ON RESUMPTION
MR SEWPAL: My name is Sewpal, spelled S-E-W-P-A-L and the initial is V. I appear for the applicant.
CHAIRPERSON: Thank you Mr Sewpal. And the Leader of Evidence?
MR MAPOMA: I am Zuko Mapoma, the Evidence Leader.
CHAIRPERSON: Thank you Mr Mapoma. Yes, Mr Sewpal, is there anything you want to put on record?
MR SEWPAL: Thank you. I think it's quite clear that the applicant is bringing an application for amnesty on the basis that the offence that he committed was committed with a political motive, or political objective. I think that we have the duty to begin and in the circumstances I will call the applicant. It will possibly be necessary for me to call two witnesses as well, those were the other accused that participated in the offence who are also here today. I call the applicant.
CHAIRPERSON: Very well, Mr Sewpal.
SIBUSISO ERIC TSHABALALA: (sworn states)
CHAIRPERSON: Mr Sewpal.
MR SEWPAL: Thank you.
EXAMINATION BY MR SEWPAL: Mr Tshabalala, how old are you?
MR TSHABALALA: 35 years old.
MR SEWPAL: Where did you live during 1990?
MR TSHABALALA: Estcourt.
MR SEWPAL: Were there any political parties that were active in that area during that period?
MR TSHABALALA: Yes, there were.
MR SEWPAL: Which parties were these?
MR TSHABALALA: The IFP and the ANC.
MR SEWPAL: Were you a member or sympathiser of either of these parties?
MR TSHABALALA: I was a supporter of the ANC.
MR SEWPAL: What other political party was active in the area at the time, you said?
MR TSHABALALA: It was ANC and IFP.
MR SEWPAL: Do you recall what the relationship was between these two parties at that time?
MR TSHABALALA: There was no good relationship, there was violence.
MR SEWPAL: Were you involved in any violence with the IFP, or are you aware of anybody else that was involved in any violence with them?
MR TSHABALALA: Yes, there were.
MR SEWPAL: Sorry, I'm not sure, were you involved in violence or do you know of somebody else who was involved in violence?
MR TSHABALALA: Yes, there are people that were involved.
MR SEWPAL: Is there any particular person that you want to tell this Committee about?
MR TSHABALALA: There were people who were fighting, ANC and IFP people.
MR SEWPAL: Alright. Did you get yourself involved in the murder of the deceased in this case?
MR TSHABALALA: Yes, I was present.
MR SEWPAL: Did you participate in the killing of the deceased?
MR TSHABALALA: Yes, I did.
MR SEWPAL: Now, could you please tell us very carefully and slowly how you got yourself involved in the killing of the deceased?
MR TSHABALALA: The deceased was selling guns to the IFP. Mandla's mother was killed because of IFP, killed her using those weapons which they've bought from the deceased. We went to the farm because we were looking for the guns.
MR SEWPAL: Could you at this point tell us who is Mandla, who you mentioned just now?
MR TSHABALALA: Accused number 1, Mandla Khuzwayo, the one who is here behind me.
MR SEWPAL: What happened to his mother?
MR TSHABALALA: They killed her and they burned down the house together with her.
MR SEWPAL: Okay. Please proceed.
MR TSHABALALA: After they killed Mandla's mother, we went to the farm because we were looking for guns. When we arrived on that farm, we found a white man. He wasn't inside his house, he was near the kraal.
MR SEWPAL: Can you tell me, you said when "we" arrived, who else are you talking about?
MR TSHABALALA: Pilane Mutshiako, Mandla Tshabalala, the three of us.
MR SEWPAL: Now what did you go to this farmer's place for?
MR TSHABALALA: We were looking for guns or we wanted guns in that farm.
MR SEWPAL: And how did you plan to get these guns?
MR TSHABALALA: We planned that on our arrival there, we will catch the white man and take his guns. Our intention was not to kill him, but to take his guns from him.
MR SEWPAL: What did you want to do with those guns? Why did you want to take them away from him?
MR TSHABALALA: We needed them in our organisation. We were the ANC and we didn't have guns, but IFP had guns because the white man was providing them with those guns.
MR SEWPAL: As far as you were aware, do you know where this white man was getting his guns from?
MR TSHABALALA: I don't know where he was getting the guns but all I know is that he was a soldier.
MR SEWPAL: How do you know that he was a soldier?
MR TSHABALALA: Sometimes we will see him in soldiers uniform.
MR SEWPAL: And now did you actually see him supplying firearms to the IFP, or how do you get this knowledge?
MR TSHABALALA: I was told so by Thulane Mutshiane, my co-accused.
MR SEWPAL: Now you mentioned in your amnesty application form that
"We did see him on one occasion where he sold hand guns and rifles to Inkatha Freedom Party supporters."
Is that statement correct?
MR TSHABALALA: Yes, it is true, but he was seen by Pilane Mutshiako.
MR SEWPAL: But did you see him as well, or was it only Pilane who saw this?
MR TSHABALALA: Pilane saw him.
MR SEWPAL: Okay, so it's incorrectly recorded in the form then?
MR TSHABALALA: Yes.
MR SEWPAL: Okay, proceed.
MR TSHABALALA: We arrived in his farm. He grabbed me and he pulled me down and he stood on top of my body. Pilane Mutshiako came with an iron and hit him on his back of his head and then he fell down. As he was lying down, we started stabbing him, whilst he was lying down.
MR SEWPAL: What happened after that?
MR TSHABALALA: After we finished stabbing him, there was a dog near his body and that dog didn't want to leave.
MR SEWPAL: As far as you are aware, was the deceased still alive at this time, or not?
MR TSHABALALA: I think he was dead.
MR SEWPAL: Okay. Proceed please.
MR TSHABALALA: We cut his body and we removed his liver and we gave the dog his liver because we wanted the dog to eat that liver so that it's attention is towards the liver and not to us.
MR SEWPAL: What did you do thereafter?
MR TSHABALALA: There was a fire in his house. We took his body and we threw it in that boiler room. We saw a car approaching and that car was with police. We ran away and as I was inside the house, the police saw me and they took me from that house. I was on top of the wardrobe inside the house.
MR SEWPAL: Before the police vehicle, did you at any stage enter the house of the deceased, you or any one of the other accused with you?
MR TSHABALALA: Before the police arrived, I didn't enter his house. I only entered his house when the police approached.
MR SEWPAL: I see and did you find any firearms in his house or in the vicinity of his house?
MR TSHABALALA: No we didn't, we looked for them but we didn't.
MR SEWPAL: Okay. What happened thereafter?
MR TSHABALALA: Police came and they arrested us. We were taken to the police station.
MR SEWPAL: How do you feel about the fact that you assisted in killing this person?
MR TSHABALALA: I feel a great remorse about my actions and I would like to apologise even to the deceased and to God and the family. I know that what I've done wasn't the right thing to do. It is very sad and also I would like to apologise to the community at large.
MR SEWPAL: What would you say your motive in killing the deceased was?
MR TSHABALALA: It is because of the violence that started when IFP killed Mandla's mother and in my view, we blamed the white man because he was selling guns to the IFP.
MR SEWPAL: That is the evidence of this witness.
