the sentence you received in court?
MR MZOBE: 15 years.
MR DE KLERK: And what amount of time have you served up till now?
MR MZOBE: You mean in prison?
MR DE KLERK: Yes.
MR MZOBE: I was sentenced in 1995, July.
MR DE KLERK: Lastly, were you instructed by anybody to kill these people? Was this killing planned?
MR MZOBE: No-one sent me or instructed me, I didn't even plan this. I did this because of the situation. Even myself, I just did it there and then, it came there.
MR DE KLERK: Just one further aspect. When we consulted I pointed out that the statements pertaining to what happened at the scene and it seems that according to these witnesses, certain words were talked, certain sentences were said between yourself and these people. Do you remember anything about it? That means the people that you killed and the boy that you grabbed, did you speak to them, say anything to them?
MR MZOBE: I don't remember that. The only thing that I remember is that I only released the boy's hand when I arrived at this group and I only said: "Yes, men". Those were my only words. That is when I started shooting.
MR DE KLERK: Thank you, Mr Chairman, that's the evidence.
NO FURTHER QUESTIONS BY MR DE KLERK
CROSS-EXAMINATION BY MS MTANGA: Thank you, Chairperson. Mr Mzobe, help me understand here. In your evidence you say you took a taxi from Kwakanjaza to Port Shepstone.
MR MZOBE: That's correct.
MS MTANGA: The group that insulted you, did you find them at Port Shepstone?
MR MZOBE: That's correct, Port Shepstone taxi rank.
MS MTANGA: At the taxi rank?
MR MZOBE: Yes.
MS MTANGA: How far is the taxi rank from Shayamoya Store?
MR MZOBE: The taxi rank that I'm referring to is in town, in Port Shepstone town.
MS MTANGA: And you lived in Kwakanjaza?
MR MZOBE: Kwakanjaza, that's my stop or my taxi stop, or bus stop.
MS MTANGA: According to the statement of Patrick Sebenza, he states that you went to them at Baboi, at Shayamoya, how far is Baboi from your area, Kwakanjaza?
MR MZOBE: Kwakanjaza is a but stop or taxi stop, Baboi is an area. The area is named after a certain river which crosses the area, so it's Baboi. I don't understand your question.
MS MTANGA: So will I be right ...(intervention)
MR LAX: Let me assist you. Baboi is a big area outside of Port Shepstone town, it's in fact a semi-rural area that fell under KwaZulu. People moved from there into town. What he is in fact saying is that Kwakanjaza is in fact an area within Baboi, that is why he doesn't understand your question.
MS MTANGA: Thank you, Mr Lax.
The group of people who swore at you, did you know any of those people?
MR MZOBE: Yes, I noticed someone and I knew that person and the reason I noticed him is because he came closer while I was inside the taxi and he grabbed my T-shirt. His name is Masaka Khambule.
MS MTANGA: Was Mr Bazely(?) and Mr Ndovela that you shot at amongst the group of 15 people?
MR MZOBE: At the taxi rank I didn't notice any other person except for the one who grabbed me, Masaka Sandile Khambule. These others were there, but it wasn't easy for me to actually notice that they were among the people who were swearing at me, but when we were at Kwakanjaza, that's when I noticed that they were among the group.
MS MTANGA: Mr Mzobe, when you approached this group and had a look at Mr Ndovela and Mr Bazely, did you recognise them as one of the people who had swore at you earlier?
MR MZOBE: I shot these two individuals because I knew that they were one group. Whether they were in town or they were there, but I knew that they were among the group who swore at me in town.
MS MTANGA: So Mr Mzobe, ...(intervention)
CHAIRPERSON: But you didn't recognise them as being part of that group?
MR MZOBE: Yes, I can say that. Even though I thought that they were among the group and, the group who was swearing at me in town.
MR LAX: Isn't the real issue here that they were members of the opposition group from yourself? You were IFP, they were ANC, isn't that really the issue?
MR MZOBE: Yes, I did so because I also knew that they were ANC and I was IFP, but the main reason is that they started this whole thing.
MR LAX: But the fact of the matter is that you didn't recognise them in town as part of the group of people that swore at you in town, you only recognised one person in town.
MR MZOBE: That's correct. ...(intervention)
MR LAX: So - carry on, sorry.
MR MZOBE: The reason I noticed this other guy is because he grabbed me whilst I was inside the taxi.
MR LAX: Yes, you've told us that, but the fact of the matter is that the two deceased, you didn't see them in town.
MR MZOBE: I can't say that I've noticed them and I cannot say that I've noticed ...(indistinct) because they were among the group or it was a group. And the same group followed me even after I've decided to go back home.
MR LAX: You see the fact of the matter is you don't know whether they followed you or not. You saw one group of ANC people in town, later you saw another group of ANC people where you stopped off your ...(indistinct). That's the truth, isn't it?
MR MZOBE: No, that's not the truth. These people promised me from town that they were following me because they wanted to kill me and when I decided to go back home, the same group was there. It wasn't another group, it was going to be impossible to have two groups.
MR LAX: Carry on, Ms Mtanga.
MS MTANGA: Mr Mzobe, was Sandile Khambule - excuse me, did you find Sandile Khambule amongst the group that you approached, when you went back to shoot at them?
MR MZOBE: I didn't notice whether he was still among them or not. My aim was now to attack them. I didn't want to see if he was there or not, or who was there, my aim was just to attack.
MR SIBANYONI: But Mr Mzobe, what made you to recognise this group as the same group you saw in town?
MR MZOBE: The reason I noticed was, the second group now was still staring at me and the first group in town told me that they were going to follow me and they are following me because they want to kill me, and they were still swearing at me, the same words were still uttered.
MR SIBANYONI: Excuse me, Ms Mtanga. What means of transport did they use in following you from town?
MR MZOBE: I didn't notice whether they took a taxi or something else, but I just thought they took a taxi.
MR SIBANYONI: All what makes you to say it's the same group is because this group was also swearing at you?
MR MZOBE: That's correct.
MR SIBANYONI: Thank you, Ms Mtanga.
MS MTANGA: Thank you, Mr Sibanyoni.
Mr Mzobe, you say amongst the swear words used at you they called you "klova", what is "klova"?
MR MZOBE: ANC supporters used to use these words to swear at us. These are insulting words, and I cannot tell anyone what it means, but these are the words they were using to insult us. No-one would like to be called those words.
MS MTANGA: Will I be correct to say that the word "klova", in Zulu it's insulting to everyone, whether you're IFP or whether you're ANC? It can be used against any of you and you'd still find it insulting?
MR MZOBE: This word is only used by ANC to insult IFP, not IFP insulting ANC.
MR LAX: I can confirm that. It's common knowledge in this part of the world that that word had a specific meaning and which was derogatory to IFP people. It was used by non-IFP people to refer to IFP people. So you needn't follow that up, it's common knowledge that that is in fact so.
MS MTANGA: Mr Patrick Sebenza will testifying to the effect that before you shot Mr Ndovela, you asked him why was he looking at you. Did you shoot Mr Ndovela because you thought he was a ...(indistinct) he could not swear at you, or you shot at him because you felt he was challenging you? What was the reason for shooting at him?
MR MZOBE: When I arrived to the group, I didn't check to see if these people were the same people who were in town. When I arrived by them I already knew that this group was the group which insulted me in town.
