CHAIRPERSON: ...[inaudible] and I'm going to ask my colleagues to similarly announce themselves.
ADV DE JAGER: Chris de Jager.
ADV SANDI: Ntsikilelo Sandi.
CHAIRPERSON: As well as the representatives.
MR MAPOMA: Chairperson, I'm Zuko Mapoma, the Leader of Evidence.
MS COLLETT: Mr Chairperson, I'm Sally Collett representing the applicant in this matter.
CHAIRPERSON: Thank you, Ms Collet. Miss Collet, before we proceed, we had an opportunity to peruse the bundle of papers. None of us are absolutely clear as to which part of the Act the applicant relies on for his application, can you perhaps enlighten us?
MS COLLETT: Mr Chairperson, this is somewhat of an unusual case. The applicant relies on the fact that he was a headman that was appointed by the then Gozo Government and he claims that the act that he committed was as a result of political pressure of the previous Ciskei Government, by virtue of his position as such.
CHAIRPERSON: Now if you look at Section 20(2), there is a number of sub-sections to that sub-section, under which would you argue this application? We think that it could possibly be argued that it falls under (2)(b) of Section 20 but even that gives us a few problems in terms of what is contained in the application. We can't see it falling under any other category.
MS COLLETT: Mr Chairperson, as I've said to you, the applicant is relying on, is stating that this was politically motivated in the sense that the persons who were killed by him, at the end of the day were members of the ANC party and people whom he feared, well he feared for his life with regard to the ANC faction because they were opposed to the headman system. Maybe it ...[intervention]
CHAIRPERSON: Carry on.
MS COLLETT: Maybe it will become more apparent when I'm leading his evidence as to exactly ...[inaudible]
ADV DE JAGER: Was he an employee of the State?
MS COLLETT: Yes, Mr de Jager, he was a headman appointed by the Gozo regime.
ADV DE JAGER: And being paid by the regime?
MS COLLETT: Yes, they did receive remuneration.
CHAIRPERSON: Now Miss Collett, on page 1 of his application form - you say that he committed these acts that he admits to, in his capacity as a headman. Now the form that is completed by applicants normally requests very briefly whether the applicant was an office bearer or member or supporter of any political organisation.
It must be understood, I'm sure you will agree, referring to the capacity in which the actions for which amnesty is applied for was committed and actually what hat he was wearing at the time. Now here he says he was a field worker, he was acting as a field worker of the Pan Africanist Congress. Now from my experience in this type of matter, one would be quite surprised if he was a headman, acting as such, and yet a member of the Pan Africanist Congress at the same time.
MS COLLETT: Mr Chairman, the form was filled in without the assistance of a legal representative. That is the first thing I would like to point out. The second thing is that the headmen that were appointed under the Gozo regime were appointed by the community, by the community electing them as suitable persons and then their appointment as such was ratified by Brigadier Gozo at the time.
Now it didn't matter that the applicant was not a member of the ADM, which was the party of the ruling leader at the time. What did happen - and without trying to give evidence here, I'm sure this will become apparent from the evidence that I intend to lead, is that members who were headmen were regarded as being supporters or members of the ADM, whether they were or whether they weren't. It's against that background that the applicant is actually applying for amnesty.
CHAIRPERSON: Was he wearing a Pan Africanist cap at the time he committed the offences?
MS COLLETT: Mr Chairman, his affiliation to the Pan Africanist Association had nothing to do with the way he was viewed by the community at large. He was viewed as a supporter of Gozo by virtue of the fact that he was a headman, and the headman system was seen to be implemented by the Gozo regime. Consequently all headmen were regarded as ADM supporters, whether they were or weren't was not at issue at that stage. Obviously he had to support the Ciskei Government to be a headman otherwise he wouldn't have been a headman. The great opposition to the headman system as will be apparent from the evidence, was the ANC Youth League and the residents in the particular locations at the time.
CHAIRPERSON: Well let's hear what he's got to say. Maybe it will become clearer as he testifies.
MS COLLETT: As it pleases you.
CHAIRPERSON: Mr Mahayiya, is that how you pronounce it? Which language would you prefer to use?
MR MAHAYIYA: Xhosa.
CHAIRPERSON: Very well.
DANIEL MAHAYIYA: (sworn states)
EXAMINATION BY MS COLLETT: Thank you.
Mr Mahayiya, is it correct that you were a headman and you were appointed as such in 1992?
MR MAHAYIYA: Yes, that is correct.
