CHAIRPERSON: Ms Moodley, I take it now you propose to lead the evidence-in-chief of Mr Madlala?
MS MOODLEY: Yes I do.
CHAIRPERSON: The co-applicant in the same incident?
THULANI CHRISTOF MADLALA: (sworn states)
CHAIRPERSON: Ms Moodley, we take it that your client is familiar with the contents of the affidavit. You know how to expedite these proceedings, it is not necessary for you to go through the affidavit, he may simply confirm the correctness of the facts contained in the affidavit and we can then accept it as an exhibit and if you need to highlight any particular evidence in some of the facts stated in the affidavit you may proceed to do so?
EXAMINATION BY MS MOODLEY: Yes Chairperson.
CHAIRPERSON: Thank you.
MS MOODLEY: Chairperson, may I just have a minute before we start? No it's fine, we can carry on. I take the point that I'm not going to read the affidavit into the record but I would like Mr Madlala to give a version of the events very crisply of what had transpired and add to this. An affidavit has already been read into the record, any additional information he wishes to bring to bear on the Commission.
CHAIRPERSON: ...(inaudible)
MS MOODLEY: I'm going to lead him but ...(intervention)
CHAIRPERSON: Don't you want him to confirm the correctness of the contents of the affidavit first and then you can if you so wish just lead him on ...(inaudible)
INTERPRETER: The speaker's mike. The speaker's mike.
MS MOODLEY: I'm sorry about that. I actually can't hear too clearly.
MR MALAN: You will hear now.
CHAIRPERSON: My microphone was not on, that's why you couldn't hear me. You'll now be in a position to hear me. I think you must let him confirm the correctness of the facts contained in this affidavit so that we can be in a position to accept it as an exhibit, then proceed to lead him on any point which you wish, you would want us to have his evidence further highlighted even though mentioned in his affidavit. Are we on the same page Ms Moodley?
MS MOODLEY: Yes we are. For what it's worth, I hear the point about ...(intervention)
INTERPRETER: The speaker's mike is not on.
CHAIRPERSON: Your microphone is not on.
MS MOODLEY: I hear what Chairperson is saying. I would read the affidavit and quickly so and then after it go to the applicant to then qualify certain aspects that he wishes to.
CHAIRPERSON: Has this affidavit not been read to Mr Madlala?
MS MOODLEY: It has been, it has been properly ...(intervention)
CHAIRPERSON: Yes and what would be the purpose of reading it again if has been already been read to him and he understands and confirms the correctness thereof? It's just a question of time on our side, we don't want to repeat.
MS MOODLEY: Look because I would have wanted to read the entire affidavit into the record but I hear what you say it's not necessary, we're wasting more time by actually debating the issue.
CHAIRPERSON: Yes.
MS MOODLEY: I think let's just go on to putting to Mr Thulani C Madlala that this is the affidavit that we've drawn and read to you and are you happy with the contents and are you satisfied that this is correct? I'm going to mark it Exhibit B and hand it in.
CHAIRPERSON: Thank you. The affidavit of Mr Thulani C Madlala marked Exhibit B is now part of the record.
MS MOODLEY: Mr Madlala, I want to take you back to the incident in Wembezi which you are now familiar with and you hear your co-accused in your trial already giving evidence before this Commission. There must be information that you would like to make known to this Commission in relation to this incident which the Commission is not aware of at this point so we would actually now want you to let the Commission know additional information in your possession which you would like to bring to bear on the Commissioners in the application of amnesty for yourself in respect of the charge of murder of Mr Phewa as well as the possession of the firearms and the ammunition. Would you like to then now explain that?
MR MADLALA: Yes. What I can say about Mr Christopher Phewa,
was an enemy to me in politics. He is the one who was among the people who were opposing ANC, who wanted to destroy the ANC. MS MOODLEY: Can you tell us about the incident on that particular day. You say there was an ANC conflict, there were people within the ANC that were at loggerheads with each other. Can you explain to us how this particular incident of the killing of Mr Phewa actually is part of this conflict internally between members of one organisation or at least, at the very least, members of an allegiance?
MR MADLALA: We were coming from the hospital to visit my uncle, Gweni. On our way from the hospital we went to the taxi rank, that is where we met Christopher Phewa in the company of the other people who were not known to me. There was a conflict among us. Happy, the one who is a co-accused was also there and Mr ...(indistinct) said we were the people who killed his father. There was a squabble, we had arguments, we ended up shooting him.
MS MOODLEY: The gun that you used, Mr Madlala, where did you get the firearm from?
MR MADLALA: I got it from Musan Nglovo.
MS MOODLEY: Would you explain to the Commission who Musan Nglovo is?
MR MADLALA: Musan Nglovo was one of the people who I referred to as an uncle because he was always with me at the time.
MS MOODLEY: And how did he feature in the organisation that you belonged to besides being an uncle?
MR MADLALA: He was an ANC member.
MS MOODLEY: But how does it come about that an ANC member hands you a firearm? Would you like to explain to the Commission about that?
MR MADLALA: He gave me the firearm in order to protect myself because the situation was tense at the time and we had to protect this ANC because the people wanted to destroy it therefore we're trying as much as we could to protect this ANC, we had no option, we couldn't stay without this organisation therefore we were protecting this organisation because they were prepared to destroy it.
MS MOODLEY: Who was prepared to destroy the organisation, the ANC?
MR MADLALA: It was Christopher Phewa and his father was among the people who played a role to destroy ANC.
MS MOODLEY: But did they not also belong to the ANC, would you like to explain that?
MR MADLALA: Yes there were ANC members before these incidents, yes I am sure that there were ANC members but as time went on there was this situation where Mr Phewa, Christopher's father became a leader of Amabuvo. There was already a conflict at the time.
MS MOODLEY: So when Phewa was killed in the centre of Escourt on that particular day you viewed Phewa not as your enemy but as the foe of your political organisation?
MR MADLALA: Yes, I regarded him as a person who wanted to destroy ANC in the area because he was totally against the roles of ANC.
MS MOODLEY: Mr Madlala, I've shown you briefly this morning an affidavit deposed to by the brother of the deceased, a gentleman called Patrick Thulani Phewa and Commissioner Malan has referred your co-accused in this matter to a particular paragraph and I'd like you to comment on that as well. It refers to the fact that the deceased's next of kin claims that he was not a member of a political organisation.
CHAIRPERSON: That's paragraph 6?
MS MOODLEY: Yes, paragrapah 6, sorry, of the affidavit.
What is your view on the matter that the deceased who was killed in this incident is claimed to be not a member of a political organisation?
MR MADLALA: I dispute that. Christopher Phewa, I knew him very well from the time he was an ANC member who would attend rallies, he would be found all over in the ANC meetings and the person who is bringing out that information I don't even know him, I don't know what else he can say because I don't even know him. I can say that person is not telling the truth if he says Mr Phewa was not an ANC member. Yes he was an ANC member and then he changed, he became an SACP member, that happened in front of our eyes.
MS MOODLEY: Mr Madlala, I'm going to ask you for your opinion and comment in respect of this next query. You know of information that has now come to pass in the press, all over in the country, we hear about third force elements and in relation to Wembezi this has become common cause, this has knowledge that we all know of. What comments do you have to make in relation to that, if any, with the knowledge that you now have?
MR MADLALA: I sometimes hear about third force from the media but I don't normally think that could be the case in our area, I don't even know how they operate.
MS MOODLEY: I want to repeat now the issue of the membership of the deceased in this matter. The deceased we've been told was a member of the ANC. Did you have that belief at the time when you committed this offence that he was your enemy not your personal enemy but the enemy of the organisation that you belonged to?
MR MADLALA: Yes, I knew him as my political opponent because he was on the other side of the Amabuvo, the SACP.