MS MTANGA: Sorry, Mr Mzobe, you carried on to shoot at these people without having recognised any of them as the people who had sworn at you earlier on in town?
MR MZOBE: Yes, I shot at them because I believed at that time that this was the group.
MS MTANGA: What made you believe that they were the group, when you couldn't recognise any of them as having been in the group that swore at you?
MR MZOBE: When the taxi left the taxi rank, they promised me that they were following me because they wanted to kill me.
CHAIRPERSON: You knew they wanted to kill you?
MR MZOBE: They knew that I was an IFP member and their enemy, this was the reason why they wanted to kill me. I was an enemy.
CHAIRPERSON: Did they say they wanted to kill you?
MR MZOBE: Yes, they did.
CHAIRPERSON: How many of them were there in the group?
MR MZOBE: I can't tell the number, but it was a group.
CHAIRPERSON: And yet you were brave enough to approach them, knowing they intended to kill you?
MR MZOBE: I decided to go to them because I didn't want them to go and attack me in an IFP area because where I was staying was an IFP area, so I knew that if they would come and attack me there they will kill other people as well, other IFP members. That is why I decided to go, so that if I die it will be just me, not other IFP members.
MR LAX: If I could just interpose, Mr Mtanga.
Where were these people when you approached them?
MR MZOBE: At Kwakanjaza.
MR LAX: Yes, I know it was Kwakanjaza, but where at Kwakanjaza, were they sitting under a tree, were they standing next to the shop, were they at a taxi rank, what were they doing?
MR MZOBE: When I decided to go to them they were at Kwakanjaza bus stop or taxi rank, but when I arrived there they were standing under a tree not far from the main street.
MR LAX: Some of them were sitting down, some were standing?
MR MZOBE: They were standing.
MR LAX: All of them?
MR MZOBE: I can't remember very well whether there were other people who were sitting down, but I only saw them standing and the two whom I shot were standing.
CHAIRPERSON: Are you sure of that?
MR MZOBE: Yes, I am sure.
MR LAX: You just shot them there and then, you didn't chase after them?
MR MZOBE: No, I didn't, I just shot at them and I also watched the others running away, I didn't chase after them.
CHAIRPERSON: Did you struggle with any of them?
MR MZOBE: I didn't get that question.
CHAIRPERSON: Did you struggle, grapple with any of
them?
MR MZOBE: One of them tried to struggle with me. He is the one who grabbed me. His name is Brian. He is one of the two whom I shot.
CHAIRPERSON: Is he the - medical evidence was led at your trial, do you remember that?
MR MZOBE: Yes, I do.
CHAIRPERSON: And the judge in his judgment referred to the medical evidence about Ndovela's injury and that it was consistent with him having been shot while he was in a seated position, it went down his body, but you say he was standing up when you shot him.
MR MZOBE: I cannot disagree with this evidence, but I was just referring to what I personally did.
MS MTANGA: According to the judgment, Mr Mzobe, initially you shot Mr Bazely on his hand and then he fell. This was when he was trying to stop you from shooting Mr Ndovela, do you agree with this?
MR MZOBE: What I can say is that I don't remember who I shot first, but Brian did try to stop me or to grab me.
MS MTANGA: At the time Brian - this is also in the judgment, at the time Brian tried to stop you, the rest of the group ran away except for Ndovela, who had fallen on the ground at that time, and you proceeded to shoot Bazely when he had fallen on the floor and you were still in possession of your gun, why did you shoot at Bazely, at ...(indistinct).
MR MZOBE: After he grabbed me we struggled and he fell down, that's when I shot at him, when he was lying down and he was trying to stand up again.
CHAIRPERSON: How many times did you shoot the man who was lying down?
MR MZOBE: I don't remember how many times.
MS MTANGA: Do you know Patrick Mbulelo Sebenza?
MR MZOBE: I know Patrick Sebenza very well, we went to the same school and we used to play soccer together.
MS MTANGA: Was he amongst the people you went there to shoot at?
MR MZOBE: I only found out in court that he was a witness, but I didn't see him at the time of this scene. I didn't notice and recognise everyone in the group. I don't know if Sebenza was there, but when we were in court I came to find out about this.
MS MTANGA: Can I just emphasise this again, Mr Mzobe. You've just said again that you didn't know or recognise anyone in the group, is that your evidence?
MR MZOBE: Which group? Are you talking about the group in the taxi rank in town or the one in Kwakanjaza?
MS MTANGA: I said the group in which Sandile was amongst and the one you went there to shoot at.
MR MZOBE: I noticed Sandile Khambule. I didn't recognise the others, but I believed with all my heart that this group in Kwakanjaza was the same group in town, the one that I saw in town.
MS MTANGA: At the time you saw them you just assumed they must all be ANC members who had sworn at you?
MR MZOBE: With no doubt I believed so.
MS MTANGA: Mr Chairperson, at this point I would like to have a short conversation with Mr Bazely, because he said he would like to speak to me after he has heard the evidence of the applicant.
CHAIRPERSON: ...(indistinct)
MS MTANGA: The victim.
CHAIRPERSON: You have mentioned the name of one witness, was that Patrick Sebenza? And the other witness, his statements have been supplied to us, are they available?
MS MTANGA: No, it's only Mr Sebenza who is available.
CHAIRPERSON: Shouldn't they have been made available?
MS MTANGA: They were notified, but they have not, only one person has arrived and his evidence will be the same as Mr Sebenza.
CHAIRPERSON: Very well, you can take a short adjournment now.
COMMITTEE ADJOURNS
ON RESUMPTION
THULEGANI AGRIPPA MZOBE: (s.u.o.)
CHAIRPERSON: The crux of what he says, which is, as I understand his statement, that the group he was with had been in somebody's girlfriend's room and they found it too hot there and they moved out to sit under the tree near Happiness Mtolo's room and they were sitting there drinking beer. Is that his version still?
MS MTANGA: Yes, that's his version.
CHAIRPERSON: Mr Mzobe, did you hear what I said then? That the witness who is going to be called will apparently say that he was a member of a group who had been together that morning, or that afternoon, sorry, and they were sitting under a tree drinking when you approached them. Similar evidence was I understand, led at your trial. Do you remember that?
MR LAX: Just press your button please before you talk.
MR MZOBE: I don't remember them drinking because I didn't see anything, or alcohol there, but I did find them under a tree like I said.
CHAIRPERSON: They were sitting under the three they said.
MR MZOBE: Yes, that's where I found them.
CHAIRPERSON: But you, in your evidence a few minutes ago said they were all standing.
MR MZOBE: I found them under the tree like I said. The two whom I shot at were standing. I don't remember whether there were others sitting down, but they were standing.
CHAIRPERSON: Well the evidence at your trial was that they were sitting, wasn't it?
MR MZOBE: I didn't say so in court, they said so.
CHAIRPERSON: Yes.
MR LAX: And the medical evidence says that the one deceased was sitting when you shot him.
MR MZOBE: I do understand that, I cannot disagree with that doctor, but what I'm saying here is what I remember.
MR LAX: Have you finished your cross-examination?
CHAIRPERSON: And there was also - sorry, before you go on. There was also evidence of you asking them if they knew who the young boy was that you had dragged along.
MR MZOBE: I don't remember saying these words, the only thing that I remember is that when I arrived there I said to them "Yes, men". I don't remember anything else.
CHAIRPERSON: Do you wish to re-examine?