MS COLLETT: Is it correct that the headmen system was introduced ...[intervention]
ADV SANDI: Sorry Miss Collett, can we get more specifics, when was it in 1992?
MS COLLETT: As it pleases you.
When was it in 1992 that you were elected as a headman?
MR MAHAYIYA: On the 24th of February 1992.
MS COLLETT: How were headmen elected?
MR MAHAYIYA: In other places members from the government under Brigadier Gozo would elect these headmen but in my village there was a difference. When the people had problems with the offices and they couldn't go on with their problems, they couldn't solve their problems, they saw the necessity to elect a headman.
A meeting was called with residents and youth and the candidates were named. It was myself, Mahayiya, Mr Ntusi and Mr Mate. The time for vote came and the people voted for us and I got 98% and the others got 8%. I was taken to the authorities of the village. The person there, the highest authority was Manuang Sizwe, approved the decision and I was taken to Mr Tali in the Magistrate's offices, the Chief Magistrate who was there. I started with my duties on the 26th(?) of February in 1992.
MS COLLETT: Was your appointment confirmed by Brigadier Gozo?
MR MAHAYIYA: After that I was taken to Brigadier Gozo and the members there in his office confirmed by appointment.
MS COLLETT: And did you receive remuneration from the government for that?
MR MAHAYIYA: Yes.
MS COLLETT: Now what was the perception of the community regarding the ...[intervention]
ADV SANDI: Sorry, Miss Collett, if I may interpose on that.
How much were you earning per month?
MR MAHAYIYA: It was R900,00.
ADV SANDI: You say you commenced your duties on the 24th of February, what duties were you supposed to carry out?
MR MAHAYIYA: I used to attend the problems, complaints of the people because there was no headman for a very long time, so I had to solve those problems. I used to see to it that their land claims were attended to and their pensions. Those were my duties.
ADV SANDI: Is that to say that if people were making applications for pensions they would have to do that through your office?
MR MAHAYIYA: At the time they were forced to do so because when the people go to the office they were told to bring their headmen. If they did not have headmen they would not get help. And the people from the townships had to go to the rent office but in the villages the headmen were responsible for that.
ADV SANDI: Thank you.
MS COLLETT: Now as a headman, what political affiliation was it regarded that you had?
MR MAHAYIYA: I got in there as a PAC organiser but as a headman we were not supposed to be members of any political organisation. The only organisation was the one that was under Len Makoma under the traditional leaders in Ciskei that was from Contralesa.
MS COLLETT: What did - how did the community regard the headmen?
MR MAHAYIYA: Some of them did not want to hear a thing about the headmen because of the conditions prevailing at the time and things that used to happen to the people who used to support them. They used to be threatened and the people used to threaten them, threaten to destroy their properties.
ADV DE JAGER: Were you all regarded as supporters or even as puppets of Oupa Gozo?
MR MAHAYIYA: Yes, we were regarded as puppets because if they want to do anything they would say that we were Gozo's informers and we were supporting the ADM, we were supporting his organisation that was ADM. That would take us nowhere.
CHAIRPERSON: Is it true that generally around the Eastern Cape there was general discomfort for the idea and the system of chieftainship? People wanted a democratic government, not so?
MR MAHAYIYA: Yes, that is so, people wanted their own government.
CHAIRPERSON: And while you say you had 90% of the vote, we're not too sure what that means, but ultimately you were appointed by Gozo, not so? If he didn't like what the people said then he wouldn't appoint you, correct?
MR MAHAYIYA: There were headmen who were overthrown during the overthrowing of Ciskei Government and some of the traditional leaders. The chairmen were forced to take the role - chairmen from the community were forced to take the role. I think it was in 1991, after 1990. When the chairpersons were still busy doing the job, Brigadier Gozo was dissatisfied because of the manner they used to do the things because most of these chairmen were youth and he decided to do away with this and he forced the situation, he forced the residents to elect the headmen.
CHAIRPERSON: And even in your case, while you may or may not have got a 90% vote, ultimately you were appointed by Gozo and he was the person that had the power to appoint you and to elect you or not, not so?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: And is that not the reason why the people who did not agree with this system say that you were part of Gozo's regime? Is that not so?
MR MAHAYIYA: Yes, that was the case.
CHAIRPERSON: Yes, carry on.
MS COLLETT: Now as a headman under this political umbrella, did you suffer any losses or attacks at the hands of anybody?
MR MAHAYIYA: Most of the times I used to be attacked from the 19th of June 1992, if my memory serves me well, up to the 18th of March 1993. I was never happy, myself and my family. My children were expelled from school because of the problems that were taking place in the villages.