MS MOODLEY: That the firearm that was used in this incident was a firearm which you were given by your organisation?
MR MALAN: No, Ms Moodley, he said he got it from another member of the ANC.
MS MOODLEY: Mr Malan, during my instructions it became apparent that the ...(intervention)
MR MALAN: Then ask him about his answer, don't give him another version. He leads the evidence, don't put words in his mouth please.
MS MOODLEY: With all due respect. Mr Madlala, would you confirm the manner in which you received that firearm and from whom for clarity because my instructions were that you received it from a member of the organisation who had handed it to you.
MR MALAN: Yes, that was his evidence, Ms Moodley.
CHAIRPERSON: Are you Ms Moodley having a problem that we are unaware of? His evidence has already been tendered to the effect that he was given this firearm by his uncle, one Musa Nglovo.
MS MOODLEY: I have a problem, Chairperson.
CHAIRPERSON: You have a problem. Is that contrary to the instructions?
MS MOODLEY: In terms of my instructions it was apparent when I ...(intervention)
CHAIRPERSON: Won't you just tell him that he has given different instructions without leading him?
MS MOODLEY: Yes, the instructions, Mr Madlala to me, was that he was the commander who would hand you that firearm and not your uncle. He might have well been your uncle but in addition he occupied an official position within the organisation.
CHAIRPERSON: Now the proper question to put to Mr Madlala would have been, was Mr Nglovu an office bearer of any sorts within your own organisation? That's the question I think that should be put to Mr Madlala. Mr Madlala, do you understand the question that we want you to respond to? To your knowledge did Mr Ndglovu occupy any position within the ANC?
MR MADLALA: He was a member, a person that I would go to sometimes and I would ask him to lend me his firearm that he was using for protection, the firearm that he was using at the time because at that particular period the commander was not with us, he had established a certain group with the SACP members. Therefore it became extremely difficult for us to acquire firearms. Therefore people had to struggle, had to try by all means to get some weapons to protect themselves.
CHAIRPERSON: Yes Ms Moodley?
MS MOODLEY: No more questions.
NO FURTHER QUESTIONS BY MS MOODLEY
CHAIRPERSON: Ms Mtanga, do you have any questions to put to Mr Madlala in cross-examination?
CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson, thank you.
Mr Madlala, I would like you to tell this Committee in your own understanding of the situation between your organisation the ANC and the Amabuvo. What was it about the Amabuvo organisation made you as an ANC member regard them as an enemy to wage war against them? What is it about what they did, their political activities that made you regard them as an enemy?
MR MADLALA: What I can mention is this, the enmity was not that much except for the fact that Mr Bheki Msamango became one of the people who took the weapons of the ANC with the other members belonging to the ANC, they decided to establish another organisation, the one that they called Amabuvo, the SACP. He decided to go to the other side and there were rumours that Mkhize was not a right person, they said he was involved in promiscuous activities and therefore he had to be killed. That is the reason that led to some incident whereby people would be shot at without a reason and as we were confused, looking at this happening, the rumours went on and on up until such time we decided to fight because we could see that these people were prepared to destroy the ANC organisation and that was not a secret, you would get that information everywhere because they said they did not want Mkhize to be their leader, they were in their own organisation now, called Amabuvo, the SACP that is.
MS MTANGA: Can you give us an incident or maybe one of the initial incidents where the Amabuvo group led by Bheki Msamango had launched an attack against the ANC which led it to believe that they were fighting the war against you. What incident, who was attacked, who was first attacked by the Amabuvo group under the leadership of Bheki Msamango?
MR MADLALA: There was a day when they came, we were at a meeting, they came to attack us, they wanted to disrupt the meeting, shooting took place there and the people couldn't continue with their meeting, the ANC meeting. Bheki Msamango was among those people who wanted to disrupt the meeting.
MR DE JAGER: Was that the meeting addressed by Mr Gwala where the shooting took place?
MR MADLALA: There was another meeting just before Gwala arrived when Mkhize was present.
MS MTANGA: The day when you say the Amabuvo came to disrupt your meeting can you remember in which year and month did this take place?
MR MADLALA: It is not easy for me to keep such information in my memory because it's something that took place some time ago.
MS MTANGA: Mr Madlala, my question, I'm trying to understand at what point did these people become your political rivals in the struggle because so far you've told this Committee that there were some allegations being made against Mr Mkhize and those allegations were not necessarily political, were not allegations that could render the Amabuvo political rivals, that's why I'm asking you the incidents where they felt that they were launching attacks against you and then very important for us to understand at what point exactly did those people wage war against you as an ANC?
MR MADLALA: First of all they would come to school and shoot at us. There were other comrades who were shot at Wembezi High, that is a sign that these people were fighting and they died. After that Thulani was also killed, Thulani Mabasu. There are other people, many people who followed and Gerry Zuma, a bomb was planted in his house during his sleep.
MS MTANGA: In which year did all of this take place?
MR MADLALA: I can say towards the end of 1993 up to 1994.
MS MTANGA: My next question is, in trying to understand what exactly made the Amabuvo your enemies, is the act by Bheki Msamango and his group of splitting away from the ANC that made you regard them as an enemy or political rival or is it the fact that they starting launching attacks against your group that made them rivals to you?
MR MADLALA: They were enemies because they were fighting the ANC which was our organisation and they said they belonged to the SACP not ANC, that is what I think that led to the conflict. It is not only for Bheki, Bheki took the firearm from the organisation and he was not supposed to do that because the firearm did not belong to him but it belonged to the ANC but he managed to take that firearm and establish a group called SACP outside the ANC and without the permission of the ANC therefore he broke the ANC structure, that is one of the things that made us not to be in good terms with them.
MS MTANGA: Are you saying that the rivalry arose because Bheki had left the organisation and taken weapons with him, not necessarily because he attacked you?
MR MADLALA: He was a commander, he was an ANC commander. They started their own group because Mr Mkhize who was a chairperson that side they did not want him at that time as there were allegations that were going on about him. I don't know what their intention was for them to establish their own group. I don't know what his intention was.
MS MTANGA: Mr Madlala, is it their act of leaving the ANC that made them your political rival or is it their attacks on you that made them your enemy. What is it exactly that made you as an organisation as ANC, the original organisation, regard them as an enemy. Is it the fact that they left the ANC or is it because they later attacked you?
MR MADLALA: It is the act of the attacks that made us to see them as enemies because they were always fighting us all the time, that was the reason, that is the act because they wanted to destroy the ANC.
MS MTANGA: Thank you Chairperson, no further questions.
CHAIRPERSON: Thank you. Ms Moodley, emanating from Ms Mtanga's questioning, do you have any re-examination?
MS MOODLEY: No.
CHAIRPERSON: I suppose not?
MS MOODLEY: No.
CHAIRPERSON: Thank you. Mr de Jager, do you have any questions to put to Mr Madlala?
MR DE JAGER: Yes please.
Mr Madlala, you had education, you were in grade 12 when you were arrested, is that true? You can read and write?
MR MADLALA: Yes I was in grade 12.
MR DE JAGER: Did you complete your amnesty application?
MR MADLALA: Someone was writing and I was talking.
MR DE JAGER: Now I would like to refer you to page 14. I know that's a translation where according to the translation you said
"I was with Happy Aubrey Mngomezulu when we went to Escourt to buy stock for the sparza shop. It was a Friday. On our way home the IFP supporter had been mad fighting. There was turmoil and confusion, shots were fired, we ran and the police caught me"
And according to paragraph 10(a):
"The leadership has caused all the ordeal, those of the IFP against those of the ANC. There was fighting everywhere at taxi ranks, etc."
And then on page 16:
"There was fighting everywhere in Escourt, taxi ranks were divided into two, there was one for the ANC and one for the IFP."
And then can you remember that you've also completed an application for indemnity? Can you remember that?