MR DE KLERK: No thank you, Mr Chairman.
NO RE-EXAMINATION BY MR DE KLERK
MR LAX: Thank you, Chairperson. Just for the record, Lax speaking. Mr Mzobe, you made an affidavit in this matter, is that correct?
MR MZOBE: That's correct.
MR LAX: And that affidavit appears, there's a translation at page 20 to page 22 of the papers, 23 of the papers and in hand-written script, from page 24 to page 30.
MR MZOBE: Yes, I can see that.
MR LAX: And you made a X at page 29 and again at the bottom of page 29, is that right? Is that your signature n fact?
MR MZOBE: That's correct.
MR LAX: Did you read this statement before testifying today?
MR MZOBE: No, I didn't.
MR LAX: At the time you signed this affidavit it was read back to you?
MR MZOBE: It's just that I don't remember who exactly helped me doing this affidavit, but the person who came to see me told me that he was sent by the TRC to come and take a statement from me. He told me that he's written down everything I told him, but he didn't read it back to me. He wrote down what I've told him.
MR LAX: Yes, that was Mr Pelatu Mtetwa.
MR MZOBE: Yes.
MR LAX: Now is it not correct that you got off the taxi and you were very angry at being sworn at and being prevented from going to Durban. That is what you said.
MR MZOBE: You mean after the taxi rank in Port Shepstone, when I was going back home, or when?
MR LAX: When you got back.
MR MZOBE: Yes, I was angry because I didn't continue with my trip.
MR LAX: You say here in this affidavit
"As they were ahead of me they did not see me."
MR MZOBE: When I was approaching them I decided that I didn't want them to recognise me or to see me whilst I was far from them. I decided to shield, using another route, hiding from a school so that they don't see me while I'm far away from them. I wanted to appear right in front of them. That is why they didn't seem until I was right in front of them.
MR LAX: ...(indistinct) at that stage, they hadn't seen you until you were right in front of them.
MR MZOBE: They couldn't see me, they were following me. I arrived at the taxi rank first, before them.
MR LAX: Well you see your evidence was in your evidence-in-chief, that when you arrived at the taxi rank they started swearing you, they had followed you and they found you and they started swearing at you.
MR MZOBE: Yes, that's correct.
MR LAX: Well how could they have started swearing at you if the first time they saw you was when you suddenly appeared in front of them?
MR MZOBE: I think we are missing a point here. Where they first swore at me, it was in Port Shepstone taxi rank and then that's where I decided to go back. When they were following me they were swearing at me, at the taxi rank. At the taxi rank I was close by. That's when I decided to go back and I realised that they meant what they said. They said they wanted to kill me.
MR LAX: You see, Mr Mzobe, that's not what your evidence-in-chief was, your evidence-in-chief was yes, they did swear at you at the rank, you got into the taxi, when you got to Baboi and you got off the taxi there, your evidence was that the same group was there already and they swore at you again. Now, it simply impossible for them to have sworn at you again at that stage, if the first time they saw you was just before you appeared in front of them and shot them. Do you understand my problem?
MR MZOBE: I would like to clarify something here. This one group which was in the taxi rank, I actually believed, on my own I believed that they were the same group at Kwakanjaza, because the second group continued swearing at me. That is why I said they were the same group of people.
CHAIRPERSON: But don't you see the problem? You say they continued swearing at you, but a moment ago you said
"I did not want them to see me when I was far away, I wanted to appear right in front of them."
How does that accord with them continually swearing at you?
MR MZOBE: I'm saying they continued swearing at me because they started swearing at me in Port Shepstone taxi rank and then again at Kwakanjaza they continued swearing at me.
MR LAX: Now you see - I'm going to move on because clearly you can't answer this issue and we'll just leave it. You've told us that you decided to attack them because you didn't want them to come to the IFP area to attack you there.
MR MZOBE: That's correct.
MR LAX: However, earlier in your evidence you said that you just lost it, that's when you decided you were going to do something.
MR MZOBE: Yes, I don't how I can explain this but I meant that I decided to do something about it there and then.
MR LAX: The point is that you were so angry you just ...(tape blank) ... when he asked you to explain about those words.
MR MZOBE: Even though I was angry the whole time, from town to home, but then I decided there that I should attack them because they were serious, they kept on following me and I knew that whatever they wanted to do, like they did tell me they wanted to kill me, so I realised that they meant what they said.
MR LAX: Now if you were so worried about being shot, how do you explain the fact that you were able to evade the police for seven months after this event? You were only arrested seven months later, they knew exactly who you were.
MR MZOBE: I'm not sure whether the police knew where I was. The reason I ran away from the police was I was scared even though they arrested me eventually.
MR LAX: You told us that you went to the hill near your place so that you could observe your place and see whether the police were there. You said you didn't go directly home, you went to a place where there's a hill so you could observe your home from there because you expected that the police would be waiting for you at home, isn't that so?
MR MZOBE: Let me just repeat what I said before. After I shot at these people I left, I didn't go straight home, I went Mdengwane. When you're going to Mdengwane you approach a certain hill. Once you are up the hill it is so straight that you could see from a distance and you could see something standing at a distance. That's why when I arrived there, I saw soldiers standing there where I was going. It wasn't my aim to look at my house to see if police are coming, no. When I continued with my journey I dropped the gun and I met soldiers and they stopped me, they asked me questions, I answered them back and I left. They were not sure if I was the one they were looking for.
MR LAX: Well then explain to me why you said you didn't go home straight away, knowing that the police would come home
"I went to Mdengwane."
That was your evidence and I made a very careful note of it because it struck me as quite important. You knew the police would go to your house looking for you, correct?
MR MZOBE: Yes, I knew.
MR LAX: And so you were able to evade them for seven months before you were arrested, correct?
MR MZOBE: That's correct.
MR LAX: And you could just as easily, as you evaded the police, have evaded your so-called attackers, the people who wanted to kill you, isn't that correct?
MR MZOBE: I don't know whether it was going to be easy for me to run away from the people who were going to attack me or to kill me. It's difficult to avoid that.
MR LAX: Why didn't you just go to the Chief and say: "Please transfer me to another area, these people know me, it's dangerous for me here, rather send me to a different area where I'm not known"?
MR MZOBE: After this incident I went to the Chief and I told the Chief that I was running away. That's where I went, I told the chief.
MR LAX: Why didn't you do it before the incident? - there would have been no need for you to kill anybody.
MR MZOBE: I didn't think about that at the time because this happened so quick, it wasn't planned, therefore it just happened the way it happened.
MR LAX: You see the fact of the matter is that you didn't know any of the people under the tree as being the same people, they hadn't even seen you. You chose to attack them. They never saw you, you could easily have disappeared on your own way. There was absolutely no reason therefore to kill them or shoot at them.
MR MZOBE: As I've already mentioned before, I would just - after I left the taxi rank, after the group told me that they were following me and they want to kill me, I went back home. After I got off the taxi another group came and I believed that it was the same group which was harassing me at the taxi rank. Since the same group in town told me that they were following me and they wanted to kill me, I believed at that time that the people who were swearing at me, they were the same people who swore at me in town.
I also want to clarify one thing. Another thing which made me sure that it was the same group and that area it's an IFP and ANC area, the only division in the area is the main road. Therefore, I want this Committee to know that the division is just a road and therefore if the people who are swearing at you are on the other side of the road, they are ANC.
