CHAIRPERSON: Yes Mr Alberts, are we ready to begin?
MR ALBERTS: Yes Mr Chairman I will then call the second applicant Mr Ndlovu.
CHAIRPERSON: Mr Ndlovu are you prepared to take the oath, give evidence under oath?
NKANYISO WILFRED NDLOVU: (sworn states)
CHAIRPERSON: You may sit down. What are your full names?
MR NDLOVU: Nkanyiso Wilfred Ndlovu.
CHAIRPERSON: How do you spell that first name?
MR NDLOVU: N-K-A-N-Y-I-S-O.
EXAMINATION BY MR ALBERTS: Mr Ndlovu, how old are you?
MR NDLOVU: I am 27 years old.
MR ALBERTS: And where were you born?
MR NDLOVU: In Camperdown.
MR ALBERTS: Where is that?
MR NDLOVU: In the rural area in Pietermaritzburg.
MR ALBERTS: And where did you grow up?
MR NDLOVU: I grew up there.
MR ALBERTS: Is that a rural area or is it a suburb?
MR NDLOVU: It is a rural area.
MR ALBERTS: And when you grew up were you brought up in a western way or more in a Zulu traditional way?
MR NDLOVU: I grew up in a rural set up. When I grew up, we used to look after the cattle and play the games of fighting sticks. The manner in which I grew up even taught me that my friends is independent upon me as much as I depend on him. So, if he is attacked ...[intervention]
MR ALBERTS: Mr Ndlovu, did you also practise the Zulu ceremonies, slaughtering animals for your ancestors etc.?
MR NDLOVU: Yes.
MR ALBERTS: And you were an IFP member as well, is that correct?
MR NDLOVU: Yes.
MR ALBERTS: How did you come to join the IFP?
MR NDLOVU: In the area where I grew up all the people were IFP members. I then became fond of the IFP and I then joined it. I followed all the policies of the IFP.
MR ALBERTS: Why did you like the IFP?
MR NDLOVU: Firstly, it abides by the Zulu values and the culture of the Zulus. It likes all the traditional ways of the Zulus and that is what we were following even at my house. I then liked it.
MR ALBERTS: You are currently serving a sentence for ten counts of murder and other counts of attempted murder and the possession of firearms committed on the 5 March 1993, is that correct?
MR NDLOVU: Yes, that is true.
MR ALBERTS: And you committed these offences together with the first applicant Mr Dladla?
MR NDLOVU: No, only Mabhungu. The only person who has already testified and was with me on that day was Mabhungu. A third person is not here.
CHAIRPERSON: What was the name that you mentioned?
MR NDLOVU: Mabhungu Absolon Dladla.
MR ALBERTS: Mr Dladla yesterday gave evidence regarding a third person that was involved in the shooting.
MR NDLOVU: That is true.
MR ALBERTS: Who is that third person?
MR NDLOVU: He is late Siphiwe Zondi.
MR ALBERTS: You heard the testimony of Mr Dladla yesterday, is that right?
MR NDLOVU: Yes, I did.
MR ALBERTS: And what he told us, is that correct?
MR NDLOVU: Yes, that is true.
MR CHAIRPERSON: Perhaps your question should be a little more specific. What he told us about the commission of the offence and matters relating to that, do you confirm his evidence in that regard?
MR NDLOVU: There are some other things that I cannot confirm because I was not present when those things happened.
MR ALBERTS: The shooting at that mini bus and the killing of the people, were you present at that time?
MR NDLOVU: I was present.
MR ALBERTS: And as far as the aspects where you were mentioned by Mr Dladla, his testimony in that regard, correct and the truth?
MR NDLOVU: Yes, but I want to put my own version.
CHAIRPERSON: Yes, tell us your role?
MR NDLOVU: In Nkanyezini where I was now staying, because my family had to leave eMboni where we used to stay because of the violence, violence erupted also there. I was already a grown up when we arrived at this place because I was already attending school. I realised after some time that there were people who were now disgruntled and did not want to support the IFP and longer. The secretary of the IFP, Mr Shelembe then died. Before he died, Mr Mkhize's kombi, the one who gave evidence yesterday, was seen driving past there. I ignored that...
CHAIRPERSON: I think you should confine yourself to what you saw and what your experience was rather than tell us what others told you, please. I think that the general background of the conflict in the area generally between people who were in the IFP and those who were against the IFP we have heard evidence about that generally, you understand. I think that counsel is trying to get information from you about what happened on the day when the passengers in this kombi were shot at. How did it come about that you were involved in that incident?
MR NDLOVU: On the 4th, Thursday 1993, I was sitting at a shop, having a rest when Mr Makhekhe's car stopped there.
CHAIRPERSON: Whilst you were just sitting where?
MR NDLOVU: It was at Ngidi's shop.
CHAIRPERSON: Carry on.
MR NDLOVU: A white car, belonging to Makhekhe then came there. makhekhe was with Mabhungu Dladla in this car. We belonged to the same party, and they said that they were looking for me because they wanted to talk to me. Makhekhe then asked me to get into the car and we then drove off. Makhekhe then told me that they were planning a revenge for what happened to the children. He also told me that they were now suffering in eMboni. They told me that they were no longer free.
CHAIRPERSON: Yes.
MR NDLOVU: Yes, I heard that children had been shot.