MR MADLALA: Yes, I would like to comment about that.
MR DE JAGER: Yes okay and in that application you also referred to an IFP member that was killed and not to a member of the alliance.
CHAIRPERSON: Won't Mr de Jager assist Ms Moodley by referring her to the page of the indemnity application that he's referring to? It's the indemnity application that's translated from page 35?
MR DE JAGER: Ja, the translation is from page 35.
CHAIRPERSON: Yes.
MR DE JAGER: And it's on page 35. The end of the fourth paragraph
"While the fighting continued I heard a big noise gun sound and we fled. During that incident one person from the rival Inkatha died."
CHAIRPERSON: Yes.
MR DE JAGER: Is that correct?
MR MADLALA: I would like to comment about this statement that you've just read to me. What I can say about this statement, the one that I made. Yes, I made this statement, I had some doubts in my mind at the time. This statement that I made, the one that I made under oath is the second one but the first one I had doubts in my mind. I did not have in depth knowledge but at least know I have more knowledge and I know that I have to tell the whole truth. I am doing that now as I've just explained now in this affidavit.
MR DE JAGER: Yes but at that time you had knowledge of what happened and what was in your mind at the time of the killing and according to that you killed an IFP member?
MR MADLALA: Yes, as I've just explained that I had doubts in my mind. At least now I am confident that I can tell the whole truth in this statement, the last statement.
MR DE JAGER: Right and then ...(intervention)
MR MALAN: Sorry, Mr de Jager, can I just get more clarity? What doubts did you have in your mind?
MR MADLALA: I did not know - first of all when I was doing this application, I did not know exactly what this TRC was all about but after some time I knew that disclosure was a requirement, it's not like in the court situation where you have to protect yourself because you if you don't want to be convicted I realise that here I have to disclose everything.
MR MALAN: I thought if you would comment you would talk about the - tell us the reason why you said it was IFP? Can you tell us why you said it was IFP?
MR MADLALA: You meen the deceased?
MR MALAN: Yes.
MR MADLALA: What I can say, I used to see them going to IFP, I cannot say they did not have good relations with them because I used to see them in good terms with the IFP people, therefore I took it they were more like friends.
MR DE JAGER: So you believed that when you killed him that he was a member associating with the IFP or was in fact an IFP member?
MR MADLALA: No, not at all. I knew him as a SACP member.
MR DE JAGER: Right, then I want to refer you to page 30. That's an affidavit you made last year on the 18th November. There in paragraph 2 you said
"I wish to say the truth as I lied in my application form for amnesty."
You start off with that in paragraph 2 and then in paragraph 4, the last sentence:
"The deceased was with some of their followers shouting and passing bad remarks about our organisation. I then shot him. Happy was also in possession of a firearm but it refused to work."
Is that the truth?
MR MADLALA: He fired with the firearm, he attempted but it failed to discharge and the bullets were scattered around and the spring fell off but he attempted to shoot.
MR DE JAGER: Didn't he shoot in fact?
MR MADLALA: Will you please repeat your question?
MR DE JAGER: Didn't Happy fire shots?
MR MADLALA: He shot.
MR DE JAGER: Now why did you say the weapon refused to work, it didn't shoot, the bullets fell on the ground?
MR MADLALA: He fired with the firearm. As he was still firing the bullets fell on the ground. He couldn't continue with the firing therefore I had to do the firing.
MR DE JAGER: Didn't you shoot before Happy shot?
MR MADLALA: He first fired and I later fired after him.
MR DE JAGER: Well I want to refer you again to paragraph 4, page 30
"I then shot him. Happy was also in possession of a firearm but it refused to work."
Where did you say that Happy fired any shot?
MR MADLALA: Happy was the first one to fire and after that I started firing. He first fired and after that the firearm jammed and it released the bullets. The bullets fell on the ground and after that he stepped aside and I started firing.
MR DE JAGER: Right, well that's not what you're saying in this paragraph. Well tell use now, in paragraph 2
"I wish to say the truth as I lied in my application form for amnesty."
What lies did you tell us in your application form?
MR MADLALA: That is what I have just explained, that there was a conflict between the IFP members and us. That is information that is found in the first application.
MR DE JAGER: Why didn't you tell us that this man was a member of the Amabuvo and that was the reason why you killed him?
MR MADLALA: Will you please repeat the question?
MR DE JAGER: Why didn't you tell us in the application form that you killed Phewa because he was a member of the Amabuvo that they were considered to be your enemies and you killed him for that reason?
MR MADLALA: I disclosed that in the recent affidavit.
MR DE JAGER: So give us the reason why you lied in your application form, explain why you lied?
MR MADLALA: Are you talking about the initial application?
MR DE JAGER: Yes, to this, to the TRC, yes.
MR MADLALA: I did explain that when I was making this application I was not confident enough, I didn't have enough knowledge as far as this TRC is concerned. I later got more information and then I planned that I was going to tell the truth as is, I didn't want to have anything that could be used against me in terms of lies.
MR DE JAGER: So at first you really lied to us because you didn't know enough about the Truth Commission so you planned to lie deliberately to the Truth Commission in the first instance?
MR MADLALA: No, I was just thinking that the situation was the same as in court. I thought that I was going to get further punishment. I had such doubts on my mind up until such time when I was told that there's no punishment that would be administered to me therefore I decided to tell the truth as it is.
MR DE JAGER: Why did you go to a body where you expect extra punishment? Why in the first place approach that body if that was your honest belief?
MR MADLALA: Will you please repeat the question, Sir?
MR DE JAGER: Why did you make an application to a body which you believed would administer extra punishment to you?
MR MADLALA: I made the application because I wanted to be forgiven by the victims or next-of-kin. As a person who was my political opponent at the time, the situation was tense, I wanted to have some reconciliation. I appreciated that there was this Committee because I heard that it is a place where you can go and disclose everything so as to get reconciliation in return.
MR DE JAGER: You knew that you had to disclose everything and if you want to have reconciliation with the victims you should tell the truth. So you knew that all along and yet you proceed to tell lies, is that not the position?
MR MADLALA: Yes, I did explain the reason for me to tell lies.
MR DE JAGER: And I want to put it to you that the whole cause of the quarrels in the area was one reason and one reason only. The people were against Mr Mkhize's chairmanship, they were against him as person, isn't that so?
MR MADLALA: I am going to dispute that. As an ANC member and a community they knew very well that they were in favour of Mkhize. I cannot dispute the fact that people cannot go together, cannot have the same views all the time. There were people who will be pulling to the other side but Mkhize was the favourite and the people loved him. If the people did not love him he would not be a chairperson, as he is still a chairperson even today, as a person who was fighting for the community, helping the community in many ways.
MR DE JAGER: So you respected Mr Mkhize, is that correct?
MR MADLALA: Yes we respected Mr Mkhize very much as a chairperson of the ANC at the time.
MR DE JAGER: And Mr Mkhize told you that you shouldn't kill people, you shouldn't kill the members of the Amabuvo, is that right?
MR MADLALA: No, he never made any utterances to that effect, that was not his job.
MR DE JAGER: Did he at any moment in time, did he order you or instruct you to go and kill people?
MR MADLALA: That was not his duty as a chairperson to tell us as what to do, he was just in charge.
MR DE JAGER: Well who ordered you to kill the people?
MR MADLALA: We did not have the commander at the time who was supposed to give us orders and such things. We used to do things in the name of protecting our organisation at the time. No specific person ordered us to do something, we did that because we knew that we are obliged to protect the ANC. We did that on our own as the ANC organisation, we wanted to protect ourselves and the community.
MR DE JAGER: You said Mr Mkhize addressed a meeting where shooting broke out, is that correct?
MR MADLALA: Will you please repeat the question, Sir?
MR DE JAGER: Did I understand you correct that you told us that Mr Mkhize addressed a meeting and at that meeting shooting broke out?