MS COLLETT: Was your house attacked?
MR MAHAYIYA: Yes, more than once.
ADV SANDI: Sorry, I think the interpreter misunderstood him. I think he said his house was attacked two times.
INTERPRETER: Many times.
ADV SANDI: How many times was your house attacked?
MR MAHAYIYA: Many times, not two times.
MS COLLETT: And what sort of attacks were these?
MR MAHAYIYA: They were attacking my house with petrol bombs. Others would come with petrol and pour it on my windows. I used to extinguish the fire alone, and the police would come and even the committees wouldn't come to my help because they were also being attacked by the people.
MS COLLETT: Now is it correct that as a headman you were appointed for a three year period?
CHAIRPERSON: Why didn't you give up this headmanship if you were attacked by people? And I assume ...[intervention]
MR MAHAYIYA: I called the residents with the aim of trying to explain to them that to me it's very difficult because everything of mine is being destroyed. I wanted to leave the position but when I went to Brigadier Gozo the situation would be difficult because they told me that I do not have a right to get down because I was supposed to be there for at least three years.
CHAIRPERSON: But surely that's nonsense, and you knew that? Here - and let me complete the question, I'm asking why you didn't give up the post because it appears that there were so many people attacking you and objecting to this whole business? Even the police and army couldn't control it, so they must have been bigger than the army and therefore so many people objected to the system. Why didn't you give it up?
MR MAHAYIYA: It was very difficult for me because some of the headmen who left their positions were never happy, even after that they were victims. There was no help. They would be forced to leave their homes. That was the situation.
CHAIRPERSON: Well you were in no better position being a headman, isn't it?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: Therefore I'm asking, why didn't you give it up, or did you want to keep it with all the benefits? Wasn't it attractive to be a headman because you were being paid for it?
MR MAHAYIYA: That was not the issue to me, that was a problem that was taking place in the offices. The were problems and my people would be told to bring their headman. The people used to come to me and ask me and beg me to help them. And mostly the elderly people in the village used to come to me for help.
CHAIRPERSON: Is it true that it was Brigadier Gozo who had control over who received pensions or not, all that?
MR MAHAYIYA: Sometimes most of the things would come from his office and he would block some of the processes because he had his own democratic movement at the time and he was totally against the ANC.
CHAIRPERSON: Carry on.
MS COLLETT: Now when you went to Brigadier Gozo and complained that you were being attacked and victimised as a result of being a headman, what did he do to assist you?
MR MAHAYIYA: He called the Commissioner of Police and the highest authority in the army. I was given five soldiers and five policemen to safeguard me for some time at my home.
MS COLLETT: And did that help?
MR MAHAYIYA: That did not help because it was difficult. It was during the time when the people were preparing for the march that ended up as the Bisho massacre and the soldiers were taken from my home because there was a shortage and therefore they had to be deployed there.
CHAIRPERSON: Now if it didn't help, these policemen and five members of the army, that's 10 people all, wasn't it clear to you that Gozo couldn't help you in this problem and he was going to do absolutely nothing to help you there, fight your plight? Didn't you know that at the time? It was clear for everybody to see.
MR MAHAYIYA: Yes, it was clear that he was actually failing to help us because I was not alone. Most of the headmen from Ciskei had one complaint because we used to meet and discuss the matters and we would take it further. And our complaint was one, that we are being attacked by the people.
CHAIRPERSON: And as you say he was discriminating against people whom he thought did not support his political party, isn't that so?
MR MAHAYIYA: That is correct.
CHAIRPERSON: And you couldn't do anything about that. Once he decided that he's not going to give benefits of a certain kind to a particular person, that would be the end of the matter, isn't that so?
MR MAHAYIYA: As headmen we had a contribution because some of the things, we would object to some of the things that would help people, trying to help the people and we would go on trying to help the people until their problems were solved.
CHAIRPERSON: I'm asking you, once Gozo had made a decision on a particular aspect relating to benefits to people, he would not change his mind? That would be after you had pleaded with him and tried to show him why he should give that benefit, not so?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: So even you couldn't help a particular person once Gozo had ruled on the issue, isn't it?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: So then even you could not help certain people, correct?
MR MAHAYIYA: There were people that I couldn't help.
CHAIRPERSON: Ja. So why didn't you give up this job, because you were seen, and I'm being generous to you, you were seen as being party to this discrimination, sort of black apartheid.