CHAIRPERSON: Talk slowly because what you are saying, we want to try and make notes of what you’re saying, so they told you that they want to avenge the killing of school children that had taken place, is that what you've said?
MR NDLOVU: Yes.
CHAIRPERSON: Yes, but that conflict had been there before the children had been shot, isn't it?
MR NDLOVU: They told me that they wanted to attack Thembinkosi Mkhize's kombi because it is known that this is the kombi that was used to attack IFP members. I felt very determined when I heard that because he also tried to kill me and I survived. Another person who was with me in that taxi was killed by them.
CHAIRPERSON: Yes, now well let’s talk about, they told you that children had been shot. Until they told you, did you know that some children had been shot?
MR NDLOVU: Yes, I heard that through the radio.
CHAIRPERSON: So now they tell you that they want to avenge that killing?
MR NDLOVU: Yes.
CHAIRPERSON: Now tell us what happened then?
MR NDLOVU: They told me that they wanted to avenge and attack Nofo's kombi because it was known as the kombi that was carrying people who were attacking IFP members.
CHAIRPERSON: Which very same kombi?
MR NDLOVU: Ja, it is the kombi belonging to one Nofo.
CHAIRPERSON: When was this attack that you survived?
MR NDLOVU: I think it was in August 1992.
MR ALBERTS: At the time, did you see the kombi or did you just suspect that that kombi was involved?
MR NDLOVU: I saw it with my very own eyes. I also saw three people alighting from that kombi. It was not very far.
MR ALBERTS: And who was the driver of that kombi at the time?
MR NDLOVU: It was far. I think it was between 500 to 700 metres from me. I therefore could not see who were the people in the taxi. I could only see that three people alighted.
CHAIRPERSON: You’re talking about the attack on you at this stage, when you were attacked in August 1992, is that what you’re talking about?
MR NDLOVU: Yes.
MR ALBERTS: What happened on that day in August 1992?
MR NDLOVU: We were five, walking together. One of us was injured, also by being attacked by the ANC supporters. I was also with him on that day when he was shot and got injured. As he was limping, we walked faster than him and he was therefore left behind. When we reached a place where there were bushes we decided to wait for them and as we were waiting there, we observed a car that was driven not on a used road, but on the disused one. At that time, this disused road was only used by pedestrians. This surprised me and I even commented about this to a person who was next to me. It then stopped near the river, where three people alighted. I thought these people were going to fetch water. After about thirty minutes after we saw this car, shots were fired. I could not make out whether these shots came from far or where. When I looked to the direction where we were coming from, I saw a person carrying a firearm and shooting towards us. I do not know what happened to the person who was with me. I ran away.
MR ALBERTS: And one of your companions died during that attack, is that correct?
MR NDLOVU: The person who died is not the one who was with me at that time.
MR ALBERTS: And when Mokeke told you that they want to avenge the attack of the children and you talked about the kombi, what did you say to him?
MR NDLOVU: Makhekhe told me that he wanted that kombi to be attacked, because it was known as the kombi that carried people who were attacking us, the IFP supporters.
MR ALBERTS: And what was your response?
MR NDLOVU: I felt bitter because this kombi was seen driving past when Shelembe was killed. I also saw it the day we were attacked. I was therefore easily influenced when Makhekhe told me that he wanted this kombi to be attacked and wanted me to be present so that I could be of assistance.
MR ALBERTS: And did you give Mokeke the information you gave us regarding the kombi?
MR NDLOVU: I did not mention it because this was widely known by the IFP and the ANC supporters in Nkanyezini. Everybody knew about these incidents.
MR ALBERTS: Regarding the kombi being involved in attacks, did you volunteer that information to Mokeke and Mr Dladla?
MR NDLOVU: Yes.
MR ALBERTS: And did the planning of the attack and did the attack take place as Mr Dladla testified yesterday?
MR NDLOVU: No.
MR ALBERTS: Is there anything that you feel you should add regarding how the attack happened as far as your involvement is concerned, to what Mr Dladla has already testified?
MR NDLOVU: No, there is nothing I can say.
CHAIRPERSON: First of all, do you confirm how you came into possession of firearms on that occasion?
MR NDLOVU: Yes, they were given to us by Makhekhe.
CHAIRPERSON: Yes.
MR ALBERTS: Anything you want to add regarding the attack as such?
MR NDLOVU: After attacks on us, the kombi would then be driven to Lion Park, where the attackers would then hide.
MR ALBERTS: After this attack, what did you do? Mr Dladla said that the firearms were left with you. What did you do then?
MR NDLOVU: The firearms were left with me. I then hid them.
MR ALBERTS: Yes, and what did you do with the guns?
MR NDLOVU: After crushing these people and the firearms were left with me, I took the AK 47 and the R1, and wrapped them in the overall I was wearing when attacked these people. This is after the attack. I took the shotgun with me to Ntombela's house where I was spending my nights because I had run away from home. I am related to the Ntombelas.
MR ALBERTS: Yes, and what did you do with the firearms?
MR NDLOVU: I hid the AK 47 and the R1 in the bushes nearby. I concealed the shotgun in the room I was sleeping in. Because this Ntombela house was also not a safe place, because it was once attacked, I knew...
CHAIRPERSON: I thought you were talking about what happened after the attack, isn’t that what your question was?
MR ALBERTS: Yes, that’s correct Mr Chairman.