MR MADLALA: Yes that is correct.
MR DE JAGER: What was he telling the people at that meeting?
MR MADLALA: The subject was this conflict in the area. He was trying to get strategies to try and put the situation back to normal because people were injured.
MR DE JAGER: He didn't want people to be shot and he asked you to have peace in the vicinity?
MR MADLALA: Yes it was a discussion that was taking place there, he was trying to prevent such things.
MR DE JAGER: And there was also the meeting, two meetings of Mr Gwala and of Mr Nsimande, Bladen Nsimande, also telling you people that you're allies and you shouldn't kill each other, is that correct?
MR MADLALA: Yes they told us more about that and they told us that there is an alliance between the two organisations therefore there was no need for us to kill another. They tried as much as they could to solve the problem but they failed because whatever they said there did not help.
MR DE JAGER: Because you people didn't obey, on both sides you didn't obey, I don't say only your side but on both sides, you didn't listen to them?
MR MADLALA: Yes I can say so. What I can explain is this, I couldn't keep quiet, watch the people fighting us and even telling us that they wanted to destroy the organisation. I couldn't allow them to that. When we attacked the SACP members it was an act of revenge because we wanted to maintain the organisation because those people wanted to destroy the organisation. Before we had to do something in terms of protecting our organisation.
MR DE JAGER: But that was contrary to what your own leader, Mr Mkhize, told you and it was contrary to what Mr Gwala and Mr Nsimande told you?
MR MADLALA: Yes they tried to solve the problem but I just take those people as a people who are stubborn, they did not want to listen because those were the people who started the conflict. I know as an individual that ANC was an alliance, had an alliance with SACP. I knew that very well but to me their behaviour, I looked at it and I was very shocked, I didn't know what was the reason for them to do that, that also confused me because I didn't know their reasons behind.
CHAIRPERSON: In other words you say what was said your leaders from the national leadership was totally different from what was happening to you as ordinary members from both parties?
MR MADLALA: Yes they wanted peace, they wanted things to go back to normal, they were trying to explain the alliance between the two parties and telling the people that there was no need at all for the two organisations to be fighting each other. Bheki himself was supposed to bring back what belonged to the organisation, as a person who had left the organisation but he did not do that. Those are the things that led to a conflict in the area and at that time ...(intervention)
CHAIRPERSON: You did not understand my question.
MR MADLALA: It's not that I do not understand you, I'm actually answering to something else. Will you please repeat?
CHAIRPERSON: My question is, the leaders from both parties, ANC and SACP were saying something else and you ordinary members from both organisations, you heard different opinions?
MR MADLALA: Yes that is correct.
CHAIRPERSON: Even though your leaders were preaching reconciliation or peace?
MR MADLALA: Yes the leaders, they wanted to have peace in the area but they did not manage because Bheki did not bring back the firearm that belonged to the organisation.
CHAIRPERSON: You as ordinary members from both parties had different opinions?
MR MADLALA: Yes that is correct.
CHAIRPERSON: Mr Malan, do you have any questions?
MR MALAN: Yes please Chair. There are two subjects that I just want to cover briefly, Mr Madlala. On page 65 of the bundle there's an affidavit by a certain Leon Graham Diederichs. Your co-applicant also referred to him. Do you know this Diederichs? He was in the presence of the victim when the victim was killed.
MR MADLALA: No, I do not know this person.
MR MALAN: Now in his statement he says that he, with Chris Phewa, was at the taxi rank. They were passing the toilets, they crossed Connor Street to go to the Department of Manpower which was opposite this ANC taxi rank. Does he describe the area correctly? Is the Department of Manpower opposite the taxi rank?
MR MADLALA: Yes that is correct.
MR MALAN: He then continues, he says
"When we passed the ANC taxi rank, Chris Phewa, the deceased, pointed to Black people at the rank and said: 'There are the people who shot my father'"
Do you remember this? This is in line with your evidence that he said that "those are the people that killed my father", is that correct?
MR MADLALA: Yes he said that he's the one who said we killed his father, Chris Phewa that is.
MR MALAN: Where were you at the time, were you sitting there at the taxi rank?
MR MADLALA: Yes, I was at the rank at the time.
MR MALAN: And you were sitting there, he says there were four of you sitting at the taxi rank?
MR MADLALA: No, I was not sitting there. I was just standing, I was with Happy, the two of us. We were waiting for a car, a certain car at the time.
MR MALAN: Were you not sitting, were you standing when you were waiting?
MR MADLALA: Yes.
MR MALAN: Are you sure about that? You're sure you never sat there waiting? Could it be right that when they first passed you were sitting down?
MR MADLALA: No, we were not sitting down, we were standing waiting. I remember very well.
MR MALAN: Then this Diederichs continues, he said that Phewa said, that Chris Phewa said this out loud and they heard what he had said so he talked loudly when he said
"There are the people who killed my father."
Did he say it loudly?
MR MADLALA: Yes, he said that loudly because we could hear him saying that because an argument or some argument came up during the time.
MR MALAN: Now tell us about this argument because you talked about a squabble and you talked about an exchange of words. What was the argument that ensued?
MR MADLALA: He was insulting us and he said we killed his father and he was insulting us referring to us as dogs who were with Mkhize and saying that we were nothing and he would say anything that he wanted to say to make sure that he was insulting us. There was that confusion or exchange of words and we shot at him and we killed him.
MR MALAN: Well he talked about - he said you killed his father, he said you were dogs, ANC's dogs and he talked about Mkhize and then you continue, you say
"He said anything he wanted to say."
Now what did he say? Was there an argument? Did this continue for some time or not?
MR MADLALA: That did not take long because even where he is now he knew very well that he was at the ANC rank where only ANC people were allowed to board a taxi. I don't even know what is it that he was looking for there because he was our enemy at the time.
MR MALAN: Ja but you see they believed that they were part of an alliance in some way, I mean in any event Diederichs there's no indication that he was political, let me just make this clear. Diederichs says he didn't know you, he knew Mngomezulu which he refers to in the statement here as Ntete but I guess it's Tete. Is that Mngomezulu's name? Tete?
MR MADLALA: Yes.
MR MALAN: Is it Nteti?
MR MADLALA: Nteti. What I can say about that Diederichs, there's nothing much I can say about him. The only person that I can talk ...(intervention)
MR MALAN: No, no, you're not hearing my question. I want to know who is Ntete?
MR MADLALA: Ntete is my co-accused.
MR MALAN: Ja, your co-applicant, Mr Mngomezulu, it's his nickname?
MR MADLALA: It is just a nickname, Ntete.
MR MALAN: Yes, now he says he knew him well because he says they played soccer together?
MR MADLALA: I wouldn't know about it.
MR MALAN: You wouldn't know?
MR MADLALA: They knew each other but I was not a soccer player, I used to see him. There was nothing much between me and him.
MR MALAN: Now let me just ask you, at that time would the soccer team have members of the Amabuvo and the ANC in the same team? Would they play soccer together?
MR MADLALA: There were no soccer playing at the time, there was no sports at all because of the conflicts at the time.
MR MALAN: Then he continues in his statement, then he says one of the men - two of the men had firearms. He said one of the men and this is then Mngomezulu
"We played soccer together and another man with a firearm was not known to me. When they were approximately 6 metres away from us, both of them started shooting."
In other words he says after the deceased had referred to you as the people who had killed his father, you approached them and at a distance of 6 metres you fired the first shots. Is he lying?
MR MADLALA: Yes, we did that, we fired.
MR MALAN: You fired, from a distance of about 6 metres?
In other words about from where you are to the chair, is it that far or can you point to us the distance where you first started shooting?
MR MADLALA: I fired from a distance like from where I'm sitting now to the lady who is sitting on the other side. My partner fired and his firearm jammed and after that I started shooting. I cannot say for sure how many metres.