NO FURTHER QUESTIONS BY MR SEWPAL
CHAIRPERSON: Thank you Mr Sewpal. Mr Mapoma, any questions?
MR MAPOMA: Yes, Chairperson, thank you.
CROSS-EXAMINATION BY MR MAPOMA: Mr Tshabalala, I take it that you were not involved in the violence between the ANC and the IFP, is that correct?
MR TSHABALALA: That's correct. I only took part when I saw that it was getting worse.
ADV SANDI: Can you just explain, what did you do when you saw that violence was getting worse?
MR TSHABALALA: I don't understand your question.
ADV SANDI: Did you say you did not get involved in the violence that was taking place between the ANC and the IFP?
MR TSHABALALA: Yes.
ADV SANDI: And you only got involved when you saw that it was becoming worse?
MR TSHABALALA: Yes.
ADV SANDI: What did you do?
MR TSHABALALA: What I did is my participating in the killing of this white man.
MR MAPOMA: Thank you Sir. And I take it that you were not a member of the ANC? Is that correct?
MR TSHABALALA: It is not correct because I was.
MR MAPOMA: But when you were asked whether you were a member of the ANC you said you were a supporter, isn't it so?
MR TSHABALALA: Yes, I'm a supporter. I don't know whether it's different in English or Zulu, but what I said is ...(intervention)
MR MAPOMA: Let me help you. You were not a member of the ANC, but you were the supporter of the ANC.
MR TSHABALALA: Yes.
MR MAPOMA: You did not know the policies of the ANC did you?
MR TSHABALALA: Not every policy of the ANC.
MR MAPOMA: Were you aware that the ANC had no policy that the white man must be killed?
MR TSHABALALA: I would like the interpreter to interpret this thing for me again. I don't understand.
MR MAPOMA: Let me put it like this. The ANC had no policy that white men had to be killed. Were you aware of that?
MR TSHABALALA: No, I didn't know.
MR MAPOMA: When you went to that farm, you have said that your intention of going there was to get weapons. Do you remember that?
MR TSHABALALA: Yes, that's correct.
MR MAPOMA: And you went on to say you had no intention to kill him, do you recall that as well?
MR TSHABALALA: Yes, that's correct.
MR MAPOMA: Now, why did you kill him?
MR TSHABALALA: It is because he started fighting with me. He was killed by mistake, after we realised that he was fighting. We started killing him when we saw that he was attacking us.
MR MAPOMA: Was he armed?
MR TSHABALALA: Yes, he was. He had two iron rods in his hands.
MR MAPOMA: Are you saying he had one iron rod this side and one iron rod this side? Is that what you're saying?
MR TSHABALALA: Yes, that's what I'm saying.
MR MAPOMA: Oh and were you armed?
MR TSHABALALA: We were armed with knives.
MR MAPOMA: Who had a knife, was it you?
MR TSHABALALA: The two of us.
MR MAPOMA: Each of you had a knife, is that so?
MR TSHABALALA: Yes, that's correct.
MR MAPOMA: Were you the only two who were involved?
MR TSHABALALA: Three of us.
MR MAPOMA: And what did the third one have?
MR TSHABALALA: He had a pipe, that's the pipe he used to hit the white man.
MR MAPOMA: Is that Mutshiako?
MR TSHABALALA: Yes, it's Mutshiako.
ADV SANDI: You said he hit him on the neck with the pipe and the deceased fell down to the ground?
MR TSHABALALA: Yes, he hit him in his head.
ADV SANDI: Yes, but why did you kill him? Why did you stab him whilst he was lying on the ground, if it was not your intention to kill him? You had not gone there to kill him, you had gone there to get arms from him.
MR TSHABALALA: Yes. The reason we did so, it was because we were scared that he was going to kill us if we were going to stab him, because he was fighting us.
ADV SANDI: But was he not lying on the ground when you started stabbing him?
MR TSHABALALA: Yes, he fell down, but we were scared that he might wake up and shoot us.
ADV SANDI: He was lying on the ground and there were three of you.
MR TSHABALALA: Yes.
ADV SANDI: You were still scared of one man who was lying on the ground? He had been struck with a pipe on his head and there were three of you, you were still scared of this man, why?
MR TSHABALALA: It is because we knew that he was a man with weapons. He was a man who is always armed with guns and he was a soldier, a trained soldier, this is why we were scared of him, but our aim was not to kill him when we went there. The reason we killed him is because he was fighting.
ADV SANDI: Yes, but he didn't have a firearm when he was lying on the ground, did he? Did he have a firearm in his hand?
MR TSHABALALA: No, he didn't have a gun.
ADV BOSMAN: He was an old man and you were three strong men with knives.
MR TSHABALALA: He was strong. He was a strong man.
ADV SANDI: Sorry Mr Mapoma. Who was supplied with firearms by this man?
MR TSHABALALA: Pilane Mutshiako knows the people he gave, or he supplied the firearms to because they were neighbours to Pilane.
ADV SANDI: When you went to attack him, how long had he been supplying IFP members with firearms?
MR TSHABALALA: I wouldn't be able to say, but when I first knew about this it was in 1989, Pilane told me that in 1989.
ADV SANDI: Did you in fact search for firearms after you had killed this man?
MR TSHABALALA: We tried but then police came.
ADV SANDI: What is the answer? Did you in fact - you didn't search for these arms did you?
MR TSHABALALA: We did. We did.
ADV SANDI: Where exactly did you search for arms?
MR TSHABALALA: At first we looked for the guns in his car because his car was parked outside and we didn't find and then even inside the house, we didn't find guns and police came, then we couldn't continue with our search.
ADV SANDI: Thank you Mr Mapoma.
MR MAPOMA: I thought in your evidence in chief you said that when police arrived, you ran into the house to hide there. Didn't you say so?
MR TSHABALALA: Yes, I said so. Police came and I ran inside the house, but it was the three of us. The others went inside the house to look for guns and I was in the car searching for the guns.
MR MAPOMA: So it is only after the police arrived that you got into the house? Is it not so?
MR TSHABALALA: Yes, I only went inside when I saw the police.
MR MAPOMA: So you never searched for weapons until the police came? Is that what I get from you?
MR TSHABALALA: Just me, I didn't go inside the house before the police came, but my co-accused both of them, went inside the house before the police came.
MR MAPOMA: But you have just only said that you went to search for the weapons only when the police came.
MR TSHABALALA: I didn't say so. I said I searched for the guns inside the car, my co-accused, both of them, went inside the house to look for the guns. I only went inside the house when I saw the police approaching.
MR MAPOMA: Who searched for the guns inside the house?
MR TSHABALALA: Pilane and Mandla. Pilane Mutshiako and Mandla Tshabalala.
MR MAPOMA: Why did you not get in and search yourself?
MR TSHABALALA: At first I went to the car because the car was there and I was searching for the guns under the seats.
MR MAPOMA: That was after you had killed this man?
MR TSHABALALA: Yes, it is so.
MR MAPOMA: And that was after you had cut his body and removed his liver?
MR TSHABALALA: Yes, it is so.
MR MAPOMA: And in fact after you have already put his body into the boiler.