MR NDLOVU: Yes, I am telling you about what transpired after the attack. I took the firearms that were left by my friends and I put the R1 rifle and the AK47 together, I wrapped them together and went to conceal them. I then took the shotgun with me to where I spending my nights.
CHAIRPERSON: What did you do with the R1 and AK after wrapping them in overalls?
MR NDLOVU: I hid them in the bushes near my house.
CHAIRPERSON: What guns did you keep? Apart from the AK and the R1, what guns did you keep?
MR NDLOVU: I only kept the shotgun that I took with me to Ntombela's house.
CHAIRPERSON: Yes, carry on.
MR ALBERTS: How did you think this attack on this mini bus was going to help the cause of the IFP in that area?
MR NDLOVU: Our aim was to kill and threaten these people who were killed the IFP members. We could not go and get instructions from our leaders before we did something because our leaders were also threatened when they visited our area.
CHAIRPERSON: How would you know that the people in that kombi would be the ones that killed the children?
MR NDLOVU: These people live in our area and they were using the kombi.
CHAIRPERSON: But there were lots of other people in that area who used that kombi as well?
MR NDLOVU: What I am saying is that chances were very slim that we could get people we did not want to attack.
CHAIRPERSON: Just let it be clear in your mind. First of all you don’t know who were the people that killed the children, you don’t know who did it, you believed they were members of the ANC. When you decided to attack the bus or the kombi you would not have known the people in the kombi were the same people that killed the children, is that correct?
MR NDLOVU: Yes.
CHAIRPERSON: Will you please interpret to him properly? You did not know the identity of the people that killed the children?
MR NDLOVU: Yes, I did not.
CHAIRPERSON: How would you know then that the time you were going to attack this kombi it would have the people that killed the children?
MR NDLOVU: I regard everything that happened in Nkanyezini, including the incident where children were killed, as the work of the ANC supporters. It does not matter who, individual, has done it. It is wholly done by the ANC. We, the IFP were hurt when children were killed. All of us who belonged to the IFP. It then had to hurt the ANC leadership too, so that they could come and tell their supporters to stop doing this. Furthermore, Mr Gwala, who was the leader then before he died, also encouraged ANC to kill us. He would have felt something then, if his supporters were killed.
CHAIRPERSON: Yes, carry on.
MR ALBERTS: How did you believe that the killing of ANC people would help the cause of the IFP?
MR NDLOVU: Firstly, I want to tell the Commission that the IFP members in the area were no longer as free as they used to be, before the ANC came into the area. Secondly, there is another area known as Ndweba that is adjacent to iNkanyezini. These areas are separated be the river. The IFP supporters in Nkanyezini were killed extensively in such a way that one family, that was a very strong pro-IFP supporter was shot at and their houses burnt until they decided to leave the area. I therefore want to make it clear that the IFP supporters in the area were no longer safe because whenever it is rumoured that one is the IFP member, one would be killed. Our killing of the AnC supporters to realise that they were not the only people in the area.
CHAIRPERSON: Can I just interrupt you and say that from what you tell me, is it correct that, just as there were attacks by ANC people on IFP, there were numerous attacks by IFP people on the ANC?
MR NDLOVU: I would not say so because there was never a known incident in Nkanyezini, where an ANC member was killed. Attacks on ANC members by the IFP was only happening In Maqongqo.
MR ALBERTS: You stated that you wanted the IFP to grow because of this killing. How would the killing of these people in the mini bus help the IFP to grow, that is what I am trying to get at?
MR NDLOVU: We wanted to make people who know themselves to be IFP supporters, not to be shy or afraid to be known as such, because of fear of being killed. The killing was going to show the ANC supporters that they were not the only people who could kill. IFP supporters could also kill. This would then stop them from killing us. They would know that if they attack us, we would avenge that attack.
MR ALBERTS: Mr Ndlovu did you hold any position in the IFP or were you just an ordinary card carrying member?
MR NDLOVU: I was just a card-carrying member.
MR ALBERTS: And how do you feel now about this killing of ten people which you were involved in?
MR NDLOVU: I feel very very bad. I do not even know what to say to my people. These people were just captives in the car, who could not help themselves or run away. I also feel pity for this woman who is in the wheelchair today, because I know her before she was injured. I know how beautiful she was. I realised now how bad it is for such a young person not to be able to walk on her own. I also hope that God forgave all those who died for what they were doing while they were still alive. I am very sorry to everybody and I do not know how I can show how sorry I am. Even if these people who were attacked were the ones we were looking for, it would have been the same case. As we are in prison, we were visited by the leadership of the IFP, and were told how inhumane it was not to respect other peoples lives. It then dawned on me that that even if we got the people we were looking for, I would have felt bad now because those people were also black people like me. They were not supposed to have died, whether they were IFP or ANC members. These parties can both exist without any problems.
MR ALBERTS: Thank you Mr Chairman. Nothing further.
NO FURTHER QUESTIONS BY MR ALBERTS
CHAIRMAN: Any cross examination Mr Wills?
CROSS-EXAMINATION BY MR WILLS: Yes, thank you Mr Chairperson. Mr Ndlovu, I want to refer you to your Amnesty application, Section 11(a), Page 22 of the Record. I’m assuming that you did indeed fill this document out, perhaps I should just ask you if this represents a copy of your handwriting?