MR MALAN: Just for the record, Ms Moodley, can we be agreed that the applicant, the witness is pointing a distance of close to 10 metres, 10 paces?
MS MOODLEY: 10 paces, yes.
MR MALAN: Now then he continues and he says that Phewa fell to the ground, he managed to get up onto both knees leaning with one of this hands on the pavement. Then he says both of you came up to him and when you were approximately one and a half metres, that's a pace and a half from him, you shot him again, is that correct?
MR MADLALA: I came shooting for the second time, I fired only once. I did not fire on intervals, different intervals, I used four bullets and I fired only once. I did not shoot at intervals, I just fired only once.
MR MALAN: Now then my question is, this argument, this exchange of words, this squabble that you talked about where you were shouting and he was saying to you anything he wanted. Did that take place over a distance of approximately 10 metres, were you standing that far apart when you were exchanging words or where you closer to each other?
MR MADLALA: We were still at that distance because he was my worst enemy in politics. I wouldn't allow him to talk just next to me, I wouldn't allow that to happen. He was howling from a distance and ...(intervention)
MR MALAN: You see, why I'm asking this is the impression we had and unfortunately I didn't put this to Mr Mngomezulu is, the impression I had at least, speaking for myself was, that he gave evidence that this Chris Phewa came up to him in a very threatening manner and that he had to protect himself and that's why he shot? So that's not correct? He shouted from a distance and you had the discussion and then you shot him?
Is that your version?
MR MADLALA: What I can say is this, I cannot say he did not pose a threat, he did pose a threat as our enemy, they were always armed. You wouldn't know what would happen after that. I wouldn't say he was coming as a friend. As our enemy there were people who were always armed.
MR MALAN: Okay, then you're talking about them being always armed, there's no evidence whatsoever that they were armed on that day. In fact your co-applicant made it quite clear that he did not see an arm or any arms on the deceased or on anyone there?
MR MADLALA: Yes I do not dispute that.
MR MALAN: You confirm that they were unarmed?
MR MADLALA: I did not search him to see whether he was armed or not.
MR MALAN: Then - thank you, let me just refer you then to another matter which I want to clear up in my own mind and that is the relationship between the SACP and the ANC. Now if I understand the evidence of yourself and your co-applicant correctly, you are saying that the SACP formed their own group, the Amabuvo whatever.
CHAIRPERSON: The Amabuvo.
MR MALAN: Is it Amabuvo? The Amabuvo formed their own group and you were unhappy about them organising separately?
MR MADLALA: Mr Phewa is one of the people who joined this Amabuvo and he became there sort of leader. It's not that I was dissatisfied about this but the only thing that I was not satisfied with, there was this aim of theirs, trying to destroy the ANC. I know very well that SACP and ANC there is some alliance but they were just fighting the ANC.
MR MALAN: Yes but I just want to find out exactly what the problem is. If I refer you to the transcript of the evidence of Mr Mngomezulu at the previous occasion - Ms Moodley, this is on page 380 of the transcript. Mr Mngomezulu gave evidence that the Amabuvo formed their own organisation and the ANC members were unhappy with that. 380.
MS MOODLEY: Yes.
MR MALAN: But at the same time he understood it that Mr Phewa who was their leader at the time wanted to become the chairperson in the place of Mr Mkhize, is that correct? Was that also your reading of the situation? He wanted Mkhize out and he wanted to replace him?
MR MADLALA: Yes as a person who was fighting ANC they said that they wanted to remove Mr Mkhize, they did not want him there, that is their means of trying to remove him. That is why they had to form the SACP and they wanted to remove him.
MR MALAN: But they wanted to replace him as chairman of the ANC, you see that was the evidence of the branch. That's what Mngomezulu said he thought the position was. In other words he knew that there was an alliance and he gave that evidence. he understood that the ANC and SACP were in an alliance. Yes there was conflict, rivalry within the alliance. The Amabuvo organised separately and they wanted to depose Mr Mkhize and to replace him with Mr Phewa. Was that also your understanding?
MR MADLALA: They way I saw the situation was that they wanted to fight ANC. They wanted to fight ANC, that was proven in their activities.
MR MALAN: Yes, no let's accept that for the moment. I'm just asking about the organisation. They wanted Mr Mkhize out. Who did they want in his place as chairperson, was it Phewa they wanted in his place?
MR MADLALA: It is clear that they wanted to place Phewa.
MR MALAN: In Mkhize's place?
MR MADLALA: It is clear that that is what I think they wanted to place Mr Phewa because he was once an ANC member before he formed this other organisation.
MR MALAN: My reading of the situation is and I'm not referring to the situation as you understood the fighting, I'm not talking about the fighting, but the rivalry was and that's the evidence as I analyze it, the rivalry was within the alliance between the Amabuvo group and the ANC group as to who was to be the chairperson in Wembezi. The ANC wanted Teaspoon Mkhize, the Amabuvo wanted Phewa, is that right?
MR MADLALA: Yes that is correct.
MR MALAN: Thank you, no further questions.
CHAIRPERSON: Ms Moodley, emanating from the questions from the panel and I think it's from the panel only because you were given an opportunity to re-examine after Ms Mtanga's cross-examination. Are there any questions that you want to put to Mr Madlala on clarity only?
MS MOODLEY: No, not.
CHAIRPERSON: Thank you. Does this therefore conclude the evidence of Mr Madlala?
MS MOODLEY: Yes Chairperson.
CHAIRPERSON: Mr Madlala, you are hereby excused, you can return to your chair behind. You may remain seated next to your attorney.
WITNESS EXCUSED
CHAIRPERSON: Ms Moodley, where do we go from here?
MS MOODLEY: I want to make submissions, Chairperson, I had intended to call an expert witness here today but Peter Kerschoff is now late and is not in a position to present evidence. What I want to ask permission of this Commission to make submissions and hand in written documentation of excerpts of a Monitor Report which gives context in perspective of Wembezi. I hear the concerns that one might have with understanding the context and the conditions pertaining at the particular time in Wembezi if I have permission to do that?
CHAIRPERSON: You may do that, you can give us whatever information you wish to give us. Bearing in mind obviously that for us to be able to understand the context we cannot go beyond the comprehension of the individual applicants themselves, how they understood the situation, what motivated them to commit the deeds for which they are seeking amnesty, we cannot go beyond the requirements of Section 20, sub-section 3 pertinently but you may proceed to hand over any documents you want us to have sight of.
MS MOODLEY: Yes, I'm mindful of the limitations and the restrictions that the Commission operates under and I do believe that any information that I hand in is going to be useful in determining those very issues in Section 20. The Monitor is a monthly report that has come out over the years. I'm going to refer to those individual monitors that I have made copies of the relevant pages and ask for those particular excerpts to be read into the record because they relate to the actual incident of the SACP/ANC conflict in the Wembezi area.
MR MALAN: Sorry Ms Moodley, may I just make it clear to you that once you submit the document it becomes part of the record. You don't have to read it into the record, it is part of the official record.
MS MOODLEY: No I understand that but in my understanding and having followed the TRC hearings elsewhere there has not been adverse response to actually reading into the record those relevant portions because I'd like for that to be highlighted. There are just two or three lines of the relevant page.
CHAIRPERSON: Well Ms Moodley, you know ...(intervention)
MS MOODLEY: But I'm guided by the Commission.
CHAIRPERSON: Yes.
MS MOODLEY: I'm in your hands.
CHAIRPERSON: Yes, may - before I allow a member of my Committee to speak as well, you will understand that we conduct proceedings differently. We also have to draw your attention to the fact that this is a Committee which is operating under very serious time constraints so where we can permit you an indulgence to read we will but where we have indicated that there is no need for you to do so, you can be rest assured that we do so taking into account the interest of the applicants which are most paramount in our consideration of such issues. What the other panels have done in the past and continued to do has no bearing on this particular panel, we operate differently.