MR TSHABALALA: Yes, it is so.
MR MAPOMA: Then it is only after that, that you decided now to go and look for these weapons that you want?
MR TSHABALALA: Yes, it is so.
MR MAPOMA: And you did not get those weapons?
MR TSHABALALA: Yes, we didn't get them.
MR MAPOMA: I suggest that you never went there with an information that there were weapons there because there were no weapons and there was no such information at all for that matter, what do you say to that?
MR TSHABALALA: We went there to look for weapons.
MR MAPOMA: Why did you remove the liver from the body of the deceased?
MR TSHABALALA: The dog wanted to bite us and we were scared that if we had to move, the dog was going to bite us, therefore we removed his liver in order to give it to the dog and the dog did exactly what we thought because after we gave the dog the liver, it left us alone and it started eating that liver.
ADV SANDI: Is there any other reason why you removed the liver from his body?
MR TSHABALALA: No, there isn't, this was the only reason.
ADV BOSMAN: Do you know that the police found human parts in small bottles in the house? Do you know anything about that?
MR TSHABALALA: No. I don't know anything about that.
ADV BOSMAN: Didn't you hear evidence in the court where it was said that the police searched the house and they found parts of a human body in small bottles and in a bowl in the kitchen? Didn't you hear that at the hearing?
MR TSHABALALA: Yes, I did hear of such in court, but we didn't do such a thing.
ADV SANDI: Who was responsible for cutting the various part of the body?
MR TSHABALALA: Pilane Mutshiako.
ADV SANDI: Was he the only one who did that?
MR TSHABALALA: The three of us were present, but he's the one who did this, then I will say all of us did that.
ADV SANDI: Who came up with this idea that the body of the deceased should be cut in the manner we have been told?
MR TSHABALALA: No one came with this idea, it was something that just happened, we didn't discuss about this, it just happened at that moment.
ADV SANDI: Who was the first person to cut the body?
MR TSHABALALA: I don't remember very well who actually cut, but I will say all of us.
ADV SANDI: Did you cut any particular part of the body, you personally?
MR TSHABALALA: No, I didn't cut any part of his body.
ADV SANDI: What did you do when your colleagues were busy cutting the parts of the body?
MR TSHABALALA: I was present. I think I cut with them in his stomach, I only cut his stomach, but I don't remember removing any part from his body.
ADV SANDI: Did any one of you talk whilst the body was being cut?
MR TSHABALALA: No one said anything.
ADV SANDI: Is that to say that you quietly cut off the various parts of the body, no conversation whatsoever?
MR TSHABALALA: Yes, it was like that, because we didn't want to make any noise there.
ADV SANDI: Thank you.
CHAIRPERSON: Yes, Mr Mapoma, we've interrupted you, carry on.
MR MAPOMA: Thank you, Sir. What other parts of his body were cut, were removed?
MR TSHABALALA: And also his scrotum was removed.
MR MAPOMA: Which part was removed first?
MR TSHABALALA: The liver.
MR MAPOMA: And it was thrown to the dog and the dog then ran away, isn't it so?
MR TSHABALALA: Would you please repeat that for me?
MR MAPOMA: The liver was removed from the body, thrown to the dog and the dog then concentrated on the liver and left you alone?
MR TSHABALALA: Yes, also the scrotum was removed and given to the dog so that the dog could leave us alone.
MR MAPOMA: Why did you not mention the scrotum in your evidence in chief?
MR TSHABALALA: Yes, they were removed.
MR MAPOMA: Yes, but why did you not mention that in your evidence in chief?
MR TSHABALALA: I think I made a mistake because I thought I told you.
MR MAPOMA: So after removing those parts of the body, you took the body into the boiler.
MR TSHABALALA: Yes.
MR MAPOMA: For what reason?
MR TSHABALALA: So that no one discovers his body.
MR MAPOMA: And so that, just - sorry. Why did you not want his body to be discovered?
MR TSHABALALA: Because we were scared that if his body will be discovered we might be arrested.
MR MAPOMA: But does it make sense, Mr Tshabalala? The body was going to be discovered anyway, because the body was not going to be destroyed, was it?
MR TSHABALALA: Now that you are saying so, I think you're right, but at the time this is how we thought. We thought that his body may be totally destroyed into ashes.
MR MAPOMA: You must have hated this white man, isn't that so?
MR TSHABALALA: Yes, because of the situation and because of his participation in giving the IFP weapons and having IFP killing Mandla's mother, this is why we hated him.
MR MAPOMA: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Thank you Mr Mapoma. Has the Panel got any questions?
ADV BOSMAN: I have no questions, thank you.
ADV SANDI: Just one. Can I take it, from what you've said, that the deceased had been supplying weapons to the IFP for quite some time?
MR TSHABALALA: I only knew the deceased in 1989 when I came to visit Pilane and Pilane briefed me, told me that it has been a long time he's been doing this.
ADV SANDI: Yes, he told you that he had been supplying the IFP with firearms in 1989.
MR TSHABALALA: When I first met him in 1989, that's when he told me so.
ADV SANDI: Had any action been taken against him before this particular day when you went to attack him on his farm?
MR TSHABALALA: We tried to get hold of guns, but then we failed, then we decided to go to him and take his own guns. We tried.
ADV SANDI: In other words what you are saying is at the time you went to attack him at his farm, no action had been taken against him for supplying the IFP with weapons?
MR TSHABALALA: No, we didn't.
ADV SANDI: Yes, it was the first time that an action had been taken against him for supplying the IFP with arms, it was the first time. Nothing had been done about this before.
MR TSHABALALA: We wanted to go and speak to him, but then we decided not because we didn't have guns, because we were scared that he will shoot us if we go there unarmed.
ADV SANDI: Thank you. Thank you, Mr Chairman.
CHAIRPERSON: Mr Tshabalala, how long did you spend on this farm before the police arrived and arrested you hiding in or on top of the wardrobe?
MR TSHABALALA: It wasn't a long time at all, even though I may be unable to estimate in hours, but it wasn't really a long time.
CHAIRPERSON: Could it have been a day, 24 hours?
MR TSHABALALA: No, definitely not a day. It wasn't a long time.
CHAIRPERSON: That seems to be what the court found that tried you. You seemed to have spent about a day on that farm between the attack and the time that the police apprehended you eventually. You say that is not right?
MR TSHABALALA: No, it is not correct.
CHAIRPERSON: Did you find any alcohol on the farm?
MR TSHABALALA: I think I do remember Pilane holding a bottle of alcohol when the two of them went inside to search for the guns.
CHAIRPERSON: And what happened to that bottle of alcohol?
MR TSHABALALA: They drank it, both of them. Since I do not drink, I didn't.
CHAIRPERSON: Did they drink it before you cut up the body parts of the deceased?
MR TSHABALALA: It was after because the only time they went inside the house to search for the guns, it was after the deceased had been cut and I was searching the car, that's when they got hold of this bottle of alcohol.
CHAIRPERSON: You were charged, and according to the case that was presented to the court by the prosecution against you, you were charged with having severely mutilated the body of the deceased, in fact according to the summary of the case that was made against you, you were charged with having cut out the eyes, the heart, the liver, and the fat from the deceased's body and to have also severed his penis and his scrotum, was that what you were charged with having done?