MR ALBERTS: Mr Chairman I think this is just an English translation. His application was filled in in Zulu and it’s a bit more to the front of this.
MR WILLS: Yes, thank you for pointing that out. Possibly I might ask and it will be interpreted to you. In answer to the question in Section 11(a), was your act committed in the execution of an order or with the approval of an organisation, institution or body and you say, and I quote the English,
"Nobody ordered me, but I did it as an act of vengeance."
MR NDLOVU: That is true.
MR WILLS: Thank you. Now, it’s clear therefore as I believe the evidence of the first applicant was, was that there in your evidence was no order whatsoever from any other person in regard to this attack. Is that correct?
MR NDLOVU: As far as I know, if you say that I must go and get that cup, you will be sending me to do that. But if you say, let us go and do this, you are not sending me because both of us will perform that act. Nobody therefore sent me to do something. The only person was the one who said we must go and do something, together.
MR WILLS: Yes, rather let me ask you a different question. If and I’m not suggesting this is the case, it’s a hypothetical question. If you were asked by someone who was more senior to you in the IFP to do something, would you obey that instruction?
MR NDLOVU: When I joined the IFP, I did not do that because I liked a certain leader or a person. I did this because I liked the policy of the party. Nobody, even the president of the IFP can say that is contrary to the policies of the party. I knew then, that it was against party policy to kill people, therefore nobody from the party would have told me to do so. I did not have a commander to give me instructions. I was not trained.
CHAIRPERSON: I think there’s no purpose asking him a hypothetical question, you are going to get a hypothetical answer.
MR WILLS: As you please Mr Chairperson, I’ll get more to the point. Mr Ndlovu, what concerns me is it appears after having read the Record of the Judgment in your trial and also having had sight of the Appeal Court Judgment in your matter where your appeal was dismissed, that in fact the orders that did come from IFP leaders after the killing of the six children were exactly not for Inkatha members to take revenge for the killing of the six children. Are you aware of that?
MR NDLOVU: That is true. The leader of the IFP in the Midlands did announce that in the media that we should not avenge the killings. This was also reiterated by the leader for the IFP in Mboyi that IFP supporters should stay calm. As I say, this is what I decided on my own free will after I was asked to join in this by my friends. I am also a human being who can be hurt, and who knows what to do if he feels that his life and that of the people around him was not safe. There is nothing I could do.
MR WILLS: So, it’s clear, or it seems to me therefore that you knowingly broke the policy of the IFP specifically in relation to the killing of the children, is that correct?
MR NDLOVU: Yes. I want to ask all the IFP structure to forgive me in this because it was against the IFP policy. This is against the party policy, but we had to do it so that the party could grow. I believe in doing something that you feel is helpful at the time and that is how I felt at that time.
MR WILLS: I put it to you, that you could not have been doing it for your organisation. If your very organisation from the leaders in your area and to that extent I refer to Mr Bernard Mkhize had told you specifically not to take revenge?
MR NDLOVU: I deny that. I felt this is what I had to do for the party. I was not going to drink these people's blood, nor was I going to eat them after they had died. I was not going to gain anything.
MR CHAIRPERSON: I think the question really was that you did this to satisfy your own anger and not to satisfy the policy of your organisation? What do you say to that?
MR NDLOVU: I cannot say I was doing this for gain. I am the IFP member...
CHAIRPERSON: I’m not talking about gain. I said you were doing it to satisfy your own anger, not gain, do you understand? You did it to satisfy your own anger and not because it was going to gain your organisation anything when they had already decided that it would be wrong to take revenge.
MR NDLOVU: Where did that anger come from?
CHAIRPERSON: No just answer whether there, you see there’s no doubt about the anger, so you don’t have to ask where it came from, just answer the question. You did what you did because of your personal anger, you see, that was the main reason why you did it, despite the fact that your leader said you should not take revenge.
You see I understand your answer because you did tell us that, "I did this on my own volition. This was done on my own volition." I understand that, the question now is that you were driven by your personal anger that led you to do it and not the interest of your party? That’s the purpose of the question.
MR NDLOVU: I had an anger within me, yes. I was angered because were being killed as IFP members. I was also a victim of attacks but fortunately I was not injured. I am not boasting about this. What I am saying is that I got angered because of the attacks on us. The IFP as such, however, cannot get angry but because it is made of us, the people, we get angry as individuals about what is happening to us. Many people were angry but perhaps they did not get a chance to avenge their anger.
MR WILLS: Mr Ndlovu I want to turn to another aspect of this incident which causes me great concern. I refer the Committee to the finding of the Trial Court at Page 60 and effectively what the Judge found, he found as a fact that they and by they, the Judge refers to you and your co-accused, the first applicant in this matter, that you did not believe that the people in the kombi were in fact ANC supporters. Can you comment on that?
MR NDLOVU: What did the Judge say? (Laughter)
CHAIRPERSON: I think to quote the exact words of the Judgment, let that be translated to him, this is Page 60, lines 3 to 5.
MR WILLS: Yes, if I could bear with the Committee, I think that I’d like to read from the bottom of Page 282 and complete the sentence.
"As the passengers were being transported in Mkhize’s mini bus to Inkanyzine, the accused had no reason to think that they might be ANC supporters."
MR NDLOVU: That is what was said by the judge.