MR MAHAYIYA: The conditions were difficult because when we were discussing these matters and taking decisions that we want to leave our positions, it would be difficult because the people wouldn't leave you alone just because you have stopped being a headman. They would continue attacking you. Many people died because of that.
CHAIRPERSON: Yes, carry on.
ADV SANDI: Sorry, Miss Collett.
Should we understand what you've just said now to mean that at some stage in the course of this conflict and all the problems that were taking place, at some stage you did consider resigning your position as a headman but you decided against that because it was not going to make any difference? Is that what you are saying?
MR MAHAYIYA: Yes, that is correct.
ADV SANDI: Thank you.
MS COLLETT: So the fact that you'd been appointed as the headman kept you in that category whether you liked it or whether you didn't, is that what you're trying to say?
MR MAHAYIYA: Yes, that is correct.
ADV SANDI: What about your PAC comrades, did you ask them to assist you in the situation you were in?
MR MAHAYIYA: They tried to help me many times but ...[intervention]
CHAIRPERSON: Are you saying the PAC accepted the fact that you were a headman in Gozo's regime?
MR MAHAYIYA: The PAC did not object, to such an extent that our then President, Clarence Makweti used to go to our place during a crisis because even the PAC were being attacked in other places as well as the UDM members.
INTERPRETER: ADM, I beg you pardon.
MS COLLETT: Now did it happen that you had to leave your house?
MR MAHAYIYA: Yes, I was once forced to leave my house at a certain stage.
MS COLLETT: When was that?
MR MAHAYIYA: I left home on the 17th of March. We went to a certain place called Kiep Kiep where there was a youth programme where the people whose houses were burnt down were kept.
MS COLLETT: Are you referring to the headmen whose houses were burnt down?
MR MAHAYIYA: Yes, I'm talking about the headmen.
MS COLLETT: Now that was the 17th of March of what year?
MR MAHAYIYA: In 1993.
MS COLLETT: Yes, can you tell us what happened after you'd left?
MR MAHAYIYA: After I'd left on the 18th as a person was left behind trying to take my stock, my brother's stock, the goats and the sheep. Just before Chris Hani's funeral on the 19th, after the, it was announced that after the funeral anything that belongs to ADM or Gozo would be attended to, therefore I was forced to leave some of these goats and sheep and left.
On the 19th one of my brothers came who was working a night shift. As a person who was working night shift he was attacked, everything was burnt down and he was injured and he went to another village. That's how he escaped. Then he came to me and he told me that the kraals, the houses that belonged to Mahayiya were destroyed, everything was taken, everything was just demolished.
MS COLLETT: Yes, and what happened?
MR MAHAYIYA: We tried to meet with the police to tell them that our properties were burnt down, there's nothing left. Even the goats that were still there were stabbed and some of them were taken by the people. The police said they would investigate. Even today they say they are still investigating.
MS COLLETT: Yes, and did you return to your area?
MR MAHAYIYA: I could not go back. I stayed there at Kiep Kiep until on the 24th after deciding to go back and check on my property. I went to Mr Gangqa's place as a person who was my adviser at the time, who was also one of my relatives. I went to his place, I knocked at the door and his wife answered and she said he was not in. I asked her to open. I told her that I was Mahayiya. There was argument between myself and her and she was insulting me and she was saying that I'm Gozo's informer and she doesn't need any person who is connected to Gozo. We struggled at the door because the door was slightly open. I got angry and I was emotional. I shot at her.
MS COLLETT: Now the firearm that you shot at her with, where did you get that firearm from?
MR MAHAYIYA: We got them from the government at the time, Mr Gozo.
CHAIRPERSON: Why did you force your way in? This person told you you're not welcome.
MR MAHAYIYA: What made me to force my way in is because there were things that I was sure that I would get them from Mr Champion at the time because I did not have a problem with them.
ADV SANDI: But didn't she tell that Mr Gangqa was not there?
MR MAHAYIYA: She said he was not there but after some time I heard him talking inside and he was asking me what was happening. Then I realised that he was actually inside the house.
ADV SANDI: What time of the day was it, at night?
MR MAHAYIYA: It was during the night.
ADV SANDI: Did you have anyone in your company?
MR MAHAYIYA: Yes, I was with Zwelidinga Makalela.
ADV SANDI: Who is that?
MR MAHAYIYA: It is one of the gentlemen who was from the peace force but he was not working there at the time because of some problems. He was also with us there at Kiep Kiep. I asked him to accompany me.