MR TSHABALALA: The prosecutor said so in court, but it was a mistake because this is not exactly what we did.
CHAIRPERSON: And my colleague Adv Bosman, has already raised with you the fact that apparently some body parts were found in bottles and some other container inside the farmhouse. Do you say you know nothing about this?
MR TSHABALALA: No, I know nothing about that.
CHAIRPERSON: And according to the evidence of the police who arrived at the farm, the heart of the deceased was found lying outside the house. Do you know anything about that?
MR TSHABALALA: I didn't see anything like that at all.
CHAIRPERSON: You say that's impossible?
MR TSHABALALA: It is actually really impossible, because we didn't do such a thing.
CHAIRPERSON: The trial court also drew a conclusion that the body was mutilated and these body parts, these organs were removed from the body for the purpose of having muti.
MR SEWPAL: Perhaps I should just point out that in terms of the Appellate Division judgement, the court there felt that the court below was not justified in coming to that particular conclusion because there wasn't sufficient evidence to justify that finding.
CHAIRPERSON: Well, that is so, that is the view of the Appeal Court, but I'm talking about the situation at the trial court and I want your response on that. That's what the court that tried you, the first court that heard your case, Judge President of this Division at that stage, that's what he found. He drew the conclusion that all this happened because you were looking for muti, now do you wish to comment on that at all?
MR TSHABALALA: The truth is we didn't do that and I also don't know anything about needing organs to make muti, this is what police thought, but it was nothing like that. We don't know why they came to that conclusion.
CHAIRPERSON: Was the only thing that you did to the body, to remove the liver and the scrotum to throw to the dog so as to prevent the dog from biting you, that was all you did, if I understood you correctly. Was that right?
MR TSHABALALA: Yes, that's correct and that's the only thing we did in that body, the rest I don't know.
CHAIRPERSON: And the rest couldn't have happened, you say.
MR TSHABALALA: No, it didn't happen and it couldn't have.
CHAIRPERSON: Yes, yes thank you. Mr Sewpal, have you got any re-examination?
MR SEWPAL: I've got no re-examination.
NO RE-EXAMINATION BY MR SEWPAL
CHAIRPERSON: Thank you. Mr Tshabalala, thank you, you're excused.
WITNESS EXCUSED
MR TSHABALALA: Thank you.
CHAIRPERSON: Mr Sewpal.
MR SEWPAL: Thank you. I would like to call Mandla Richard Tshabalala.
MANDLA RICHARD TSHABALALA: (sworn states)
CHAIRPERSON: Yes Mr Sewpal.
MR SEWPAL: Thank you.
EXAMINATION BY MR SEWPAL: Mr Tshabalala, where did you live, in which area did you live during 1990?
MR TSHABALALA: Thabamhlope in Estcourt.
MR SEWPAL: Were you a member or supporter of any political organisation at that time?
MR TSHABALALA: Supporter.
MR SEWPAL: On which organisation?
MR TSHABALALA: ANC.
MR SEWPAL: Was there any other political organisation that was active in your area at that time?
MR TSHABALALA: Yes there was.
MR SEWPAL: And what was the relationship between these two organisations?
MR TSHABALALA: Conflict between the two organisations, the ANC and the IFP.
MR SEWPAL: Okay. And did you or anybody in your family ever get caught up in any conflict with either one of these parties during that time?
MR TSHABALALA: I went once in a meeting.
MR SEWPAL: Okay, what sort of problems were there between these two political organisations?
MR TSHABALALA: They were fighting, shooting each other. and most of the time the IFP was shooting the ANC.
MR SEWPAL: Okay. Were you as an ANC member or any other person that you knew, closely involved in any of this violence?
MR TSHABALALA: No.
MR SEWPAL: Okay.
ADV SANDI: I think the problem there is you put two questions together.
MR TSHABALALA: I only attended one meeting.
ADV SANDI: I was just saying you put two questions to him, you've combined them. Why not start the first part of the question, then the second part?
MR SEWPAL: I apologise for that. Did you or any person closely associated with you, get involved at any level in any of the violence with any of the political organisations?
MR TSHABALALA: No. The only time I was involved was when I attended a meeting.
MR SEWPAL: Okay. Now you were found guilty of being involved in the murder of the deceased in this case, do you agree with that?
MR TSHABALALA: Yes, I do.
MR SEWPAL: Now how did it come about that you were involved in this killing?
MR TSHABALALA: The problem only started when my mother was killed by IFP and they were also hunting me down, they wanted to kill me, therefore I went to accused no 2 in order to hide and in order to have solutions on the problem and I told him my problem and they came out with an idea that there was a white man who had guns and if we can go there, we can go and tie him up and get his guns, but when we arrived in his house, it didn't happen as planned because he saw us first and then he ran, he wanted to run inside his house. We blocked him, he couldn't get inside his house, because he was looking for his gun. We didn't want to let him inside his house because we were scared that if he did, he was going to grab his gun and start shooting at us. Accused number 2 hit him with a stick and then he fell down. We started stabbing him and then he died. We got scared after we realised that he's dead, then we decided that we should burn his body, so that they don't discover his body but then we realised that his dogs were there, that's when we started cutting his body. We cut off his liver. We gave that liver to his dogs and then the boiler was hot and we started searching his house for guns and my co-accused searched his car and we couldn't get hold of any guns. As we were there, police came and they started searching us. They asked us why we were there. We told them we were there because we wanted to buy the cattle and police started searching the house and the yard. They realised that there were blood stains and they also saw the dog and then the white man's employee came and they said they saw us getting in his house, that's how we were arrested.
MR SEWPAL: Now can you tell us what was your motive in going to the deceased's house on that day?
MR TSHABALALA: We went there looking for firearms because we knew that he was the one who was supplying IFP supporters and members with firearms.
MR SEWPAL: So would it be correct to say that if you took the firearms away from the deceased, you would effectively cut off the supply of firearms to the IFP?
MR TSHABALALA: I was trying to protect my family because I had lost so much at that time. I never took part in violence but they came and they killed my mother and they burned down my house and then knowing that that white man was supplying weapons, then I decided to go to his house to get hold of those guns, but my aim was not to kill him because he was strong and he was a soldier. I never had any intentions of killing him. All I needed from him were his guns.
MR SEWPAL: Now how did you know that the deceased was supplying firearms to the IFP?
MR TSHABALALA: I saw him twice, even though he only saw me when he died, but I saw him twice doing that. He used to come in my neighbourhood.
MR SEWPAL: Now apart from the liver, did you or any of the other accused cut up any other part of the body of the deceased and remove any parts from it?
MR TSHABALALA: It was just the liver and his scrotum. In fact when his scrotum was cut, we asked each other why would we remove that, because it's not fair and then we decided that we should burn his body. That's when we realised that this was a serious crime.
MR SEWPAL: Are you aware that the police said that they found certain human body parts in small bottles and in a bowl inside the house of the deceased? Do you know anything about those parts?