MR WILLS: The Judge went further and I quote;
"We find as a fact that they did not believe that they were."
MR NDLOVU: No, the judge was mistaken there. We are the IFP members and we could not have killed anybody who is not an ANC supporter.
MR WILLS: You see, why I tend to think that the Judge was very accurate in his assessment and his finding is that there is no mention in either yours or the first applicant’s Amnesty application of the story relating to the mini bus taxi conveying ANC passengers. Can you explain that?
MR NDLOVU: Do you mean that the people in the kombi were ANC supporters?
MR MOTATA: May I ask for your apologies Mr Ndlovu. With respect Mr Wills, the Judge formed impressions on the evidence given but if you were to put it as a fact that that’s what the Record says, we don’t have the Record of the evidence thus far, but only the Judgment and the opinion of the Judge and I think his answer is correct in the sense that he says "that is the opinion of the Judge."
CHAIRPERSON: The conclusion which the Judge drew, yes.
MR WILLS: Yes, but thank you Mr Committee member but I’m alive to that legal nicety. With respect, what I’m driving at is that as a result of there being no evidence given by the applicant and his co-applicant in his written Amnesty application about this issue of the kombi conveying people, I’m suggesting to this witness that that opinion that the Judge gave was in fact a correct opinion.
MR MOTATA: I follow thank you.
MR ALBERTS: With respect Mr Chairman, the evidence at the original trial was in fact that they believed that they were ANC members. This Amnesty application form is a very cryptic form. It surely would not have given all the evidence he gave us today.
CHAIRPERSON: I think to simplify matters, irrespective of what the Judge said or did not say, the point that is trying to be made is that in your application form you did not say this. Now he asks for an explanation why you didn’t say this in your application form. I think that’s the question.
MR WILLS: That is indeed so. Thank you Mr Chairperson.
CHAIRPERSON: In your application form, I think he better have his application form in front of him so that in fairness to him he may look at it. We have a terrible copy but Mr Alberts do you have a copy that your client can have a look at please?
MR ALBERTS: Mr Chairman I think my copy is a bit better. CHAIRPERSON: He has a copy of his application form. Precisely what is it that you say he has not put down in his application form.
MR WILLS: I don’t see anything in the application form with respect Mr Chairperson about the incident. The motivation, he seems to be giving at this stage, one of the motivations for the attack on this particular kombi was that it was an ANC transport mechanism and there doesn’t appear to be anything like that in his application form.
CHAIRPERSON: In your application form you do not say that this kombi was used for conveying ANC people. Is that what you’re trying to say?
MR WILLS: Yes.
CHAIRPERSON: Your application form, is that correct?
MR NDLOVU: The problem with this form is that I was replying to the questions in the form as they were. I therefore did not see a space where I could put this story. But I am telling the truth.
CHAIRPERSON: Carry on.
MR WILLS: If the Committee will just bear with me very briefly. I refer you to the Paragraph in the Zulu application form, the application form which you filled out and the question 10(b).
MR NDLOVU: Yes I can see that.
MR WILLS: Can you look at the Section of your application form Section 10(b)?
CHAIRPERSON: That is Page 11 of the papers?
MR WILLS: Page 13, Mr Chairperson.
CHAIRPERSON: Will you turn to Page 13 please.
MR WILLS: Can you see that you had left half a page empty there? ...[intervention]
MR MALAN: Mr Wills, may I just ask, is this material to the application? This is not a new version brought to us. It is the version that was presented also at the trial time. What are you really looking to achieve?
MR WILLS: With respect Mr Committee member, what I am trying to achieve is I’m just trying to get to the truth of this matter and it would seem to me that that would be such a material aspect of the political motivation behind this attack, that that would be one of the foremost aspects that would be put in the application form.
You will be aware that the, both the Trial Court Judgment and the Appeal Court Judgment are riddled with comments by the presiding officers relating to the dishonesty of this witness and the first applicant and with that in mind, whatever happened, whatever they said in the trial, I’m not sure whether it was the truth. What I’m suggesting is, had that been the truth, I am alive to the fact that it did come up in the trial but had that been the truth, I would have expected it to have been a foremost, an important thing placed in the application form. I can take it no further than that with respect.
CHAIRPERSON: What is it that is not the truth. Because if I look at the English translation on Page 21 of the answer to 10(b). He says it was to protect the IFP members and to create a climate where they would canvas support freely without fear of ANC attacks. The answer is given in his application form.
MR WILLS: Yes, Mr Chairperson.
CHAIRPERSON: What do you find wrong with that answer?
MR WILLS: No, I don’t find anything wrong with that answer. I’m being far more specific than that with respect Mr Chairperson. What I’m suggesting is that this story, this specific story which one of my clients was in fact or testified on yesterday and was challenged on is in fact not the truth. That’s all I’m saying.
CHAIRPERSON: Well that’s a matter for argument, isn’t it?
MR WILLS: Yes. Well I’m, it is a matter for argument. I’m trying to create the evidentiary basis for that argument but I can take it no further than that.
CHAIRPERSON: Well now I don’t want to curb your, you see, put it to him about what the witness said yesterday that you would like him to comment on. What it is that the witness said yesterday. The witness said that he was the proprietor of this bus. He was the driver on occasion when he wasn’t at work and when he was at work others drove the bus.
MR WILLS: Yes.