CHAIRPERSON: But whether this Champion as there or not, you were unwelcome. You were told you were unwelcome, that she didn't like your presence there. Why did you force your way? Your presence there was being prohibited, on what basis did you feel that you could do what you did?
MR MAHAYIYA: Because I did not have a grudge with Mr Champion and as my brother as we grew up together. I grew up under him because our parents passed away and they left us there and he was helping us and he was taking control of some of our properties sometimes. And he ...[intervention]
CHAIRPERSON: You say you got angry because you were being prohibited entrance?
MR MAHAYIYA: Yes, I got angry at the time, that's what made me to get a shock that my brother's wife was telling me that. So I got a shock.
CHAIRPERSON: And you shot her?
MR MAHAYIYA: I was just shooting randomly. I did not intend to shoot her, unfortunately she was shot.
CHAIRPERSON: Come Mr Mahayiya, I mean that's not what you just told us.
MR MAHAYIYA: Please repeat the question, Sir.
CHAIRPERSON: That's not what you told us a few minutes ago. A few minutes ago you said that you got angry and you shot her and you shot her with a gun that you had received from the Gozo regime.
MR MAHAYIYA: Yes, that is correct. I got angry and I shot her.
CHAIRPERSON: Ja, it's not a question of shooting randomly and she got injured by accident, not so?
MR MAHAYIYA: Yes, that is correct, Sir.
CHAIRPERSON: Now why are you trying to give the impression that she got shot through an accident, or you didn't intend to shoot her?
MR MAHAYIYA: My problem - my intention was not to kill her but because of the situation that I was in at the time, I was forced because there was noise and I could hear that people were coming, the people from the community were coming.
CHAIRPERSON: So you shot her because you were angry when she told you you were not welcome there in her house?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: Is that the reason you shot her?
MR MAHAYIYA: I can say so.
CHAIRPERSON: Is that the first time you had a problem with her?
MR MAHAYIYA: Yes, that was the first time.
CHAIRPERSON: At the time, do you know whether she belonged to a political organisation?
MR MAHAYIYA: Yes. In that community some of us were members of ANC. Most of the youth belonged to PAC. I was also a PAC member, I was also under PAC.
CHAIRPERSON: Did - as you call her your brother's wife, while she may have belonged to a political party, was she an activist?
MR MAHAYIYA: Yes, he was a member.
CHAIRPERSON: Ja, but was she an activist?
MR MAHAYIYA: I can say her children were taking part and she was helping them.
CHAIRPERSON: Mr Mahayiya, do you understand the question? Was she an activist, the person you killed?
MR MAHAYIYA: Yes, there were things that she was doing at the time and in the toyi-toyi's she would be seen there toyi-toying.
CHAIRPERSON: Did you see her?
MR MAHAYIYA: Many times - I've seen her many times.
CHAIRPERSON: Toyi-toying?
MR MAHAYIYA: On this day of Chris Hani's funeral, she was among the women who were there. I cannot say that that was the influence because people would be harassed by youth and even the mothers would be harassed by their own sons.
CHAIRPERSON: Look, let's not play around with words. The deceased, your brother's wife that you say you shot because you were angry because she prohibited you entry into the house, all I'm trying to find out was whether she did anything to you before that day or did you think she was a threat to your political position, before that day when you shot her?
MR MAHAYIYA: What made me to say like this, her husband sometimes if he happened to visit me he would attack Ngonyana and he would also ask him what was he doing there at my place because the people did not want me. I could see that there was a division among my relatives, that other people were supporting the ANC.
CHAIRPERSON: Mr Mahayiya, do you understand my question? That lady you shot that day because you were angry with her, before that day did she do anything to you in your capacity as a headman?
MR MAHAYIYA: Nothing. She did nothing.
CHAIRPERSON: So there was no reason for you to feel threatened by her, before that day?
MR MAHAYIYA: There was no reason.
CHAIRPERSON: And your headmanship was not threatened by anything she could or would do, not so? Correct?
MR MAHAYIYA: I cannot say that because many people were harassed by their sons and they turned, they changed and each and everyone changed and they did not trust the headman, and I was also among those.
CHAIRPERSON: But by the time you shot her you had no reason to believe that she would do anything to you in respect of your headmanship, correct?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: So the simple thing that happened is that you went there wanting to see your brother and she told you: "You're not welcome here, you are being prohibited from entering this house". You got angry and you shot her. Do I understand you correctly?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: Yes, thank you.
MS COLLETT: Thank you.
Did you consider her as an enemy towards the headmanship that you held?
MR MAHAYIYA: Yes, because each and everyone in the community were regarding headmen as enemies.