MR TSHABALALA: Yes, police said so, but I personally know that they were just saying something they don't know because police searched the house and we saw them even taking the deceased's money in front of us and some other stories, they were just putting them as if we were the ones, but we saw them doing that. Police took almost everything in his house. They actually vandalised his house. They took car parts and all of this they put down as if we took is and they were calling us monsters.
MR SEWPAL: Now after you placed the deceased's body in the boiler, what happened next?
MR TSHABALALA: We didn't even look at his body, we left his body there. We went to his car and we also went inside the house to search for the guns.
MR SEWPAL: And did you find any guns?
MR TSHABALALA: Unfortunately we didn't even find any guns. I was actually surprised because I thought that we were gong to find more guns. I couldn't even trust my friend when he told me he couldn't find guns inside the house and then I went inside the house as well and searched.
MR SEWPAL: How long after that did the police arrive?
MR TSHABALALA: More than an hour. I think it was more than an hour, it wasn't a short time, it was a long time.
MR SEWPAL: Did you also find some liquor in the deceased's house?
MR TSHABALALA: Yes, we did.
MR SEWPAL: And what did you do with it, if anything?
MR TSHABALALA: Myself and accused number 3, we drank that alcohol.
MR SEWPAL: How do you feel about the fact that you killed this person on that day?
MR TSHABALALA: I feel remorse and I would like God to forgive me and also the deceased. What happened was terrible, but later when I looked at this, I saw that this was just like death, one doesn't know when he or she is going to die, but I'm actually feeling remorse and this is why I came here, to tell this Commission. I think I actually harassed and put the deceased in terrible pain. It was better to take his guns, not to burn his body and not to kill him. I am here simply because I need forgiveness from God.
MR SEWPAL: Had your mother not been killed during 1988, do you think that you would have still been involved in this killing?
MR TSHABALALA: No, I wasn't. The reason I did this, it was because I had no shelter, I will go to accused number 3 and ask for shelter and go back home and there was no home, because my mother had been burned, the house had been burned down and I was left with no-one, no shelter, no-one. My family was gone and I was in trouble, I was in serious problems.
MR SEWPAL: I've got no further questions.
NO FURTHER QUESTIONS BY MR SEWPAL
CHAIRPERSON: Thank you Mr Sewpal. Mr Mapoma, have you got any questions?
MR MAPOMA: Yes, Sir, thank you.
CROSS-EXAMINATION BY MR MAPOMA: Mr Tshabalala, did you apply for amnesty for this incident?
MR TSHABALALA: No, initially I didn't put amnesty application, but later I did.
MR MAPOMA: What ...(intervention)
MR TSHABALALA: I am sickly. When they put amnesty applications, I was in hospital, I wasn't in prison and then later when I came back I put my application forward.
MR MAPOMA: Suppose that you received the firearms, what were you going to do with those firearms?
MR TSHABALALA: I was going to ask my co-accused to go and kill those people who attacked my home and killed my family.
MR MAPOMA: So you want to get these firearms in order to revenge the killing of your mother?
MR TSHABALALA: Yes.
MR MAPOMA: Before you cut the parts of the deceased person, where was the dog?
MR TSHABALALA: In front of the car. He had it tied there.
CHAIRPERSON: Ms Interpreter did you say it was tied there?
INTERPRETER: Yes.
CHAIRPERSON: The dog?
INTERPRETER: Yes, the dog was tied up there in front of the car.
CHAIRPERSON: Thank you.
MR MAPOMA: How far was the body from the place where the dog was?
MR TSHABALALA: Very close, like from here to the other room and the car was parked next to and the boiler ...(intervention)
MR MAPOMA: Would you point out how far the dog was from the body, just give an indication in this room.
MR TSHABALALA: Yes, I can try.
MR MAPOMA: Yes, please do.
MR TSHABALALA: From here to the other room, that light outside through that door, that light which is lit outside that door and there's a boiler there and the car there and the dog.
CHAIRPERSON: Mr Tshabalala, can't you show in that way, in that direction because we can't see behind us now, our vision is not open to where you're pointing. Can you point from where you're sitting towards the back of the hall?
MR TSHABALALA: From where I'm sitting to the corner of the room, the car is right here and the boiler is there. It's not far.
CHAIRPERSON: Is that the distance between where the dog was tied up and where the body was lying?
MR TSHABALALA: The car was parked right there. In front of the car there's a dog and then the body was closer to the boiler and then there's a dairy in the middle.
CHAIRPERSON: Now is the boiler where you are sitting, more or less, and is the car in the corner at the back there of the hall?
MR TSHABALALA: The boiler is right where the applicant is seated and the body is right next to the boiler and then the car and the dog is right at the corner of the room and we took the parts from where I'm seated and then we went to that corner and gave the dog those organs.
CHAIRPERSON: Yes, I understand. It's a sort of a distance of about 15 metres, I should imagine, that the applicant is trying to point our from where he's sitting towards the end of the hall, but we've got the idea. You say in between there was a dairy as well?
MR TSHABALALA: Yes, there's a dairy as well, next to the boiler, it has been a long time, I'm not certain about my estimations. It wasn't far from each other.
CHAIRPERSON: Yes, very well, thank you, we have a picture of what you are explaining. Sorry, Mr Mapoma, carry on.
MR MAPOMA: Thank you Sir. And how far was the dog from the car?
MR TSHABALALA: The dog was very close to the car in front of the car.
MR MAPOMA: Was it about the gentleman behind you?
MR TSHABALALA: Yes, exactly like that, the one behind me is the car and in front here, where I'm seated, that's where the dog was.
CHAIRPERSON: It's about a metre.
MR MAPOMA: And that is the car where Sibusiso Tshabalala was searching the weapons, is it so?
MR TSHABALALA: Yes.
MR MAPOMA: You say in your evidence you said after your mother was killed, you went to seek advice from your co-accused and they told you that there's a white man ...(intervention)
MR TSHABALALA: Yes.
MR MAPOMA: And then they told you that there is a white man who has got guns, do you remember that?
MR TSHABALALA: Yes, accused number 3 told me so.
MR MAPOMA: And that is how you learned of the deceased person?
MR TSHABALALA: Yes.
MR MAPOMA: Chairperson, I have no further questions, thank you.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Thank you Mr Mapoma. Has the Panel got any questions?
ADV BOSMAN: Yes, Chairperson. Mr Tshabalala, if you look on page 21 to 23 of the bundle there's a statement which it would appear you made to the TRC investigator. Do you see that? It seems as though it's your thumbprint there. Do you remember making this statement?
MR TSHABALALA: Yes.
ADV BOSMAN: Now in that statement, it states that you said the deceased was the first person who fired at the applicant when we entered the gate, is that correct, that the deceased fired first? In paragraph 2, it's typewritten on page 19.
MR TSHABALALA: No, I didn't say so.
ADV BOSMAN: And then it says, paragraph 3, that you said that no parts were removed from the body. Did you say that?
MR TSHABALALA: No, I don't think I've said so. I don't know, maybe it is because when they came I was sick, but I don't remember saying such a thing.
ADV BOSMAN: And in paragraph, it says that you said
"I learned when I was in Westville Prison that the applicant was a member of the ANC"
is that correct?
MR TSHABALALA: What I said is that I knew that he was a supporter, he didn't have a membership card of the ANC but he was a supporter.