CHAIRPERSON: The bus was used by members of the community generally. This witness and the other applicant say as far as they are concerned this kombi was used mainly to convey ANC people. You’ve got a conflict of evidence on that point. Now what is it that you want to put to him?
MR WILLS: Yes, I will put that to him Mr Chairperson. I put it to you simply Mr Ndlovu that your version about this kombi being a vehicle that was used to transport ANC people is in fact ...(indistinct), it’s not true?
MR NDLOVU: Do you say this because I did not mention it? If that is the case, please note that you cannot put a donkey and a same kraal. This space here was for something that I had said in that space. I would not have put something else there.
MR WILLS: When you were attacked by, on the numerous occasions you refer to by the ANC people, were those people women that attacked you?
MR NDLOVU: No. Those were young boys like me.
MR WILLS: So when you saw that the people that you were shooting in the bus were women, why did you continue?
MR NDLOVU: Let me explain that. People fled Mboyi to other places. When they came back in order to attack Mboyi, they would go to eNkanyezini first to prepare themselves. Woman or mothers in eNkanyezini were not supposed to allow fugitives to come and hide in the area, in their houses. They were supposed to chase those people away.
MR WILLS: Mr Ndlovu, we are in fact in a position to put to you today, that not only were the people that were actually in the bus on that particular day not ANC supporters, they also had absolutely nothing to do with any killing of children.
MR NDLOVU: That is true. What is important is that we did not get the people we were looking for. it was not important then who were the people we attacked then. We however realise that what we did was wrong, that is why we are here today to say that we are sorry, we made a mistake.
MR WILLS: Did you attack the wrong bus?
MR NDLOVU: No the bus was right but the people inside were wrong people. But we are still sorry, even if the bus was right. We blame ourselves for that. We had no right to disturb these people if they were ANC supporters. What we had to disturb was their deeds.
MR WILLS: I want to concentrate for a little while on the issue of the procurement of firearms.
MR NDLOVU: Yes, but I still want to say something about the firearms.
MR WILLS: In the evidence before the Committee there were three firearms utilised in this attack, is that correct?
MR NDLOVU: Yes.
CHAIRPERSON: Just answer the question please.
MR BRINK: Mr Chairman, sorry to interrupt. Is this line of questioning really essential to the merits of this application?
CHAIRPERSON: No, just answer the questions. Only three guns were used, please answer yes or no, that’s all.
MR NDLOVU: ... [no English translation]
MR WILLS: You say that you procured these guns or these guns were provided immediately before the attack or shortly before the attack by one, I think his name was Simon Zondi, is that correct? Siphiwe Zondi?
MR NDLOVU: Yes, Makhekhe is Siphiwe.
MR WILLS: Who had a nickname. The nickname was the one that I can’t pronounce.
MR NDLOVU: ... [no English translation]
MR WILLS: Now, am I correct in remembering that all of these three guns came from that same source?
MR NDLOVU: Yes. We got them from his hands.
MR WILLS: Do you know where he got the guns from?
MR NDLOVU: ... [no English translation]
MR WILLS: What I find strange is, if they were his guns, why didn’t he take them back after the attack? Why did you keep them?
CHAIRPERSON: There might have been all kinds of reasons, for security purposes, he might have felt unsafe having the guns with him. What has that got to do with the issues really?
MR WILLS: I’m sorry Mr Chairperson, possibly I’ve got a different understanding and with respect I stand to be corrected but my understanding of the term "full disclosure" is probably more narrow than it appears to me than what the Committee Members are questioning me around. My understanding is and I say with the greatest respect, please correct me if I am wrong.
If somebody comes to this Committee and even on certain issues which possibly are material but are not absolutely essential to the issue of amnesty, the evidence is blatantly incorrect.
CHAIRPERSON: Well, if the man says that, I was approached by two chaps, that this is what they wanted to do, I agree with it. One of them supplied us with the three guns which we used. After the event I was given those guns to conceal. Now that is as far as I am concerned sufficient information on that issue. Now what is it, I don’t understand what is it that they have not disclosed which is material?
MR WILLS: Yes. Mr Chairperson what I’m investigating is that it is my view that the evidence as regards how these guns came and went is not in fact the truth of the matter and I am investigating that through cross examination.
CHAIRPERSON: You see, if you know what the truth is then you can put the question to him. How are you to know what the truth is when the man who supplied the guns has died?
MR WILLS: I am actually going to put something to him in that regard and I’m building up to that.
CHAIRPERSON: If you have information with those light on it, put it to him.
MR WILLS: Mr Ndlovu do you know how Mr Siphiwe Zondi did die?
MR NDLOVU: i did hear that Siphiwe died.
MR WILLS: Is it correct that there is a certain person by the name of Mr Bernard Mkhize who is presently awaiting trial in regard to this matter?
MR NDLOVU: No. I do not know. What I know is that Makhekhe attacked Mkhize's house and that is where he got killed.
MR WILLS: If you could just bear with me for 30 seconds, thank you. Thank you Mr Chairperson that will be all.
NO FURTHER QUESTIONS BY MR WILLS
CHAIRPERSON: Mr Brink are there any questions you wish to put.
CROSS-EXAMINATION BY MR BRINK: Mr Chairman, just one from the point of view of clarity.
Mr Ndlovu, during the course of your evidence you mentioned that a close relative called Mtombela with whom you stayed?