CHAIRPERSON: But what troubles me is, as I understand your evidence, you knew these people well, you had been to school with them, you played football with them.
MR MZOBE: That's correct.
CHAIRPERSON: A group of people swore at you at a taxi rank in Port Shepstone ...(intervention)
MR MZOBE: If you are in trouble, same situation which I was in, it's not easy to recognise people because you're scared.
CHAIRPERSON: They didn't have any weapons they were flourishing at the time, they were merely swearing at you when you were trying to get onto a taxi, and you couldn't recognise people you had grown up with, is that what you would have us believe?
MR MZOBE: Like I said before, I only recognised one, the one who grabbed my T-shirt. That is the only one I've noticed.
CHAIRPERSON: And then you arrive back and you see another group of people and you don't recognise any of them as being people you'd seen earlier that day.
MR MZOBE: I know them very well of course, but at the time I didn't take notice if it was the similar group, but I believed it was a similar group.
CHAIRPERSON: You didn't take notice, but you were prepared to kill. Is that what you say?
MR MZOBE: Yes, that's what I'm saying.
CHAIRPERSON: And in your affidavit that you've been referred to, you said you couldn't remember well because you were much too angry at them.
MR MZOBE: As I have explained the situation, it wasn't easy for me to recognise or to notice as to this is so and so and this is so and so, all I noticed is that it was a group.
CHAIRPERSON: And on that basis you killed.
MR MZOBE: Yes, what I've done was shooting at them, even though it wasn't my aim, but it happened.
CHAIRPERSON: How can you now say it wasn't your aim, you took this young man, dragged him along with you as a shield to get close to them, and then having just said: "Yes, men", you opened fire on them.
MR MZOBE: If I'm saying it wasn't my aim, I mean that on that day when I woke up I didn't plan to shoot anyone, but they swore at me, they insulted me. It wasn't my aim, but I was forced or the situation actually forced me to do so.
CHAIRPERSON: Yes, because they swore at you and insulted you and you lost your temper.
MR MZOBE: Yes, that's correct.
MR LAX: You see, even on your own version by the time you got back to your area and until the time you shot them, you had enough time to work out your plan, to grab somebody to use as a shield, to calmly walk over to them and to shoot them. Now that's not the actions of someone who's just lost his temper.
MR MZOBE: I don't know if that's a question.
MR LAX: I'm asking you to comment on what I've just said to you.
MR MZOBE: I'm saying it wasn't my aim, but the situation and what they've done to me on that day pushed me to do that. I decided there and there that if I grab this young boy and make him, or use him as my shield, I was going to attack them easily because I thought if they see me first they were not going to shoot at me since I had a young boy with me.
MR LAX: Thank you, Chairperson, I don't have any further questions.
MR SIBANYONI: Thank you, Mr Chairperson.
Mr Mzobe, I couldn't understand what happened from the time you alighted at Baboi when this group swore at you and the time when you got hold of the young boy and returned to the group without noticing you. Can you please fill us in there?
MR MZOBE: Yes, I can clarify this.
MR SIBANYONI: Please do.
MR MZOBE: After they followed me up to Baboi, I was nearby a certain school called Sister Jones. I turned there. I decided that I wanted to go to them, but I didn't want them to recognise or to notice me from far. I wanted them to see me when I was right in front of them.
I used another route which passed the church. There's a gravel road near the church. I met two women and I met a boy, who was very young, and I grabbed this boy and I told the boy to come with me. I went straight to them now. I only released the boy immediately after I was in front of these men and I said: "Yes, men". When they got scared, that's when I started shooting at them.
MR SIBANYONI: Are you saying that although this group was following you from town, after you have alighted at Baboi they swore at you and let you disappear from their sight and thereafter they went to the tree where you found them?
MR MZOBE: I don't know how I can clarify this. I wish you see the picture of the place. There are things and buildings or trees which can make it impossible for one to see. They only saw me from far and they didn't understand how come I appeared right in front of them. I don't know how I can give you the full picture of the area, because I can actually show you this is the route I used in order for them not to see me, or notice me.
CHAIRPERSON: But they saw you and noticed you. You've told us time and again, when you arrived they started swearing at you again.
MR MZOBE: Yes, they did see me.
CHAIRPERSON: And you didn't want to go home because they might follow you and kill people, you decided to face them there and then.
MR MZOBE: That's correct.
CHAIRPERSON: But somehow you then managed to disappear from their sight, go past the school, grab the young boy as a shield, return by the gravel road and suddenly appeared in front of them. And that is what my colleague is asking you about, how did this happen?
MR MZOBE: I was far from them when they were swearing at me, that's why they didn't know that I was going away or I was going to come back. I decided not to go away. I was using the school as my shield. I was coming back, using the other route, coming back to them.
MR SIBANYONI: In other words, they were no longer following you?
MR MZOBE: They were shouting, swearing at me. They were standing at the road.
MR SIBANYONI: Now to get the picture clear, when you arrived at this group under the tree, Khambule, whom you saw in town, was not amongst them, is that correct?
MR MZOBE: I didn't take notice whether he was still there or not.
MR SIBANYONI: But you didn't see him there?
MR MZOBE: No, I didn't see him there. It was difficult for me to look at faces, it was difficult.
MR SIBANYONI: And Brian Bazely tried to disarm you and it would appear he was not armed himself.
MR MZOBE: Yes, he tried, but I cannot say whether he was armed or not, but he did try to disarm me.
MR SIBANYONI: You didn't see any weapon in his possession?
MR MZOBE: No, I didn't. He didn't have anything in his hands.
MR SIBANYONI: Neither was Samuel Njabulo Ndovela having any weapon in his hands?
MR MZOBE: No, I didn't see anything in his hands.
MR SIBANYONI: Why did you evade the police and also lie to them when they asked you whether you knew any person with the name of Tobela, I mean with the name of Thulebona, in other words your name, why didn't you say at the same time these people swore at you in town, they threaten to kill you and you are afraid that if you go home they will follow you and kill you at home, you decided to stand your ground?
MR MZOBE: The reason I didn't tell the soldiers the truth, I knew that they were going to arrest me. It was difficult for me to tell them that I am the one who shot people because I knew that they were going to arrest me. They were looking for me because they wanted to arrest me and I was scared.
MR SIBANYONI: What do you say to what I'm going to ask you now? It would appear as if there was an ANC group which swore at you in town, at Post Shepstone, and prevented you to proceed with your trip, you became angry and when you arrived at Baboi, you knew which area was occupied by the ANC people and you decided to attack the group you saw under the tree, irrespective of whether they were ANC or not and irrespective of whether they were people who swore at you at Port Shepstone.
MR MZOBE: Yes, I do understand that, but what I'm saying is what I believed at the time. What I've already told you is what happened and what I personally know.
MR SIBANYONI: Because on page 22 of your statement you are saying
"I had no specific target as all of them were actually my target as they were all ANC members, including those supposedly who were not in town, as they would have provoked me to if they were in town."
MR MZOBE: Since the group who harassed me in town was the ANC group, when I decided to go back and attack this group I was going to shoot anyone, not that I wanted to shoot an individual ANC member, but anyone among the group.
MR SIBANYONI: Thank you, Mr Chairperson, no further questions.
MR DE KLERK: No questions from my side, Mr Chairman.
NO RE-EXAMINATION BY MR DE KLERK
MS MTANGA: No questions, Mr Chairman.