ADV BOSMAN: So if I can just go back to paragraph 2, you said that Pilane had intended to buy cattle from the deceased.
MR TSHABALALA: I have no knowledge of this and I cannot comment on something that I don't know.
ADV BOSMAN: Thank you. Thank you Chairperson.
ADV SANDI: Your attack on the deceased when you went to raid his home on this day, did you consider that to be some for of revenge on him because he was supplying arms to the IFP?
MR TSHABALALA: No, it wasn't like that. What happened was a mistake, we were just defending ourselves because we knew that he was a person who had firearms and we were scared and also the way he was fighting us, one could tell that if he could get a chance we were going to die. He was fighting very strongly.
ADV SANDI: Before you came to this farm, did you have any intention in your mind to assault the deceased? Was this part of your plan at all?
MR TSHABALALA: No, our aim was, we were going to hold him and just tie him up and take his firearms, but it didn't happen that way because he was very strong and he was fighting and it looked like if he could have got a chance he was going to kill us, that's what caused his death.
ADV SANDI: Before you came to this farm, or let me put it this way, when you took the decision to go and attack the deceased, did you know the political affiliation of your co-accused, the other two gentlemen?
MR TSHABALALA: I knew that they were supporters, that's why I went to them and that's I was sharing ideas with them because I knew that they were supporters of the ANC.
ADV SANDI: Did you also drink the liquor on the farm?
MR TSHABALALA: Yes, I did, in fact most of my participation was after I had drunk, like putting his body in the boiler, this happened after I had drunk. When I cut his body, it was after I had taken alcohol.
ADV SANDI: Thank you. Thank you Mr Chairman.
CHAIRPERSON: Did you at any stage discuss this plan that you and your former co-accused had with ...(intervention - speaking simultaneously)
MR TSHABALALA: You mean before the incident?
CHAIRPERSON: Yes.
MR TSHABALALA: Yes, we sat down and we talked about this. We discussed about this because we had a problem. We needed firearms and that's why we chose the deceased, because we were looking for firearms.
CHAIRPERSON: Yes, but apart from discussing it amongst yourselves, did you discuss this idea, this plan with anybody other than amongst the three of you?
MR TSHABALALA: It was our secret, the three of us. We didn't reveal this to anyone and also the fact that I didn't have any shelter and these were the people who were helping me, so I asked them to help me and I told them that the people who had killed my family were after me, they wanted to kill me, therefore I went to them and we spoke among ourselves that we were going to go to that farm and take the guns and the plan didn't include murdering the deceased, but it was all about taking his guns.
CHAIRPERSON: Thank you. Have you got any re-examination Mr Sewpal?
MR SEWPAL: Sorry, no re-examination.
CHAIRPERSON: Mr Tshabalala, you're excused. Thank you.
MR TSHABALALA: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Sewpal?
MR SEWPAL: I call Pilane Thembo Mutshiako.
CHAIRPERSON: Just give us a minute.
PILANE THEMBO MUTSHIAKO: (sworn states)
EXAMINATION BY MR SEWPAL: Mr Mutshiako, where did you live during 1990?
MR MUTSHIAKO: In Estcourt.
MR SEWPAL: And do you know the previous witness Mandla Richard Tshabalala?
MR MUTSHIAKO: Yes, I do.
MR SEWPAL: Where did he live during that time?
MR MUTSHIAKO: He resided at my home.
MR SEWPAL: Were you at that stage a member or supporter of any political organisation?
MR MUTSHIAKO: I was an ANC supporter.
MR SEWPAL: Now can you tell us why the previous witness, Mandla Tshabalala was living with you?
MR MUTSHIAKO: He came to me and he was in distress that his mother had been killed by Inkatha. They had also burned down his home. That is how he came to live with us,
MR SEWPAL: Okay. And you were convicted of the murder of the deceased in this case, together with two other people. Can you please tell us how it came about that you got involved in the killing of the deceased?
MR MUTSHIAKO: When I came upon them, the deceased was on top of accused number 2. That is when I assaulted him with a pipe on the head twice. He fell off and then the other person, Mandla Tshabalala, came and also stabbed him.
MR SEWPAL: Can you tell me why you got involved in the killing of the deceased?
MR MUTSHIAKO: It was not our intention to kill him, but we were looking for firearms. On seeing that he was fighting and accused number 2 was now below him, I also saw intestines protruding, I could not tell whether they belonged to the white man or accused number 2. That was when I hit him on the head.
MR SEWPAL: What made you think that the deceased had firearms?
MR MUTSHIAKO: He usually sold the firearms to Stanley Ngombe. He would come to our area regularly.
MR SEWPAL: How do you know this?
MR MUTSHIAKO: I was once employed by Stanley because he owned a shop and his shop was burned down because of the violence.
MR SEWPAL: Now which organisation did this person Stanley belong to?
MR MUTSHIAKO: He was initially an IFP member, up until his death.
MR SEWPAL: Do you know when Mandla's mother died?
MR MUTSHIAKO: I was informed by Mandla that his mother was burned when the house was also burned down. I did not get information about other injuries that she sustained.
MR SEWPAL: Okay. Now what did you want these guns for?
MR MUTSHIAKO: We would have used them to pay revenge on the IFP member who had burned down Mandla's home.
MR SEWPAL: Okay. Now could you describe what happened when you got to the deceased's home?
MR MUTSHIAKO: When we arrived the white man ran into a dairy. He then closed all the doors, there were three of them, so each one of us stood outside a door. He tried to get out using the door at which accused number 2 was standing. He had two iron pipes in his hands and they started fighting and on our arrival, we found that the white man was on top of accused number 2 and there were intestines protruding and you could not tell whether they belonged to the white man or accused number 2. We then assaulted him twice on the head with an iron pipe and he fell off, at which time Mandla stabbed him twice.
MR SEWPAL: What happened after that?
MR MUTSHIAKO: Thereafter we looked for a key to his home and on our way, we encountered a dog that was tied next to a vehicle. We then went to his body and cut out the liver and his scrotum and the penis, which we threw, we threw the liver to the dog. The rest were just left in a container. The dog did not eat the rest because it had moved from the vehicle. We then went to the vehicle, found the key, then went into the house. Mandla and myself searched inside the house for the firearms. We didn't find guns, we just found ammunition. We then came across a bottle of alcohol which we drank up. We would go out to look outside. Accused number two was still searching in the car. We would also go out to assist him there. We then decided that we should take the body to the boiler room. We then put him there to burn him and we thought that his body would be burned to ashes.
MR SEWPAL: What would you say was your motive in going to attack the deceased?
MR MUTSHIAKO: It was the acquisition of firearms. That was all we wanted because that is what we had discussed and agreed upon. We had not intended to kill him.
MR SEWPAL: And you wanted to acquire those firearms, for what purpose?
MR MUTSHIAKO: There was an ANC chairperson in the area, Mr Stanley Ngombe, we had intended to attack that Mr Ngombe and any other IFP member who would come out supporting Mr Ngombe.
MR SEWPAL: Did you remove any other body parts from the deceased's body, apart from that which you've mentioned?