MS MOODLEY: As the Commission pleases. I'd like to hand in an exhibit which contextualises the situation in Wembezi at the time that this particular incident occurred and I'm going to mark that Exhibit C.
MR DE JAGER: Let's mark it Exhibit D because the affidavit by Mr Phewa wasn't wasn't given a number and I think we should refer to that as Exhibit C and then this one would be D.
MS MOODLEY: This is April '94 Monthly Report of the Human Rights Committee.
MR DE JAGER: April 1994?
MS MOODLEY: Yes.
MR MALAN: Can you just quote the page that's relevant or pages?
MS MOODLEY: Page 15, I'm only going to hand in the relevant pages, it's page 15.
MR MALAN: Shall we refer to that as D(i)?
MS MOODLEY: Yes.
CHAIRPERSON: Is that our Human Rights Commission?
MS MOODLEY: Yes it is.
CHAIRPERSON: Our Committee, our standing Committee?
MS MOODLEY: No, not yours.
CHAIRPERSON: Oh.
MR MALAN: Is that the only document?
MS MOODLEY: No there's quite a few but they're relevant and it's not intended to waste the time of the Commission.
MR MALAN: Shall we refer to the first one as D9(i)?
MS MOODLEY: D(i)
MR MALAN: Right, the next?
MS MOODLEY: The next is March 1994 Monthly Report - D(ii), it's page 17.
CHAIRPERSON: 17?
MS MOODLEY: Yes.
MR MALAN: Why don't you read them all and then hand them to us? Are these the only two documents?
MS MOODLEY: No, no.
MR MALAN: Well just read them all and with the relevant pages.
MS MOODLEY: This is on page 17 of the report that I've referred to. It talks about Wembezi and four deaths and three injuries in six incidents. The principal of Wembezi High School, Gerry Zuma, was killed when a hand grenade was thrown into his home at Depot Section, an ANC stronghold in Wembezi.
His death ...(intervention)
MR MALAN: Ms Moodley, we will really read it, if you can just refer us to the pages.
MS MOODLEY: No, because it's a couple of lines and it's finished
"His death came in the wake of violent clashes between rival gangs of pupils relating to the ANC/SACP internal conflict in Wembezi."
CHAIRPERSON: You can just go through all the exhibits that you wish to hand up without having to stand up because I think it will be quite cumbersome for you but please for our benefit you mark them because I think this one was not marked.
MS MOODLEY: So this one is D, D(ii).
CHAIRPERSON: Just mark all the pages D(ii).
MS MOODLEY: So, can I just be clear, the last exhibit you have is D(i)?
CHAIRPERSON: Just mark all those pages D(ii).
MS MOODLEY: This is report D(iii), September 1993, Monthly Repression Report. It's page 13, at the top of page 13.
CHAIRPERSON: There are a few lines to read?
MS MOODLEY: No, this is a bit much, I think I'd prefer for you to read it in your own time.
CHAIRPERSON: Yes thank you.
MS MOODLEY: But it relates to these incidents as well. There's D(iv), it's a Human Rights Report September 1995.
CHAIRPERSON: What number?
MS MOODLEY: 95, page 22 and 23, it runs over.
MR MALAN: That will be marked D(iv). Have you dealt with all of them?
MS MOODLEY: Yes I think so.
MR MALAN: May I just with your permission Chair? Exhibit D(ii), which you said was the March '95 report, page 17, in the middle of the page there's a reference to Wembezi which I guess is what you're referring us to, you read it out
"The Principal of Wembezi High School..."
MS MOODLEY: Yes?
MR MALAN: Now it does not give us an indication as to the time slot ...(intervention)
MS MOODLEY: The actual date?
MR MALAN: The time slot of this report. So do you have a copy of the previous pages which tells us what period this is covering?
MS MOODLEY: Mr Malan, I don't think it's going to be easy for me to do that right now but before the end can we then confirm and I'll let you have actual dates?
MR MALAN: I tell you why I'm asking this, this is March '95. We're talking of exactly 12 months after the incident.
MS MOODLEY: Yes and ...(intervention)
CHAIRPERSON: I think this one, some evidence was led in respect of the killing of Mr Zuma.
MR MALAN: That's why I'm asking.
CHAIRPERSON: We are familiar with the time frames. I'm not sure whether we will be in a position to be familiar with the times frames in respect of the other exhibits but with regard to Mr Zuma it's March 1995 as I recall the evidence by Mr Mngomezula.
MR MALAN: Yes.
MS MOODLEY: My intention of handing in these exhibits don't relate purely to the - it relates to the particular incident but as well as contextualising Wembezi prior to the period under issue here and subsequent so it tells you ...(intervention)
CHAIRPERSON: Yes, we would be more interested though with the period immediately prior to the incident. Are they all addressing that particular period?
MS MOODLEY: The actual incident as well that is reflected in one those monitors.
CHAIRPERSON: Yes? With regard to Annexure D(i), I am unable to state when this particular incident you have drawn ...(intervention)
MS MOODLEY: That's why I wanted to read it into the record because it's not easy to actually keep track of it but if you want to ...(intervention)
CHAIRPERSON: No, I am quite familiar with what you've already read into the record and this one is written Wembezi so it should be quite clear to all and sundry to see that this is the one that we have to focus our attention to but it doesn't give us a time frame.
MR DE JAGER: You told us D(i) relates to April 1994?
MS MOODLEY: Right.
CHAIRPERSON: Yes, where did you get that, I'm quite familiar with the time frames.
MS MOODLEY: It's on the cover of The Monitor.
CHAIRPERSON: Oh.
MR DE JAGER: And they then say for the past five months so it's say from December 1993 to April 1994.
MS MOODLEY: Yes, just before the elections.
MR DE JAGER: Yes.
MS MOODLEY: Are these all the exhibits you intend to hand up, Ms Moodley?
MS MOODLEY: Yes.
CHAIRPERSON: Thank you.
MS MOODLEY: But I would like to just make this submission in relation to the exhibits?
CHAIRPERSON: Yes.
MS MOODLEY: My job as legal representative for the applicant in an application for amnesty is to see that I attempt to satisfy the objectives in terms of Section 20 and what has already been led before this Commission might well not satisfy perfectly four square exactly the requirements but I do believe that those exhibits would supplement those aspects of the applicants, both the applicants' applications which would at first blush appear not to satisfy the granting of amnesty and the effect thereof.
It is very easy to sit before the Commission and take a magnifying glass to this particular incident and actually lose the essence of what the situation was at the time. There is an easy interpretation to convert into a criminal, a plain cold calculated criminal act and I think we would be failing in our duty if we were going to take that particular tack and accept that as being the actions of the applicants in this matter. I think that they were the foot soldiers that were acting under the command of an official within the organisation which actually led them to commit the offences that they then went on to commit.
CHAIRPERSON: May I interpose? Are you now making your submissions because I thought you were merely speaking with regard to the documents? It looks like you are now proceeding to address us?
MS MOODLEY: Yes I'm going to actually do my submissions and make my address now.
CHAIRPERSON: Well before you do that, we haven't given Ms Mtanga an opportunity to find out whether he wants to lead any evidence in respect of this application.
MS MOODLEY: But I don't know if Ms Mtanga has sight of the copies of the exhibits as well?
CHAIRPERSON: Well I mean you don't seem to be addressing us on the exhibits, you seem to be addressing us on the merits of the application?
MS MOODLEY: And the merits supported by those exhibits as they appear.
CHAIRPERSON: Yes, I think you will do so once you do your oral submissions.
MS MOODLEY: Fair enough.
CHAIRPERSON: Maybe you'll reserve what you want to say in respect of this until you make your oral submission. Does this conclude your case, you don't wish to call any further witnesses?