CHAIRPERSON: What about those people you used to help then? If each and every person in the community were regarding you as an enemy, why didn't you give it up? You told me that you didn't give up this headmanship because there were people who relied on you and you were helping, is that not so or did I misunderstand you?
MR MAHAYIYA: Please repeat the question, Sir.
CHAIRPERSON: You say that you thought that the deceased was an enemy because each and every member of the community had a problem with your headmanship, but yet earlier you told me that you did not give up this headmanship despite all these problems that it gave you because there were still members of the community who relied on your assistance, now what is the truth?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: Now how can you say that this lady, the deceased, could be regarded as your enemy when you in fact said she did nothing to you and you at the time you shot her had no reason to believe that she was a political threat to you in your capacity as a headman?
MR MAHAYIYA: I did not have a problem with Mrs Gangqa but the situation was getting worse all the time because it did not end there, when the headmen's houses were being burnt down. Everything was just out of control and even the public servants were in problems. Most people changed because of the situation.
CHAIRPERSON: But you never shot her because of that, you shot her because you were angry when she told you you were not allowed into the house, correct?
MR MAHAYIYA: Yes, that is correct.
CHAIRPERSON: And that is the only reason you shot her, am I correct?
MR MAHAYIYA: Yes, that is true.
CHAIRPERSON: Yes, Miss Collett?
MS COLLETT: Did you feel rejected by her?
MR MAHAYIYA: Yes, it became clear on that particular day that she did not like me. She didn't like me.
MS COLLETT: Why was she rejecting you?
MR MAHAYIYA: Perhaps it was the influence from what was taking place because the youth would come back and attack the people who were supporting that group of people.
MS COLLETT: You mean supporting the headmen?
MR MAHAYIYA: Yes, the people who were collaborating with the headmen.
MS COLLETT: Now prior to you becoming a headman, had you been rejected by this family?
CHAIRPERSON: Even if his answer is "yes", of what relevance is it whether they rejected him or not?
MS COLLETT: If I could be given some latitude I will try and establish some link here.
ADV DE JAGER: Sorry, could I just ask a question.
Mr Mahayiya, the deceased was also in a dilemma wasn't she? If she would allow you to enter the house, her children or people, the youth, seeing her allowing you into the house would regard her as a collaborator with you and her life would have been in danger, isn't that so?
MR MAHAYIYA: Yes, that is true.
ADV DE JAGER: And wasn't that perhaps the reason why she rejected you?
MR MAHAYIYA: That could be the reason.
ADV DE JAGER: But then we've still got the problem, why did you kill her?
MR MAHAYIYA: The time when I arrived there at that time I did not think that I would seen and identified because I was not going to spend more time there, I just wanted to get something clear from Mr Champion and I would go back to my place.
ADV DE JAGER: Ja, but I've asked you to give me the reason why you killed her, why did you kill her?
MR MAHAYIYA: I got angry when I was not given an opportunity to get in and see Champion.
ADV SANDI: If you were angry Mr Mahayiya, why didn't you go and vent out your anger to those people who were making a noise and coming onto your way?
MR MAHAYIYA: That did not come to my mind.
ADV SANDI: Was anyone else shot in that house?
MR MAHAYIYA: Yes, and Mr Champion got injured.
ADV SANDI: Okay, you shot Nomutile Gangqa, what followed next?
MR MAHAYIYA: I got the report from the police that Champion was in hospital. He was injured on that particular day. I could not see because it was dark and the lamp that she was holding fell down. I was not sure as to how many people were in the house during the incident.
ADV SANDI: How many times did you pull the trigger?
MR MAHAYIYA: If I'm not mistaken I think it was about four times and the spring broke and two bullets were left.
ADV SANDI: Didn't your firearm jam at some stage?
MR MAHAYIYA: Yes, it did jam after that and I realised that the bullets were not the same size. One bullet was shorter than the others.
ADV SANDI: What happened, did you try to get another firearm?
MR MAHAYIYA: No, I did not because no-one could give me a gun.
ADV SANDI: This gentleman who was in your company, what was he doing, what did he whilst all this was happening?
MR MAHAYIYA: He was standing outside. He did not get into the house.
ADV SANDI: Thank you.
MS COLLETT: Do you maintain that your action was politically motivated?
MR MAHAYIYA: Yes. The situation prevailing at the time was a cause of a political situation because these two organisations were against each other and everything that was taking place there was because of a political situation, because people wanted to overthrown Gozo's government.