MR MUTSHIAKO: I would not be in a position to dispute or admit that because we had drunk alcohol, we were drunk by that time, so there was nothing that I could, at the time, see clearly.
MR SEWPAL: Now, you made an application for amnesty yourself, during 1996, did you not?
MR MUTSHIAKO: That's correct.
MR SEWPAL: Now there's various parts of that form which appear to have been left blank by you, are you aware of that?
MR MUTSHIAKO: Yes, I am.
MR SEWPAL: Why was that left in that fashion?
MR MUTSHIAKO: The forms were delivered to me three days after they had arrived in prison and we were told that we should return them urgently. Because I do not know English, I required somebody to assist me and we just filled in those details that we thought were important.
MR SEWPAL: And the evidence that you've given in court today, do you regard that as important?
MR MUTSHIAKO: Yes, that is what is important.
MR SEWPAL: And if you had the opportunity, would you have actually completed your form with the information that you've given today?
MR MUTSHIAKO: Yes, I would have. I would have even asked for the assistance of somebody who could help me, because there's always a fear that if you ask another inmate who understands the language, they may fill the form incorrectly deliberately so you will remain in prison.
MR SEWPAL: I've got no further questions.
NO FURTHER QUESTIONS BY MR SEWPAL
CHAIRPERSON: Thank you Mr Sewpal. Mr Mapoma, any questions?
MR MAPOMA: Chairperson, just bear with me.
CROSS-EXAMINATION BY MR MAPOMA: When you hit the deceased with a pipe, was he still in a standing position, or was he lying?
MR MUTSHIAKO: He was lying on top of my comrade and that is when I hit him twice on the head. He was pressing the other accused down.
MR MAPOMA: And where was Mandla?
MR MUTSHIAKO: He was turning the corner that he could see me as I was assaulting the person, because as I mentioned, we were standing at different doors which were not very close, so Mandla was just turning around to approach where we were. After I had assaulted him on the head, Mandla then arrived and stabbed him.
MR MAPOMA: When Eric was giving evidence you were here, isn't it so? You were inside this room.
MR MUTSHIAKO: Eric?
MR MAPOMA: Yes. Eric Tshabalala.
MR MUTSHIAKO: Yes.
MR MAPOMA: And you heard his evidence?
MR MUTSHIAKO: I did not hear all of it, but yes, I did hear bits.
MR MAPOMA: He said when you, at the stage you drank liquor, the body had already been mutilated and put into the boiler already. What do you say to that? Do you agree or disagree with him?
MR MUTSHIAKO: Yes, he was dead already but we had already cut out his body parts, but it was only after we had drunk alcohol that we took the body to the boiler room.
MR MAPOMA: His evidence was that you hit him, stabbed him, then body mutilated and put into the boiler and thereafter you searched for weapons. Do you agree with him?
MR MUTSHIAKO: I would not say I agree because most of what I did happened after I had drunk. Before that we killed him, removed the liver which we threw to the dog and the dog moved away from the vehicle. Then Eric searched the vehicle. We went to the house and we searched inside the house quickly and didn't find firearms, but just ammunition and a bottle of liquor which was next to the fridge. We drank that alcohol and we left the house and we did not finish that bottle at that time.
MR MAPOMA: Mr Mutshiako, this is very simple. I'm saying to you the evidence of Eric Tshabalala is that when you drank liquor, at the stage you drank liquor, the body was already disposed of or put into the boiler, what do you say to that? Is it correct, or not correct?
MR MUTSHIAKO: After we had put the body into the boiler room, we went back to finish off that bottle of liquor.
MR MAPOMA: Okay, is your evidence now to the effect that because of the drunkenness you might have mutilated other parts of the body of the deceased person?
MR MUTSHIAKO: Well, the police said there were other body parts that were found, so I cannot dispute that because I was already drunk by that time so it is not easy for me to deny that I did do such an act because after drinking, you do not know what you do. Even drinking that alcohol was just to get some courage.
MR MAPOMA: So you know at what stage the police arrived?
MR MUTSHIAKO: They arrived at about 6 in the morning.
MR MAPOMA: And you saw what they did when they arrived?
MR MUTSHIAKO: We were in the vehicle at the time and they pointed their firearms at us, so we froze there. It was myself and Mandla at the time. By that time I was wearing some overall because my clothes were bloodied so I had tried to wash them with water. Mr Tshabalala was inside the house at the time.
MR MAPOMA: What were you doing in the car?
MR MUTSHIAKO: There was a hole behind the seat so Mandla was retrieving ammunition from that hole and after that he also discovered a bag inside that hole that was full of ammunition. The police confiscated all of that and some vehicle parts.
MR MAPOMA: So you recall, you have got a good recollection of what was happening at the stage when the police arrived but at the same time you have no recollection of what was happening when the body was being mutilated because you claim to have been drunk at that stage. How do you explain this?
MR MUTSHIAKO: There is a lot that I do not recall. What I recall is the removing of the liver and the scrotum. Other things I cannot remember because I was already drunk because it was spirits.
MR MAPOMA: Thank you. Thank you Mr Mutshiako.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Thank you Mr Mapoma. When you arrived on the farm the first time, was there still light? Was it during the day, in other words?
MR MUTSHIAKO: It was at dawn, about 4.00 a.m.
CHAIRPERSON: Are there any other questions from the Panel?
ADV BOSMAN: I've got no questions.
ADV SANDI: Sorry, just one thing. What kind of liquor was this?
MR MUTSHIAKO: It was colourless and it was a bottle as the applicant indicated.
ADV SANDI: Do you remember if any one of you suggested that there should be a mutilation of the body? How did it happen?
MR MUTSHIAKO: It is not easy to recall who came up with that opinion, because he was already injured, his intestines and liver were already exposed.
CHAIRPERSON: Please, can you switch that cell phone off, or if you want to switch it on, just don't come back in here. Sorry, carry on.
MR MUTSHIAKO: We then decided that we should remove the liver because we could not otherwise remove the dog from the vehicle. At that time we were still sober. We did this and we threw it to the dog and that dog moved away. We also cut out the scrotum and the penis. This was to ensure that if the dog returned we would throw that to it as well, so that we could go to the vehicle.
ADV SANDI: Sorry, just explain this. The dog moved away to where? Where did it go?
MR MUTSHIAKO: I think it moved further away to a distance where the arrow is. The vehicle was about where I'm seated and it moved from there to that red arrow on the wall, that was when we were able to move closer to the vehicle.
ADV SANDI: How many dogs did he have there? Was it a dog or dogs?
MR MUTSHIAKO: Just one dog. It was a big dog.
ADV SANDI: It was barking at you, wasn't it?
MR MUTSHIAKO: It just made a noise, it's just like the applicant is demonstrating, but it didn't bark.
ADV SANDI: Thank you. Thank you Mr Chairman.
CHAIRPERSON: Was this dog tied up? Your fellow perpetrators say that the dog was tied up.
MR MUTSHIAKO: Yes, there was a rope and it used that same rope to run down.
CHAIRPERSON: Yes. Mr Sewpal, any re-examination?
MR SEWPAL: No re-examination.