NO QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you.
MR DE KLERK: That's the applicant's evidence, Mr Chairman.
WITNESS EXCUSED
MS MTANGA: At this point, Chairperson, I'd like to call Mr Sebenza.
CHAIRPERSON: How long do you think his evidence will be?
MS MTANGA: Not more than 20 minutes, Mr Chairman.
CHAIRPERSON: Perhaps it would be better to take the adjournment at this stage, so that we can continue with his evidence uninterruptedly. I don't know what provision is made for refreshments for persons appearing here, but it seems to me, going by what normally happens here, it would be sufficient if we adjourn till half past one. Will that suit you?
MS MTANGA: That suits me, Mr Chairman.
CHAIRPERSON: We propose to take the adjournment now, so as not to interrupt the next witness in his evidence, but we will be adjourning till one thirty.
COMMITTEE ADJOURNS
ON RESUMPTION
MS MTANGA: ... Patrick Sebenza as a witness, on behalf of the victims.
MR DE KLERK: Mr Chairman, can I quickly call Mr Mzobe? I don't know where the orderly is.
MR LAX: Sadda, could you just get Mr Mzobe here? I'm not sure where he is.
Would you please stand, Mr Sebenza
MBULELO PATRICK SEBENZA: (sworn states)
CHAIRPERSON: Thank you.
EXAMINATION BY MS MTANGA: Thank you, Chairperson.
Will you please give your name, and explain to this Committee where you come from, for the record.
MR SEBENZA: I am Mbulelo Patrick Sebenza from Port Shepstone.
MS MTANGA: Mr Sebenza, we would like you to give evidence regarding what took place on the day Mr Bazely and Ndovela were killed. You have heard Mr Mzobe's evidence to the effect that there was friction between the ANC and the IFP. I would like you to start by giving us your view as to this background.
MR SEBENZA: Alright. In the first instance I would say that on this day when Bazely and Ndovela were killed, in the morning when we left home, because I was staying with Brian Bazely, on that morning we passed Mzobe's home on our way to town and when we arrived in town we hung around and we met the applicant, Mr Mzobe.
There is one place near the butchery where Mr Mzobe found us. We were braaing meat and we chatted. We knew him from before because we went to school together. I did not have any quarrel with him, there was no conflict between us, and that's the impression I had about him. Because I had last seen him a long time ago he asked me how I had been and I told him that I was okay and we parted there.
From there, it was about five to one, we could not go into the shops and the we just went to board a taxi. At the taxi rank we met Mr Ndovela. He was with a certain person whose surname is Zulu. There were four of us. We boarded the taxi and we boarded the taxi to Kwakanjaza and on arrival we bought some meat and went into some room.
On arrival we asked somebody to cook that meat for us. We went outside to sit under a tree because it was hot on that day.
MS MTANGA: Can you please explain, when you say "we", who were you with?
MR SEBENZA: It was Brian Bazely, Mr Ndovela, Mtago Zulu and myself.
We sat under a tree in the shade. As we were still sitting there we bought two beers. While we were sitting the applicant arrived. Before he arrived some people came to join us. There was somebody called Shatini Zulu who came, but I did not know the others ...(intervention)
MR LAX: Can I just stop you, I didn't catch the name of the second Mr Zulu.
MR SEBENZA: I know him by the nickname Shatini, I don't know his real name.
MR LAX: Thank you.
MR SEBENZA: Whilst we were still waiting for the food to cook the applicant arrived. He had a young boy by the arm and when he arrived he just said: "Hey you sons of bitches, do you know this boy?" When he approached we saw him from a distance. We were not sitting directly under the tree, but in the shade of the tree and you could see a person approaching from the road because there was just one road.
Because we had no grudge against him we were not surprised to see him. Personally I was not shocked or surprised to see him because I had seen him before in town and we had chatted and we had discussed many things, even referring to our days when we used to play soccer.
When he came with this boy and asked us if we knew this boy, and I didn't know the boy. The applicant had a gun. I was not really shocked or worried that he might do something. Ndovela then looked at him and when he did so the applicant asked him what he was looking at and then he started firing.
MS MTANGA: Did anyone in the group that you were sitting with swear or make any threats against Mr Mzobe?
MR SEBENZA: No, no-one did.
MS MTANGA: Did you know of any friction between yourselves as ANC people and Mr Mzobe, as an IFP person? Was there such friction between yourselves?
MR SEBENZA: I will put it this way, as far as I am aware, because I did not reside in the area most of the time, there was friction but there was no open war, you could still move around the area, you were free to move around and visit each other's areas. I was not aware of, I did not have a grudge. There was no conflict between myself and Brian. I did know what the situation was with regards to the other people.
What I would like to say is, at that time there was no serious war between the IFP and the ANC, but it was a known fact that they were two organisations existing in that area.
MR LAX: Can I just ask a question, specifically of the interpreter, did the witness say
"there was no conflict between myself and Brian"
or:
"between myself and the applicant"
Because you interpreted the word Brian.
MS MTANGA: Can I ask him that?
MR LAX: No, I want the interpreter to answer. You were interpreting, did you perhaps make a mistake?
INTERPRETER: I may have, but I thought I heard "Brian". Maybe I should clarify it with the witness.
MR LAX: Please, if you would.
MR SEBENZA: ...(no English interpretation) no conflict between the applicant ...(no English interpretation) Brian.
MR SIBANYONI: You want to say there was no conflict between Brian and the applicant?
MR SEBENZA: Yes.
MR SIBANYONI: Nor any conflict between you and the applicant?
MR SEBENZA: What I am saying is there was no conflict between myself and the applicant, nor between Brian and the applicant, because the two of us, Brian and myself, did not have any conflict with the applicant.
MR SIBANYONI: What we want to clarify is, it sounded as if you are saying you and Brian were not fighting, there was no conflict between you and Brian, but you are saying between the two of you on the one side and the applicant on the other side, is that correct?
MR SEBENZA: Yes, that was misunderstood. What I'm to clarify is that the applicant on one side as well as Brian and myself on the other did not have any conflict.
MS MTANGA: Mr Sebenza, are you able to tell this court whether your cousin, Brian Bazely, belonged to any political organisation or not?
MR SEBENZA: As far as I am aware, I'm sure he was not affiliated to any political organisation.
MS MTANGA: What about yourself?
MR SEBENZA: Yes, I was a political organisation.
MS MTANGA: Which organisation was that?
MR SEBENZA: The ANC.
MS MTANGA: Is it your evidence that the applicant only started shooting when he questioned Mr Ndovela as to why he was looking at him? Is that when he started shooting at you?
MR SEBENZA: That is correct.
MS MTANGA: No further leading of evidence, Mr Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
CROSS-EXAMINATION BY MR DE KLERK: Thank you, Mr Chairman, I just quickly want to ask a few questions of my client. Thank you, Mr Chairman.
Mr Sebenza, if I understand you correctly, you agree with the fact that yourself and maybe other people met at some or other place in town, Port Shepstone, met the applicant? - on that specific day.
MR SEBENZA: I do not quite get you. The area in which Mr Mzobe and myself were, there were also other people that I did not know. When he found me I was with Brian and we chatted and had meat. There were other people around, such people whom I did not know and we left those people in that place, and I was not with those people I was just with Brian with whom I left after we had had meat.
MR DE KLERK: How many of the people under the tree were initially in town together with you and Brian?