MS COLLETT: Do have anything that you wish to say to the victims of the person that you killed and the persons that you injured?
MR MAHAYIYA: Yes, there is something. I'm asking for forgiveness for what I did. I did not feel good after that and life was not the same for me because in my entire life I never thought I could do such a thing ...[intervention]
CHAIRPERSON: What did you carry a gun for then? Why did you carry a gun if you thought couldn't do it? Why, did you think you're going to walk around like a cowboy, that's all?
MR MAHAYIYA: It was for protecting myself.
ADV SANDI: Yes, but that night you went to that house you were not protecting yourself, what you were doing you were just shooting. You went on a shooting spree. You say you pulled the trigger for about four times. You could never have been protecting yourself, were you?
MR MAHAYIYA: The situation that day, or I was emotional at the time because I was shocked at the rejection. I did not expect for such things to happen when I got to Mr Gangqa's house but unfortunately this mistake transpired.
ADV SANDI: Who is Nokupumla Gangqa?
MR MAHAYIYA: That is Mr Champion Gangqa's daughter-in-law.
ADV SANDI: You shot her also?
MR MAHAYIYA: According to the report I got from the police, yes, even though I did not see her in that house.
ADV SANDI: If you pulled the trigger four times in a house in which there were people, what did you think was going to happen? Did you think that those bullets were going to hit someone in the house?
MR MAHAYIYA: Yes, that could happen.
ADV SANDI: How could that have been politically motivated, to shoot Nokupumla Gangqa? Do you say that was also a politically motivated act?
MR MAHAYIYA: I can't say certainly that she was there because when I got there it is Mrs Gangqa who answered the door. Nokupumla didn't even stay there, she stayed on her own. But according to the police report I shot Nokupumla. I did not dispute that because I never saw her. It was dark in the house so I can't be sure.
ADV SANDI: Did you say you heard the voice of Champion Gangqa speaking from the background?
MR MAHAYIYA: This house had two rooms. When this happened he was in the bedroom. He said: "What are you doing my child, this terrible thing you're doing, what are you doing"? I don't know when he emanated from the bedroom because it was dark. We were in the front room, he came from the bedroom and when he spoke he spoke from the bedroom.
ADV SANDI: Okay. You shot these people in that house and then what happened?
MR MAHAYIYA: After that I left, I went back to where I came from.
ADV SANDI: Where were you coming from, Kiep Kiep?
MR MAHAYIYA: Yes.
ADV SANDI: Those people who were making a noise coming in your direction, what happened?
MR MAHAYIYA: I just heard the noise, they never came to me. There were a whole lot of people, chaos in the streets of Diketigana(?) that night.
ADV SANDI: What chaos was this?
MR MAHAYIYA: I don't know what was going on but something was going on. I could hear shots. People were trying to find protection from the school buildings. There was something going on. I don't know what was going on.
ADV SANDI: What happened to the gentleman who was in your company, Mr Makalela? What did you say was his name, Zwelidinga Makalela?
MR MAHAYIYA: We left together.
ADV SANDI: Did he ask you what was happening in that house?
MR MAHAYIYA: He heard everything that was going on so he did not ask anything. What he asked was whether I shot at Mrs Gangqa. I said: "Yes, it seems as if I have shot her".
ADV SANDI: Did he ask you why you had shot her?
MR MAHAYIYA: No.
ADV SANDI: Why not, you had not gone there to shoot anyone.
MR MAHAYIYA: I don't know what was going on in his mind. I don't know why he didn't ask.
ADV SANDI: Maybe he knew that you had gone there to shoot, that is why he was not asking you for what reason had you opened fire there.
CHAIRPERSON: In any case you say you can't say why he never asked?
MR MAHAYIYA: That's a difficult question, Sir because it was his own mind, his own process of thought but we did not have an agreement that we were going there to shoot.
ADV SANDI: Thank you.
ADV DE JAGER: Mr Mahayiya, as I understand the position you're house was burnt down, your cattle were, or your goats were killed or taken away and in reaction to that you decided to go to Mr Champion, is that correct?
MR MAHAYIYA: I went to Mr Champion's house because I knew that he would help me. He knew what was going on in my home, he know what was going on also in the community. He also knew about my stock, my livestock.
ADV DE JAGER: Okay, you went to Champion. He was a friend of yours, you'd grown up together, he's been your guardian and you wanted advice from him, is that correct?
MR MAHAYIYA: That is correct.
ADV DE JAGER: What sort of advice did you want from him, or what information did you want from him?