NO FURTHER QUESTIONS BY MR SEWPAL
CHAIRPERSON: Mr Mutshiako, you're excused, thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Sewpal, is that the case?
MR SEWPAL: That is the case.
CHAIRPERSON: Mr Mapoma.
MR MAPOMA: I have no further evidence to tender Chairperson. I think Chairperson at this stage I must point out that our investigations have unfortunately drawn a complete blank in tracing the next of kin or relatives of the deceased person, that is Arthur Duncan Johnston who was killed there.
CHAIRPERSON: Thank you Mr Mapoma, we have noted that. Mr Sewpal have you got any submissions on the merits of the application?
MR SEWPAL: Thank you Mr Chairman.
MR SEWPAL IN ARGUMENT: I have to concede that this was a gruesome and horrible killing of a human being, but I submit that all of that was taken into account in the High Court as well as in the Appeal Court, when Goldstone J, confirmed the death sentence in this matter. However, without trying to get away from the gruesomeness of the offence, one has to take into account the fact that the applicant and his witnesses stated throughout the hearing, they in fact believed that the deceased in this matter was supplying arms to members of the IFP, that there were problems with the IFP at the time and that the second witness actually lost his mother as a result of the violence of the IFP and I submit that there is nothing basically to contradict what
they say in that regard, that this offence was basically politically motivated, arising from those issues. I know that there could be other criticisms directed at them with regard to detail of exactly what happened and so on, but I would ask you to take into account that this offence actually took place 9 years ago and one would expect to find that sort of discrepancy. In those circumstances, I would submit, or my instructions are to submit that the application should in fact be granted.
CHAIRPERSON: Thank you Mr Sewpal. Mr Mapoma, have you got any submissions?
MR MAPOMA IN ARGUMENT: Chairperson apart from the fact that the act itself is so gruesome, there doesn't seem to be any political objective which was intended by killing the deceased person in this matter. The applicants throughout are saying that their political objective by launching that attack, by going to raid, was to get weapons and in that process they went out of their way to kill the deceased person.
Chairperson it is quite inconceivable that three young men, armed with knives, could be overpowered by an 64 year old man, one 64 year old man, to the extent that he had to be killed. Interestingly, not only was he killed, his body parts were mutilated. The evidence as it is, the explanation that has been given by the applicants as to why the body was mutilated, is not satisfactory, Chairperson, that is my submission.
ADV SANDI: I thought one or two of them says at some stage there was a struggle between the deceased and one of them and they saw some intestines and they were not sure whose intestines those were and I thought the witness concerned went on to say he thought this was the intestines of his colleague and they attacked the deceased, they started stabbing the deceased.
MR MAPOMA: Even on that version, Chairperson, there is some inconsistency because the applicant's version was such that the deceased was hit with a pipe and fell down and when he was down, then he was stabbed. That is the version of the applicant and the applicant is the most crucial witness at this hearing because he's the man who applies for amnesty, he's the person who bears a responsibility to convince the Committee that he's making as a complete a disclosure and candidly as possible, so I submit Chair, that the testimony of the applicant bears much more weight than that of the other persons who have testified.
ADV SANDI: We cannot ignore evidence that has been led, be it an applicant, a co-applicant or just a witness in support of the application of the applicant, but maybe that's beside the point. Did they have an order to do this? Isn't that required in terms of the Act? What is an act associated with a political objective in terms of the Act?
MR MAPOMA: Yes, before I deal with that Chair, I just want to respond to the point which is beside the point. I do not submit that the evidence of others ought not to be taken into account, but all I'm saying is that there are serious contradictions from the applicant's case as to the reason why this man was killed.
Now coming to the political objective, we now know that none of the applicants was ever involved in the conflict that was taking place between the IFP and the ANC there and for that matter, none of them was a member of the ANC. They may have been supporters, the point is that the policies of the ANC were not followed and the action as it is had nothing to do with the policies of the ANC, it just was not an action which was intended to further the aims of the struggle waged by the ANC, in whatever manner as it is and on that basis and that basis Chairperson only, the application should be dismissed. There are some other issues as well which I may take up, but I can only do so if the Committee may require me to at this stage Chairperson.
CHAIRPERSON: Yes, thank you Mr Mapoma. Mr Sewpal have you got any further submissions?
MR SEWPAL IN REPLY: Perhaps I should just add one more factor that should perhaps be taken into account and that is that, I think it was the second witness who made the point that not only were they trying to get these arms in order to arm themselves to attack members of the IFP. The simple removal of those arms from the deceased could have meant that Inkatha's
supply could have been cut off and I think that could also have been taken into account in regards to a political motive.
ADV SANDI: Yes, but was it not the evidence here that the deceased was believed to be supplying the IFP with arms for quite a long time and no action had been taken against him.
MR SEWPAL: No action had been taken until this incident. Of course there is no real explanation for why it took so long for them to act because the second witness' mother died sometime in 1988, that was conceded, so I concede that there was a long period of time between those two things happening.
ADV SANDI: If it is true that the deceased was in fact supplying arms to the IFP, then this must have been a very serious problem, not so? He must have been causing a lot of problems for the ANC people in that area.
MR SEWPAL: I submit that that would have been so, but I think the way in which this case has been pitched, neither the applicant nor the witnesses that he called were any high profile people in the ANC, they were simply ANC sympathisers and perhaps they would have thought that more important people would take action in this sort of matter. I can only speculate on that but if one has to try to find some justification for why it took so long.
ADV BOSMAN: ...not to have expected them to at least have consulted with the ANC, if it was their purpose to cut off arms being supplied to the IFP.
MR SEWPAL: I have to concede that is perhaps a weakness in my case.
CHAIRPERSON: Yes, but you're submitting that that is just another factor, your case is pitched on the basis that they went to acquire arms and it's a secondary consideration, that's not the thrust of your case.
MR SEWPAL: No, it isn't.
ADV SANDI: My understanding of the evidence is that they did not belong to any formal political structure, did they?
MR SEWPAL: There was no evidence to that effect. I concede that. They pitched their case on the basis that they were sympathisers of the ANC. They didn't say that they were members as such.
ADV SANDI: Would one be able to say, I mean looking at the requirements of the Act, would one be able to say they were carrying out a political order?
MR SEWPAL: There was no order given by anybody.
ADV SANDI: One of them says, Mr Mutshiako he says there were no order but just our own initiatives.
MR SEWPAL: Sorry, you referred to me page 13 of the bundle. Yes, this was a decision that seemed to have been taken by them jointly, without any other person being involved in it, that I have to concede.
ADV SANDI: My understanding of the Act here is that it is envisaged that the person applying for amnesty must have been carrying out orders from his organisation and not someone who is just on a frolic of his own.
MR SEWPAL: I can't pitch this case at any higher level than it has been brought actually, I am limited by the evidence that we have, so I can't really take the matter much further.
CHAIRPERSON: Thank you. Thank you Mr Sewpal.
Yes, that concludes the formal hearing of this application. The Panel will consider the matter and will formulate a decision in this matter as soon as we can, given the other demands that we have to contend with. Once the decision is available we will endeavour to ensure that all of the interested parties are apprised of the decision in the matter. Under those circumstances the decision will be reserved and we want to express our ...
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