MR NDLOVU: Yes.
MR BRINK: Is that David Mtombela?
MR NDLOVU: No. It is another ntombela who is our neighbour
MR BRINK: Thank you.
NO FURTHER QUESTIONS BY MR BRINK
MR MALAN: Mr Ndlovu, this Mr Mokeke, was he an office bearer of Inkatha or an SPU or anything?
MR NDLOVU: He was initially staying in Maqonggqo. He then came to Mboyi after IFP structure had already been established there. He therefore did not have any position in Mboyi. I never hear that he was an SPU member.
MR MALAN: Mr Dladla gave evidence that you were also sprinkled with traditional medicine before you left for the attack. Who did the sprinkling?
MR NDLOVU: The sprinkling was done by Makhekhe Zondi.
MR MALAN: The witness, Mr Mkhize that gave evidence yesterday, the owner of the taxi. In the trial you said that you know him well, is that correct?
MR NDLOVU: Yes. I grew in front of him.
MR MALAN: Did you know that that kombi belonged to him?
MR NDLOVU: I knew.
MR MALAN: Do you know the name of the driver that Mr Mkhize alleges was the driver in his absence Tulani Zemu?
MR NDLOVU: Yes, I knew the driver.
MR MALAN: Was he often driving that vehicle?
MR NDLOVU: Because I had left iNkanyezini, I did not know what was then happening there. I only heard stories about Nkanyezini from my co-members. They have gone underground now because they are afraid, but they are still members of the IFP.
MR MALAN: Do you know Kepa?
MR NDLOVU: His name is Qeda. I know him. i grew in front of him. He was ny uncle's neighbour before we left Mboyi.
MR MALAN: Was he also the driver of the kombi?
MR NDLOVU: I have never seen him driving it. i only heard from colleagues in Nkanyezini.
CHAIRPERSON: Any re-examination?
MR ALBERTS: Nothing thank you Mr Chairman.
CHAIRPERSON: Yes, thank you very much. You may go to your seat.
WITNESS EXCUSED
CHAIRPERSON: Are you calling any further witnesses?
MR ALBERTS: No, thank you Mr Chairman.
CHAIRPERSON: Mr Wills, are you calling any witnesses?
MR WILLS: Mr Chairperson I see that it’s just about on teatime, I would like to take this opportunity just to consult with a broad range of clients that I have. It’s impossible for me to do it now. I don’t know if something has come up that somebody would want to counter. But I very much doubt that I will be calling any witnesses but I would just like to put it to them and to establish whether that is indeed so.
CHAIRPERSON: Very well, we’ll take a short adjournment now and resume in 15 minutes. The Committee adjourns.
COMMITTEE ADJOURNS
ON RESUMPTION
MR WILLS: Thank you Mr Chairperson we will not be leading any witnesses.
MR ALBERTS IN ARGUMENT: Thank you Mr Chairman. Mr Chairman it’s my submission that the two applicants did comply with the requirements of Section 20 in that there was surely full disclosure, they told the Commission exactly what happened at the time. The one aspect regarding the mini bus taxi, there was a witness called who somewhat contradicted what the applicants have said.
Firstly the applicants merely related the information they believed to be true at the time. It was information given to them and what they stated is that they believed it at the time and therefore acted bona fide. Mr Mkhize also could not exclude the possibility that this Peta could have driven in the vehicle. He doesn’t know what happened with this vehicle while he is at work. Therefore, that point as such should not be taken to mean that they did not fully disclose.
The other point regarding the mini bus is, it’s true that the Judge at the trial made, came to a different decision, it was on the facts or it was actually an inference that he’d made from the facts given to him at the trial. The two accused at that time obviously were lying. They explained to us why they believed this and they were telling the truth. It’s my submission that this Commission should not be bound by that ruling by the Judge.
The fact that there were innocent people in the vehicle eventually, that was only realised according to the two applicants at a later stage while this attack was already under way and they decided to continue. This should also not be a reason for them not being given amnesty. It’s my submission Mr Chairman that for example a person who plants a bomb at a restaurant, surely he doesn’t know who h is going to be there or what those peoples’ political affiliation, if any, is going to be or a person who plants a bomb in the street and the mere fact that it was in the end innocent people that died and that surely they should have foreseen the possibility that should also not be a reason for them not being granted amnesty.
CHAIRPERSON: Even if they continued after realising that they were women and not the men they were targeting?
MR ALBERTS: Mr Chairman, with respect, in a number of incidents violent, politically motivated incidents in the past, some of them who have received amnesty. The people surely should have known that they were going to attack innocent people. If you plant a bomb in a street or in a busy restaurant, surely you know you are, right from the start, your intention is to kill innocent people.
CHAIRPERSON: I’m now, you know I think that I’m concerned with the facts of this case ... [inaudible] in other cases, you see. I want to know an answer to this question here, precisely what is the answer to this question. That even when they realised that they were women in the bus, they continued attacking. What is the explanation for that?
MR ALBERTS: Mr Chairman, as I have been saying, surely this Commission is not bound by decisions on other matters by the Truth Commission but where a person do get amnesty, that should be taken into account, other decisions made by the Commission.