MS MOODLEY: I intended to call Peter Kirschoff but he is not here any more.
CHAIRPERSON: Yes, you no longer intend to call Mr Teaspoon Mkhize?
MS MOODLEY: No. Mr Bladen Nsimande I tried to call but he is not available.
CHAIRPERSON: So this concludes your testimony with regard to the applications of both applicants?
MR MALAN: Just for the record, this Mr Peter Kirschoff that you wanted to call, who was he? Which expert?
MS MOODLEY: He was actually the person responsible for, that I actually tracked down by the monthly Report Monitors, he was responsible for collating information that came through in relation to violence.
MR MALAN: What is his position, who was he?
MS MOODLEY: The Human Rights Committee referred me to him in Pietermartizburg in relation to the reports that he made.
MR MALAN: What was his occupation, what did he do for a living?
MS MOODLEY: Well he was employed by Paxa I think it was.
MR MALAN: Paxa?
MS MOODLEY: Yes.
MR MALAN: And when did he die?
MS MOODLEY: I think in last month, in August.
MR MALAN: Thank you.
CHAIRPERSON: Thank you Ms Moodley. We will now give Ms Mtanga an opportunity. Ms Mtanga, do you wish to tender any evidence on behalf of the victims in respect of the applications of both applicants?
MS MTANGA: No Chairperson, I won't be tendering any evidence.
CHAIRPERSON: Yes, is Mr Thulani Mkhize present?
MS MTANGA: Mr Phewa has indicated that he ...(intervention)
CHAIRPERSON: Sorry, Mr Phewa.
MS MTANGA: Mr Phewa, the brother to the victim here has indicated that he doesn't intend to attend the hearing but he still opposes the application on the grounds referred to in his affidavit.
CHAIRPERSON: On the grounds that the deceased was not politically active?
MS MTANGA: Yes Chairperson.
CHAIRPERSON: Thank you. That being so, Ms Moodley are you in a position to address us?
MS MOODLEY: Thank you Chairperson.
CHAIRPERSON: May I find out if Ms Mtanga will also be ready to address us?
MS MTANGA: Chairperson, I was not intending to submit any argument save to say that my instructions from the victims are to oppose the applicant, the application, but in the absence of him here and evidence to the contrary, I am unable to pursue that direction.
CHAIRPERSON: But you are in a position to give an indication of what your opinion is, taking into account the evidence that has been handed before this Committee? You should be able to do that, whether you are in support of them being granted amnesty on the facts before you?
MS MTANGA: Chairperson, my initial position was that I will leave that in the hands of the Committee. Thank you.
CHAIRPERSON: Yes you may elect to do so. You will give that indication at an appropriate stage.
MS MTANGA: Yes Chairperson, thank you.
CHAIRPERSON: Ms Moodley over to you?
MS MOODLEY IN ARGUMENT: In respect of this application I believe that the applicants satisfy the requirements in terms of Section 20 for this application to succeed and I will proceed to indicate the support for my submission.
It has been the view that this particular incident was a personal incident and it did not relate to a political objective. In regard to that opinion, I would like to submit that the Mkhize and Phewa conflict was a conflict of a political nature and that this is not just an opinion that is plucked out of the air, it is supported by information collated at the time by people who were charged to do that particular job and in this regard I refer you to the Human Rights Commission. I've already mentioned the April 1994 report which deals with the very incident under the spotlight here today.
MR MALAN: I think, Ms Moodley, I may assist you here and I'm sure I'm speaking on behalf of my colleagues too, that at no stage did we have any indication that it was a personal thing, that it was indeed in a political context.
MS MOODLEY: I'm very heartened to hear that.
MR MALAN: So that you can accept.
MS MOODLEY: Okay.
MR MALAN: Whether that qualifies the applicants to be granted amnesty is what you need to be - the nature of this political context and the nature of the act is what you need to argue but you don't have to satisfy us that it was not personal.
MS MOODLEY: But I do have to satisfy you that there was a political objective which I am now attempting to do. In the course of my instructions, confined not just to the two applicants but in the general research of work in relation to the Wembezi area, it has become apparent to me that the conditions that pertained at the time have actually been ventilated and the full picture now emerges and the full picture speaks of third force activity.
MR MALAN: Really, we have no such evidence before us by neither of the applicants.
MS MOODLEY: Yes I'm going to refer you to the particular exhibit.
MR MALAN: No, really I'm arguing that that's not before us as evidence. You had to lead evidence if you wanted to include any third force activities. Your witnesses specifically excluded it and very pertinently so, the second witness.
CHAIRPERSON: Ms Moodley, I personally would like to accommodate you as much as I can. What is, however, the relevance of the third force activity with regard to the offence committed by the applicants which you only have in your submission to show that it was an offence committed as an act associated with a political objective. What would be the relevance of even alluding to third force activity in an attempt to show us that what the applicants did, they were doing for a particular political objective? The objective of furthering the interest of the ANC, that they had a conflict as members of the ANC and supporters of that organisation with members and supporters of another political organisation being the SACP. I just want to find out what would be the import of alluding to third force activity because in my opinion I don't think it has any bearing nor relevance at all?
MS MOODLEY: Honourable Chairperson, in my discussions with the leadership that has been mentioned during the course of the evidence of the two applicants, Mr Bladen Nsimande in particular, I was advised that the so called leadership struggle between Mr Mkhize and what would appear to be Mr Phewa was something that was - there was tensions that smacked of orchestration by third force elements and the view that the organisation had been infiltrated to an extent. I stand here, I mean I'm presenting submissions today in terms of information that I have been furnished by responsible members of the organisation who were involved in particular in this particular conflict.
CHAIRPERSON: I am mindful of that but you will also appreciate as a lawyer that we have to decide the fate of these applications on the basis of the evidence led before us, we dare not go outside the parameters of what is before us. So please lets do what we have to do in a proper decorum. We have to confine ourselves to that evidence that's before us and the evidence that's before us is what was subjectively perceived by the applicants to have been the situation between Mr Phewa on the one hand as a perceived member or alleged member of the SACP and themselves as members of the ANC and the conflict that existed at the time.
MS MOODLEY: To address you on that, Chairperson, I would submit that in this particular incident, the weapons that were used were given to the applicants from within the - the members of the organisation handed firearms to the applicants and which were used in the execution of this particular brutal murder. The applicants at the time were of the view that they were defending the positions of the particular organisations that they belonged to at the time.
CHAIRPERSON: And how were they defending, what interest would have been achieved by the killing of Mr Phewa?
MS MOODLEY: They were protecting the interests of the organisation in that numbers of the organisation were being depleted, there was fragmentation, there was now factions being created and the discipline of the organisation was being undermined.
MR MALAN: Just on this argument, was the evidence not that they were doing this in the defence of Mr Mkhize that they wanted there? But at the time of the incident Mkhize had already been deposed?
MS MOODLEY: Mr Malan, Mr Mkhize today is still a disciplined member of the ANC, he is in leadership, there was never a question of - in the interest of expediency, a decision was taken at a meeting at which members of the organisation from Pietermartizburg were present where an attempt was made to deal with the situation and I want to expand on this because I think it has relevance.
MR MALAN: Ms Moodley, really, with all due respect, you can't give evidence here. I'm arguing about the evidence before us and my question is simply this, was the evidence not that they weren't trying to establish discipline but they were fighting people in support of Mr Mkhize, frankly on the evidence, against his wishes and orders after he had been removed as chairperson?
MS MOODLEY: With all due respect, Mr Malan, it's a very simplistic interpretation of the events because I'm actually giving you a full disclosure now about what happened in relation to the incidents where the two applicants were present at meetings.