MR SEBENZA: Which people are you referring to?
MR DE KLERK: Who was in town where you braaied meat and where you met the applicant? Were any of those people that were with you there in town where you braaied meat and spoke to the applicant and greeted him and so forth, any of those people, were any of them under the tree?
MR SEBENZA: No, none of those people were in town. I did explain that when we were under that tree, I was with Brian and then the applicant arrived. That is when we were in town, but when we went to Kwakanjaza there were four of us because we found these other people in the taxi rank, they had not been with us at the butchery.
MR SIBANYONI: Sorry, Mr de Klerk.
When you met the applicant in town was Brian with you?
MR SEBENZA: Yes.
MR DE KLERK: And Mr Ndovela?
MR SEBENZA: No, he was not.
MR SIBANYONI: And Zulu?
MR SEBENZA: He was not there either.
MR SIBANYONI: Right. And then this meat was braaied, not in town but at the other place you call Baboi, am I correct?
MR SEBENZA: It's not correct. We had the meat at the butchery, that is outside the butchery. There is a place where you can braai meat outside the butchery. The meat I referred to in Baboi was different. We bought another pack of meat which we were going to have when we arrived at Baboi. That is when Ndovela and Zulu were present. They were not with us in town.
MR SIBANYONI: Thank you, Mr de Klerk, I wanted to clarify that.
MR DE KLERK: If I understand your evidence correctly, in town when you met the applicant, there were only nice things discussed between yourselves and the applicant, there was nothing bad said to him?
MR SEBENZA: That is correct.
MR DE KLERK: So there was no reason for the applicant to later attack you, is that what you're saying?
MR SEBENZA: That is correct.
MR DE KLERK: Did you hear anybody out of your group or in the area where you were, saying anything bad or derogatory towards the applicant?
MR SEBENZA: Let me explain it this way. In the group that I was in there were three people, it was myself, Brian and the applicant.
MR DE KLERK: ...(indistinct) or anybody close to there, did you hear anything that day, somebody saying bad things about the applicant?
MR LAX: Mr de Klerk, maybe I can help you. ...(intervention)
MR SEBENZA: No.
MR LAX: Let's leave it.
MR DE KLERK: And if I understand you correctly, between yourself and the applicant there was actually quite a good relationship?
MR SEBENZA: Yes, as far as I am aware we were on good terms.
MR DE KLERK: Could you see if the applicant was following you or was it purely by chance that he came to the same place where you were under the tree, after you've met him in town?
MR SEBENZA: Even if it would have been able - we would have been able to see if he was following us, but it would have been difficult to think anything of that fact because I had no reason to believe that he could do anything to us, because even when he arrived having that gun in his hand I was not worried because I knew us to be on good terms.
CHAIRPERSON: Can I interrupt you for a moment. I think you have told us that this incident outside the butchery took place some time before one and that you left at 12H55.
MR SEBENZA: That is correct.
CHAIRPERSON: And according to your statement it was about 3 o'clock when you were sitting in the shade of the tree.
MR SEBENZA: Yes, around that time although I did not check the time, but it must have been around that time.
MR DE KLERK: Mr Mzobe the applicant, his instructions to me is that he denies that he spoke to you next to the butchery.
MR SEBENZA: The applicant talked to us near the butchery. I would say that at that time the applicant should have seen us and recognised us because he spent about an hour with us outside that butchery.
MR SIBANYONI: Were you with the applicant at the butchery for the whole hour?
MR SEBENZA: As I mentioned before, it was around an hour, I cannot be too certain that it was an hour, but because of the length of time that we spent, I think it was around an hour.
MR DE KLERK: If I understand you correctly, Sir, this hour or time that you spent with the applicant, according to you next to the butchery, is quite an important factor and that is also why you testified regarding that today.
MR SEBENZA: I don't quite understand. If you refer to it as important, what are you comparing it to?
MR DE KLERK: No, I'm asking you, Sir, do you think it's important, that on the same day this killing took place you saw the applicant and he spoke to you and there was no animosity between you and the applicant in town?
MR SEBENZA: Yes.
MR DE KLERK: Will you please look at page number 41, 42 and 43 of the bundle. Is that your statement that you made to the police?
MR SEBENZA: I don't have the statement with me. Yes, it is.
MR DE KLERK: Yes, just confirm on the last page that it's your signature and so forth.
MR SEBENZA: Yes.
MR DE KLERK: And this was made, this statement was made on the 6th of May '93, correct?
MR SEBENZA: I would not comment on the date because I cannot recall the incident, the date. We are ...(intervention)
MR DE KLERK: Okay just to clarify, do you remember making such a statement?
MR SEBENZA: ...(no English interpretation)
MR DE KLERK: Was the statement read back to you, just to make sure that you've explained everything?
MR SEBENZA: Yes, it was read to me. I read it myself.
MR DE KLERK: The only reason why I'm asking is that in this statement and I just want, maybe you can explain to the Committee, there's nothing said about this aspect that you met the applicant in town, there you spoke to him or were with him for at least an hour and there was no animosity between yourself and the applicant.
MR SEBENZA: The statement - when I wrote the statement I was at college and the person who took the statement did not have sufficient time. He told me not to recall everything that had happened on that day, but to focus on the incident itself, because he was in a hurry and I also did not have sufficient time. He had not made a prior appointment to come and see me, that is why we did not have sufficient time together.
MR DE KLERK: If I understand you correctly the person who took the statement, listened to the story and then told you: "Well that is not important, we don't have time for that, I'm not going to note it"?
MR SEBENZA: What I'm explaining is that when he took the statement there was little time. I think this is the second statement because I made two statements. I'm not really sure which is the first and which is the second one. The first statement I made I was still in shock and I made another one thereafter.
MR DE KLERK: When you - did you testify at the criminal trial, Sir?
MR SEBENZA: Yes.
MR DE KLERK: Did you testify regarding this incident at the butchery? The reason why I'm asking is, when I perused the judgment I did not see that Judge Combrink made any mention of this part of the evidence.
CHAIRPERSON: Was it relevant?
MR DE KLERK: Mr Chairman, I think it's relevant regarding the evidence that is led ...(intervention)
CHAIRPERSON: The accused's version was a complete denial, was it not?
MR DE KLERK: Yes. The relevance to this application today, Mr Chairman, is that it seems that the applicant testified that there was something, somebody swore at him or told him some bad words in town ...(intervention)
CHAIRPERSON: Yes, but he hadn't said that to anybody in May of this year, had he? At the time of his trial he hadn't said it. This is just something he's come with for his application, isn't it?
MR DE KLERK: That's correct.
CHAIRPERSON: So would you have expected the police or anyone else to be in the least interested in what people had been doing that morning? If you look at all the statements we've got, they all start at two or three in the afternoon.
MR DE KLERK: I accept that, Mr Chairman. Maybe the witness can just explain then I won't take it further.
MR LAX: He has explained. With the greatest of respect, Mr de Klerk, he said
"The policeman told me to focus on the incident, that's what I did."
CHAIRPERSON: And talking about your condition, were you shot?
MR SEBENZA: No, I was not shot, but I just had a muscle.
CHAIRPERSON: And you had to go to hospital yourself?
MR SEBENZA: Yes, I did.
MR DE KLERK: Let's just quickly, one or two questions regarding the incident. You listened to the evidence of the applicant, he testified that he shot at the people that were there under the tree, he did not really look at who he was shooting at, he just indiscriminately shot at the people in front of him. Will you agree with that?