CHAIRPERSON: ... [inaudible] decisions, I am asking you a question about what is the answer to this point. You see, if you are saying the answer to my question to you is that it was just unfortunate that they were innocent people who got killed but this was in the course of events where innocent people who were being killed on both sides. If that is the answer then I can understand. Don’t go around referring to what happened in other cases. My question to you is what is the answer to the question I’ve put?
MR ALBERTS: Yes Mr Chairman, I was going to get to it, I’m sorry that I’ve taken so long. That is exactly the point, innocent people did die. In this case they did not go out, they were maybe a bit reckless in that innocent people could have died. They didn’t go out to kill innocent people and when they realised it was innocent people they, as Mr Chairman has pointed out, they did continue and it was an unfortunate situation that innocent people had to die but that was unfortunately the nature of the conflict at the time, that innocent people also sometimes died and it’s merely my submission that because of that fact, it should not be a, prevent these people from being granted amnesty. Is there anything else on this aspect.
CHAIRPERSON: ... [inaudible] whether the Act, the requirements of the Act have been satisfied apart from the point that you have mentioned and that is that they have made a full disclosure.
MR ALBERTS: Yes Mr Chairman. The other aspect obviously is whether they were acting on behalf of the IFP. It is true that the call from the IFP leadership was for calm but it’s my submission that these people almost acted as custodians. They decided yes the IFP leadership wants calm but the only way we are going to stop this violence is by hitting back and like Mr Ndlovu in his application stated intimidating the ANC to the extent that they would be scared of attacking us for fear of retribution and that is what both the applicants stated.
I think that Mr Dladla also stated that after this attack, the area became calm. So although they were not acting on instructions of the party and they didn’t even have the go ahead of the, or the approval of the party, there bona fide belief was that they were doing the party a favour although that was not what the party wanted at the time, they believed that was what the party needed at the time.
CHAIRPERSON: Yes, but they weren’t carrying out the orders or the instructions of the party. They weren’t instructed by the party, to do what they did. They did it on their own bat, in the belief that what they were doing, however wrong, might in some way advance the cause of their party?
MR ALBERTS: That is correct Mr Chairman but it’s my submission that it is not necessarily for amnesty to be granted that they had to act on specific orders or even with the implied authority of the party and it’s my submission even where they act in contradiction of the party’s, as a whole, ideology of non violence still they believed that they were acting on behalf of the party.
And that was their bona fide belief. That’s my submission. It’s exactly that, they believed that they were acting correctly although they knew that they were not acting with the consent of the party but they felt that they acted on behalf of the party. Further it’s my submission that they did both show that they do have remorse.
They did apologise for what they were doing and the relationship between the commission of the act and the purpose that they wanted to achieve in the end turned out to be quite far removed in the sense that innocent people died. But it’s my submission that that was not the initial intention of these people. When they acted they had a bona fide belief that they were attacking ANC members at the start at least.
MR MALAN: Mr Alberts on this point, when confronted with the question as to proceeding with the shooting after realising that they had the wrong target, their reply was given that they continued because they wanted the ANC to feel the same pain that they had felt. Now measured by this proportionality principle against the objective, would you argue that on whether they qualify for amnesty?
MR ALBERTS: Yes. Their evidence was even at the time when they realised this is not the same people they thought would be in the vehicle, they still thought these are people from the ANC area and therefore they thought they were still attacking ANC supporters at least.
CHAIRPERSON: I think it must be said quite clearly that nobody believed that the people whom they were attacking were in fact the people that shot and killed the school children. Because nobody knew the identity of those people. They all belonged to an organisation, it was believed they were members of the ANC. So when they were attacking the bus they weren’t in fact attacking the very same people who knew caused the death of the children. They just killed a group that belonged to the other side. Belonged to the ANC.
MR ALBERTS: Mr Chairman their evidence was that they believed this bus to be involved. Mr Dladla said that one of the people at the scene where the children were killed made mention of this bus. Therefore their initial belief was that they were now going to act against this bus. Their bona fide belief at that stage was this bus was connected to the violence and the occupants would be the perpetrators of the violence.
MR MALAN: Mr Alberts my question relates, we’re not arguing that, my question relates to the fact that if we should accept the evidence, that, and I think that’s common cause at least for the second part, that at some stage they realised that these people were not perpetrators or part of the enemy, they were simply occupants of the bus, on their evidence, coming from a specific area which on their evidence was an ANC area.
The argument then, on the evidence is that because they came from that area, if they should be killing them, that would be advancing the cause which is the basis of your whole argument. The question is, is that not so far removed that it could not be taken into account at all as furthering the objectives through the proceeding with elimination after realising the identity?
MR ALBERTS: It’s my submission that, as already stated, innocent people from both sides died. Their bona fide belief and what they were trying to achieve was to intimidate the ANC. Now they got the wrong people, they’re already busy with the attack and now they decided, as far as I understand the evidence, it was almost at the end of the attack and they did continue but they still were attacking, in their minds, the ANC which was seen as an entity. It’s my submission it is not so far removed.
CHAIRPERSON: At some stage when they saw these were women and it was quite clear that they were not the men that they thought, the ANC men whom they were going to attack, when they saw that these were women, they continued to attack. Now my question really is, how does the proportionality test get satisfied on those facts. Isn’t their conduct disproportionate to what they were hoping to achieve but persisting in killing innocent women in order to achieve the objective and the objective was to intimidate ANC people?
MR ALBERTS