MR MALAN: Ms Moodley please, with all due respect, it's not for you to disclose it at this stage. You're busy with a submission which is an argument based on the evidence before us and you can deal with that. I mean we have no doubt in our minds that there was an internal conflict within the alliance structure between basically ANC and SACP members, we have no doubt about that, that's clear before us.
MS MOODLEY: Chairperson, with all due respect, I would ask for the excise of your discretion in listening in what I need to make a submission on in relation to the particular incidents that were referred to in evidence of the meeting where Mr Gwala was called upon to attend at Wembezi to try and appease the ranks and broker peace within the disputing factions and when he left that meeting an attack was launched on Mr Gwala from neither side. He was attacked and he was ambushed and the impression, the perception that went out the community was that one of the factions were responsible for the attack on Mr Gwala. So there is here ...(intervention)
MR MALAN: Where do we have that evidence before us? Was that evidence tendered?
MS MOODLEY: Mr Malan if you read those exhibits, those exhibits are going to help you tremendously.
CHAIRPERSON: Yes, no other than the exhibits because the exhibits do not form part of the evidence before us, they have to support the evidence tendered by the applicants but there was some reference thereto by Mr Mngomezulu in either in his evidence-in-chief but I think most probably under cross-examination. But what was Mr Malan's problem was are you saying that the objective that they sought to achieve was to make sure that they instilled discipline within their structures and the killing of Phewa would have furthered that kind of discipline that they wanted to instil. That was the crux of his question.
MS MOODLEY: I don't think the organisation would have organised killing of people but there is implied - I mean if someone is hungry and if there is food he will eat it, if someone is under attack, if someone has to protect himself, he will protect himself. I'm saying that the command didn't come from the structures to say eliminate opposition, but when you are on the ground and when you are at the cold face, it's easy for us to sit in our armchairs now and debate about the particular responses of individuals but looking at the evidence holistically, I am saying there's a case to be made for an application for amnesty to succeed given the circumstances that prevailed at the time.
CHAIRPERSON: Yes and what would you say in a nutshell, what in your submission are you saying whether objectives which the applicants sought to achieve when they committed this particular act?
MS MOODLEY: They sought to protect the organisation and it's numbers. It's numbers would obviously be impacted upon if you had fragmentation, if you had dissident groups and I'm using the word dissident very, very generously because I don't really know the merits of that particular debate but I'm saying that there is a political objective. If you want to see to it that your numbers are not being depleted I would submit that that is good and sufficient political objective.
CHAIRPERSON: And would you therefore say that that was why they were opposed to anyone who did not support Mkhize who was an ANC leader and to whom the applicants saw as the right and only leader for their organisation?
MS MOODLEY: Would you repeat that question?
CHAIRPERSON: Yes, would you therefore contend that the applicants were protecting Mr Mkhize as a person they saw as the only rightful leader within the ANC, that they would have done anything to depose a person who sought to be seen as a rival of Mr Mkhize in the struggle for leadership?
MS MOODLEY: I wouldn't cut it as finely as that, I would say and this is now subjective as well, my opinion would be that they would be protecting the ANC particular structure at the time in Wembezi. I'm not individualising it to Mr Mkhize as the person in leadership.
CHAIRPERSON: Yes, the evidence however is that what really prompted them to do what they did initially was that they were in support and in defence of Mr Mkhize to an extent that they had to guard Mr Teaspoon Mkhize, that was their evidence. I think this is where the problem started, when Mr Bheki Nsimande left to form his own party and started spreading rumours about Mr Teaspoon Mkhize in an attempt to depose Mr Mkhize as the leader of the ANC. I think that's really what prompted the conflict, that's where the conflict starts, that's how I understand the evidence of Mr Mngomezulu in particular.
MS MOODLEY: I will concede that.
CHAIRPERSON: You may proceed.
MS MOODLEY: Honourable Chairperson, in respect of the full disclosure of the relevant facts, I know Mr de Jager raised the indiscrepancies in relation to the different depositions made by the applicant Thulani Madlala in relation to the non-disclosure at the initial stage.
CHAIRPERSON: It is honest disclosure as opposed to a non-disclosure.
MS MOODLEY: I think Mr Madlala has offered an explanation to this Commission which should be accepted that he was ill-informed and ill-advised at the time when he failed to speak the truth in his affidavit about the events that had occurred around this particular incident and that when he ...(intervention)
CHAIRPERSON: May I interpose? In as much as he is literate, there is no evidence that he had at the time, he was in possession of our Act, that would have explained to him what is required of him when he applied for amnesty, is that not so?
MS MOODLEY: Yes but with all due respect and I mean this in the best way that I say it, I mean I don't want it to be misinterpreted, but when a document this morning in relation to that affidavit was deposed to by the next-of-kin was only shown to the applicants this morning and they immediately when I elicited instructions in relation to the paragraph 6, they immediately said if this is the position why is the next-of-kin not here because then we would be able to actually put it to him that what he was saying in there was not so. I think at this stage both the applicants have taken the Commission into their confidence, they have made full disclosures and they would not at this point want to gainsay the fact that the deponent to the last affidavit was not telling the truth if that was not really the position. I believe, my instructions are that in relation to the allegation in the - the statement in the affidavit that the deceased was not a member of a political organisation cannot be accepted and go unchallenged. The instructions of the applicants are that ...(intervention)
MR DE JAGER: It's not their instructions, their evidence was in fact that he was partaking and he was - so it was not your instructions, we can't deal with what happened between you and your client, we're dealing with the evidence.
MS MOODLEY: No, no but that is the position that the applicants' views on that matter was that that was not so and that he was in fact a member of the organisation, this was a political offence and there were political reasons for the conduct of themselves on that particular day.
CHAIRPERSON: I thought we were however exhausting your point with regard to Mr Madlala in particular's dishonest disclosure with regard to the application, his initial form 2 application to the Amnesty Committee. Have you exhausted that point?
MS MOODLEY: Yes I have. And it's going to be my submission finally that the murder of Mpumalelo Phewa, according to the criteria in sub-section 3 is associated with a political objective and was committed by the applicant as members of the ANC in support of the ANC, bona fide in the belief and in the furtherance of a political struggle waged by the ANC.
CHAIRPERSON: And that concludes your submission?
MS MOODLEY: Unless you would like to hear me on any other issue?
CHAIRPERSON: Thank you. Ms Mtanga?
MS MTANGA: Chairperson, as I had indicated earlier on, I would like to leave this matter in your hands.
CHAIRPERSON: Thank you.
MS MTANGA: Thank you.
CHAIRPERSON: Thank you very much Ms Moodley and Ms Mtanga for the assistance you've rendered to the Committee in assisting us to reach a just and equitable decision. A lot of evidence has been led in respect of these two applications. We already have a portion which has been transcribed and because we already have a transcribed portion, we'll wait for the other one to be transcribed as well. In the premises, we are going to reserve our judgement in respect of these two applications and give an assurance that we will pronounce our decision in due course.
MS MOODLEY: Thank you.
CHAIRPERSON: Ms Moodley, you will be advised of our decision and you will then immediately communicate our decision to your clients, the applicants in these applications. This brings us to the end of our roll in Durban for this hearing. As we proceed to our different destinations we would like to express our gratitude to members of Correctional Services for the prompt delivery of applicants to our venue. I think for the first time I can proudly say that your service has been more than magnificent except for today when I believe there was a mix up with regard to notices but we thank you and hope that you continue doing the good work because this definitely facilitates us in expediting our work. As you know we are a short lived Committee.
We wish to express our enormous gratitude to the translators for a very difficult job that they seem to manage with such ease and our gratitude to the logistics officer for the organisational work, the venue and everything, we enjoyed our meals. Our gratitude to members of the media and our support staff and our gratitude as already expressed to Members of my Panel and the legal representatives concerned and to the public at large. We thank you. Bye bye.
HEARING ADJOURNS