MR SEBENZA: I would not agree with that, because you can't claim not to see a person in front of you. When he arrived he spoke to these people, he asked them a question and when they were about to respond to him he then started shooting. He did see who these people were.
MR DE KLERK: Did he call the names and say: "Ndovela (or whoever) I see you, I'm going to shoot you. You and you, I know you're ANC, I'm going to shoot you", or did he just shoot?
MR SEBENZA: As the applicant said he knew me, he knows me. We had been together in town before. There was no way he could not have seen me. I don't think you can possibly say that you do not see a person that you know perfectly well.
MR DE KLERK: Thank you, Mr Chairman, no further questions.
NO FURTHER QUESTIONS BY MR DE KLERK
CHAIRPERSON: Re-examination?
RE-EXAMINATION BY MS MTANGA: Thank you, Mr Chairperson, I just have one question.
In your answers to the questions by Mr de Klerk, you have stated that you were with Brian Bazely and then when you went to the taxi rank you found two other people, who were these people?
MR SEBENZA: We met Ndovela's son as well as somebody whose surname is Zulu. I was seeing these boys for the first time. They knew Brian and because they knew Brian, we all went together.
MS MTANGA: From there did you all go to the place where you had, to Brian Bazely's girlfriend's place, all of you?
MR SEBENZA: Yes, we all went there.
MS MTANGA: Thank you, Mr Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: I don't know if you heard the evidence of the applicant, but as I understood it he said that in this area the ANC district and the IFP district, if I can call them that, were divided by the road, is that so?
MR SEBENZA: If that is so. The applicant knew where we stayed and we normally used to pass his house when we went to town and the applicant would also pass my home when he went home. I am not aware if there were any demarcation lines, I would just travel all around the area. I don't remember there being any borders to demarcate the area.
CHAIRPERSON: No, it wasn't demarcate, but it was - this tree that you were sitting under, which is outside the, where Happiness Mtombi Mtolo lives, wasn't it?
MR SEBENZA: Let me put it this way. This person lived near where that tree was.
CHAIRPERSON: And was it an area where ANC supporters lived?
MR SEBENZA: As I mentioned before, I am not aware whether the people who stayed in that area were ANC or IFP. It would not be easy for me to answer that question because I do not know how many were ANC or how many belonged to the IFP.
MR LAX: Did you know the political affiliation of the applicant at that time?
MR SEBENZA: At that time I would not claim that I knew what organisation he was affiliated to, because at the time I was no longer residing in Port Shepstone, but I was aware that at the time the areas were now being divided into IFP or ANC strongholds, but I did not care about that, I regarded him as my brother. That is why I managed to talk to him and when he came to chat to us when we were braaing meat, I chatted to him and we shared the meat. I was not interested in his political affiliation.
MR LAX: Did you see the applicant at the taxi rank before you came back?
MR SEBENZA: No, I did not.
MR LAX: Did you Masa Sandile Khambule at all on that day? Do you know this person?
MR SEBENZA: I do not know him.
MR LAX: Now what is - how long would it take from the taxi rank in Port Shepstone, travelling by taxi to the place where you were at the flats?
MR SEBENZA: Are you referring to the distance or the actual time that it would take to travel the distance?
MR LAX: The question was quite simple. How long would it take you to travel from town to the flats in time, I didn't say how far was it, I said how long would it take you.
MR SEBENZA: I am not sure how long it would take because the taxi stops at several points before it arrives at the place.
MR LAX: But would it take you an hour, would it take you half an hour, would it take you 15 minutes? We just want approximations.
MR SEBENZA: I would estimate that it would be less than an hour, about 15 minutes or 30, depending on how often the taxi stops.
MR LAX: Do you have any recollection of how long it took you on that day?
MR SEBENZA: No.
MR LAX: Do you recall that you left round about 1 o'clock, when the butchery closed and the other shops closed?
MR SEBENZA: ...(no English interpretation)
MR LAX: Just listen to the question before you start answering, I'm not finished. You also recalled that this incident happened somewhere round about 3 o'clock. That's a period of two hours approximately, so what I'm asking you is, by what time would you have been at the flats? - as far as you can remember.
MR SEBENZA: I will put it this way. I do not want to respond to questions carelessly. When I made the estimation around one, it was because when we went into a shop it was, we were told that we could not get in because it was five to one and the estimation with regards to 3pm is because there was a soccer match on TV. The distance between Port Shepstone and the flats is not long.
When we arrived we went into the room and spent some time and thereafter went out into the shade. This took time. And in-between the time that we sat in the shade and the time that the applicant arrived, I cannot estimate just how long it took and therefore it is difficult to answer those questions.
MR LAX: Now how long had you been at college for at that time?
MR SEBENZA: It was my first year at college.
MR LAX: So you'd only left the area from about January of that year?
MR SEBENZA: I did not leave in January, I had left in 1991, and resided in Durban, and I joined the college in 1993. I had come back for my practical during that Easter period. After my practical I was just about to leave because I had planned to leave on that day, but changed my mind and I decided to go on the following day, which would have been a Sunday.
MR LAX: The point I'm getting to is this, you've said that you weren't aware of any major violence between the IFP and the ANC in that area, is that right? Did I understand you correctly?
MR SEBENZA: I'd have to clarify that. If you've been away from an area for a long time and if you want to travel in that area, you would enquire if it is safe to do so. I was informed that you can travel anywhere because you did not have a problem with anyone. That is why I went past the applicant's home in the morning when I went to town.
Before I left for town I had consulted with the people who resided in the area, I just enquired what the situation was like, not necessarily the political situation but also with regards to crime and safety, if one is safe to travel around in the area.
MR LAX: So you didn't know that there was a lot of political violence going on in that area at that time?
MR SEBENZA: From the information that I received the violence was not as serious. As far as I'm aware, the violence started after that incident. Maybe we have different understandings of what that violence means, but as far as I am aware, after the incident that was when houses were burnt, that was when people were being shot and killed.
With regards to political affiliation that has existed for a long time, but the war only started after that incident. There might have been tension, but I was told that there was no war, there was no political war in the area.
MR LAX: Thank you, Chairperson, no further questions.
MR SIBANYONI: Thank you, Mr Chairperson.
Mr Sebenza, I heard you saying Brian was not affiliated to any political organisation. I can't remember whether you said anything insofar as Ndovela is concerned. Was he affiliated to any political organisation?
MR SEBENZA: As I mentioned before, I had met him on that day for the first time, at the taxi rank when we were about to board the taxi. It would be difficult for me to know because I just met him on that day.
MR SIBANYONI: But when the incident happened, you were present and you observed what was happening.
MR SEBENZA: Yes.
MR SIBANYONI: What would you say, what caused the applicant to shoot these two people?
MR SEBENZA: As far as I know - I do not think I should answer that question because he is the person who shot at these people. It should be difficult for me to respond to that. He just asked that person: "What are you looking at?" and started shooting. I am therefore not in a position to say why he shot at that person. Why he shot at them I do not know.
MR SIBANYONI: Is there anything which Brian which provoked the applicant to shoot at him?
MR SEBENZA: When he started shooting we were shocked and we ran away because we were not armed and we had just been sitting around enjoying ourselves. I only heard today that he shot at Brian because he had grabbed him, but when that happened I was no longer there because I had already fled.
MR SIBANYONI: Thank you, no further questions, Mr Chairperson.
CHAIRPERSON: Thank you. Any further witnesses?
MS MTANGA: None, Chairperson.
CHAIRPERSON: Right, you are excused.
WITNESS EXCUSED
MACHINE SWITCHED OFF
CHAIRPERSON: ... take?
MR DE KLERK: Argument won't be too long, Mr Chairman.
CHAIRPERSON: Should we dispose of it and then get on to the next matter?
MR DE KLERK IN ARGUMENT: I would agree to that, Mr Chairman.
Mr Chairman, firstly I would just make the following submission, that the applicant's application for amnesty was done by himself and also later a further affidavit was obtained from the applicant by the Amnesty Commission itself.
Firstly, the crux of the applicant's application is firstly that he was a member of the IFP, was trained ...(indistinct) Zulu, where he received training with firearms, as he mentioned. In his statement he also mentioned G3's and so forth. This is not an unknown fact and surely has been testified many, many times before this Commission.
At that stage he was 21 years of age. He returned back to his area, that is the Baboi area near Port Shepstone. He did not receive a firearm, he actually went and asked for a firearm, which was then handed to him. It is my submission that out of that it seems that he was quite keen in protecting what he perceived as ...(intervention)
CHAIRPERSON: But he hasn't said he was protecting anybody except himself, has he? This is not a case where he said: "I was protecting my community", this is a case where he said: "I lost my temper and I decided to clean them out".
MR DE KLERK: I agree, Mr Chairman, I'm just purely stating the fact that he wanted a firearm because he was trained to protect, as he explained and also stated in his affidavit, not regarding this specific aspect but it seems that when he asked for the firearm, it was in the sense of now being trained as a, what he perceived, as a protector and as he stated
"Protecting the IFP members from the ANC"
- in paragraph 8 of his statement. Mr Chairman, it seems that on this specific day something must have triggered the applicant to do this deed. His explanation was that because of this provocation that happened in town, and that was also his evidence-in-chief, he lost it. And because of that he then went and shot the people which he subjectively perceived that the people, that was the people swearing at him, being ANC members and so forth. Maybe objectively I will concede to the fact that it is difficult to comprehend, but subjectively at that stage, and that is the evidence of the ...(no sound).
Mr Chairman, the political objective, in my submission, will be the following. I think it is common cause, the fact that there was tension and especially in the South Coast, between the IFP and the ANC.
I think it can also be accepted in a broad sense that there wasn't a, even if it wasn't a war in the sense that it was a war on paper and everybody accepted it, but there was in a big sense a war in the whole of KwaZulu Natal, and I'm sure that his has emanated from most of these applications.
It seems to me that the subjective mind-set of the applicant at that stage was that as a member of the IFP, being in that situation where there was conflict and him being specifically targeted as a person being sworn at and maybe threatened in a way, that he could now pro-actively attack ANC people and thus, like he testified, protecting and his community. And I think it emanates clearly also from what he testified, that there was also a part of that that was revenge, but it seems to me, out of his evidence, that it was clearly just revenge, it was a revenge couples with the reality of the situation where there was a conflict, him being perceived, or him perceiving the ANC as his enemy ...(intervention)
CHAIRPERSON: Revenge for what?
MR DE KLERK: Mr Chairman, his evidence was that in this situation of conflict if he allowed this to just go by, with all probability he will later be attacked in his area. That's why I say ...(intervention)
MR LAX: That's pre-emptive, Mr de Klerk, if anything, not revenge.
MR DE KLERK: Yes. What I'm trying to address here, Mr Chairman, is the fact that the subjective situation of the applicant at that stage was, in the area where he stayed he perceived that by killing these people he may pre-emptively stop him being killed. That was his evidence.
MR LAX: How do we deal with the issue of proportionality, proximity, all those aspects in relation to this particular set of facts?
MR DE KLERK: Firstly, taking the political situation into consideration, as I understand it, and I think the Commission also accepts that the IFP's policy at that stage was not a policy of violence ...(intervention)
CHAIRPERSON: ... contrary to his party's policies.
MR DE KLERK: No, Mr Chairman, I will address that now. But the policy at that stage, and it was accepted, is the fact that you could protect. So the policy was not to physically, without any reason, attack people, but you are allowed to protect yourself.
CHAIRPERSON: Please! People he thought may have been the people he saw in town, he didn't recognise any of them, they were a long way away from him, he came upon them suddenly, and you say he was protecting himself. I'm afraid I have great difficulty with that contention. There is no evidence that any of these other people were armed, that he believed they were armed, is there?
MR DE KLERK: Mr Chairman, I will agree with you on that, and I agree with Mr Lax as well on the basis of proportionality. My submission on that can only be that to take into consideration the circumstances, being a person who has just been trained, receiving a firearm, being in that situation. It is also true that the applicant testified, thinking back with hindsight, that maybe because of his youthfulness at that stage he would have maybe decided otherwise. What I'm trying to say is that maybe his subjective decision-making process at that stage was influenced by all these factors and could have influenced him by a pre-emptive attack and by attacking people that may not have been the real culprits.
CHAIRPERSON: ...(indistinct).
MR DE KLERK: My only submission regarding the political aspect is the fact that there was really no other motive ...(intervention)
CHAIRPERSON: ...(indistinct)
INTERPRETER: The speaker's mike is not on.
CHAIRPERSON: He loses his temper, as he said himself.
MR DE KLERK: I would in a sense agree with that, in a sense I will disagree, Mr Chairman. The basis on which I will disagree is the reality was that he lost his temper in the situation where he was an IFP member and was sworn at and certain things were said to him. So it was in a situation of political affiliation that this whole incident took place.
MR LAX: Perhaps I could help you. Is this what you're really trying to say - just so I understand you correctly, you're saying there was a political context within which this happened, which was the undeclared civil war in the province between the ANC and the IFP.
MR DE KLERK: Yes.
MR LAX: You're saying he was a trained, very young person who had animosity towards the other side and he was trained on one side.
MR DE KLERK: Yes.
MR LAX: And because of the provocation he lost it and he didn't exercise the judgement that even he concedes today he might have had he been older.
MR DE KLERK: That's correct.
MR LAX: And therefore, because of the context in which it happened, that makes it political.
MR DE KLERK: Yes, Mr Chairman.
MR LAX: Have I understood you correctly?
MR DE KLERK: Mr Chairman, it wasn't merely a situation like a bar brawl or a situation where there was a personal problem between the people, or the persons.
MR LAX: You see my difficulty, Mr de Klerk, is this. That at best at least an hours passes between the provocation and the execution - if I could use that rather loaded phrase, of his plan. Most people would have calmed down within that hour.
MR DE KLERK: I will agree with you, Mr Chairman. If it was not in the political connotation, as I'm trying to explain, if it was merely a personal problem where somebody swore at me or so forth, yes, I would agree with the Chair, that that would be the situation, but where you were influenced by this political drive, then you will lose this normal approach which you are talking about at the moment. I can't take it further than that and I just put it in that perspective.
CHAIRPERSON: ...(indistinct)
INTERPRETER: The speaker's mike is not on.
CHAIRPERSON: I take it you are going to contend that this was not, does not fall within the category of political objective as ...(indistinct) in the Act.
MR DE KLERK: Yes, Chairperson, that's my submission.