MR MAHAYIYA: As the police could not investigate or find out as to what happened to our livestock that was stolen, they said that the situation in Diketigana was difficult. I wanted information about these things. I wanted to know where my livestock had gone.
ADV DE JAGER: Yes, up to there I quite understand the position. Now you knocked at the door and the woman opened and she refused you entrance into the house.
MR MAHAYIYA: That is correct.
ADV DE JAGER: You got angry and you shot her.
MR MAHAYIYA: Yes, because of the dispute that we had.
ADV DE JAGER: Now how could that help you to solve your problems, how could you achieve anything by shooting her?
MR MAHAYIYA: It did no help me because of the dispute between she and I, therefore I ended up not getting the help that I wanted because of what happened.
ADV DE JAGER: Did you think it could help you in any way if you would attack her and shoot her or shoot at her even if you didn't want to kill her?
MR MAHAYIYA: No, I did not think that it would help but what is important was that I could get Mr Gangqa so that he could help.
ADV DE JAGER: Yes, but now Mr Gangqa wouldn't talk to you after you've killed a person in his house, would he? And you didn't even try after that because you went out then.
MR MAHAYIYA: I agree. That is so, I did leave.
ADV DE JAGER: Thank you.
MS COLLETT: Is there anything further that you'd like to say in support of your application for amnesty?
MR MAHAYIYA: Yes, there is.
MS COLLETT: Please go ahead.
MR MAHAYIYA: As the situation was such that I was emotional and I was not all there and my leader was Brigadier Gozo, we did not know what was going to happen. There was no hope. Our children had to leave the schools, they couldn't go to school. It's all that was going on that contributed to this situation.
As Mahayiya, I ask for forgiveness, I ask forgiveness from Champion Gangqa because it was the situation at the time. He also saw what was going on. Also I ask Nompumla to forgive me because it was not my wish to do this to their family but I had to because of the political situation at the time, because of the strife. That is all.
MS COLLETT: Thank you, Mr Chairperson.
NO FURTHER QUESTIONS BY MS COLLETT
CHAIRPERSON: Mr Mapoma, have you got any questions?
CROSS-EXAMINATION BY MR MAPOMA: Chairperson, just a few.
Mr Mahayiya, after you left Diketigana for Kiep Kiep, you never again stayed in Diketigana, is that correct?
MR MAHAYIYA: That is correct.
MR MAPOMA: And in fact, at the time you went to the Gangqa family, you had already left Diketigana?
MR MAHAYIYA: Yes, it was my livestock that was left behind.
MR MAPOMA: And you were no longer carrying out the headman's duties in Diketigana at the time, is that so?
MR MAHAYIYA: We were still working as headmen because our time had not, we were not finished our term yet.
MR MAPOMA: Yes, apart from that you were not practically doing the duties as a headman for Diketigana at that time. That's what I'm saying.
MR MAHAYIYA: We would go to the offices to help people because we'd meet people at the Magistrate that needed help, therefore our duties were continuing.
MR MAPOMA: Now why did you go to the Gangqa family at night?
MR MAHAYIYA: Because I was scared and I wanted to protect myself from the community and the youth. I had to go at night then.
MR MAPOMA: Now your companion, was he armed?
MR MAHAYIYA: No. He just had a knife.
MR MAPOMA: Was he not a member of the Defence Force?
MR MAHAYIYA: No, he was a member of the peace force but because there was no longer a peace force, he then lost his job.
MR MAPOMA: No further questions, Chairperson, thank you.
NO FURTHER QUESTIONS BY MR MAPOMA
ADV SANDI: Mr Mahayiya, is it true from what we have read in some these statements we've been supplied with, is it true that soldiers were assaulting people at your house?
MR MAHAYIYA: I can't say it is so, Sir because what happened is the police would find these people in school halls and they were told not to do that. They had their meetings there. The police would then call the soldiers who were at the police station in Dimbaza and they then would come and chase everybody away.
ADV SANDI: Do you know Xolisi Maneli? Was he killed in the same evening?
MR MAHAYIYA: Yes, I do know him.
ADV SANDI: Was he killed on the same evening?
MR MAHAYIYA: I heard about Xolisi Maneli after I was in jail, during my trial. I heard that he died on the same night when I was there.
ADV SANDI: Thank you.
CHAIRPERSON: Mr Mahayiya, do you remember in the criminal trial you were defended by Mr Taljaard?
MR MAHAYIYA: Could you please repeat the question, Sir?
CHAIRPERSON: Do you recall that you were defended at your criminal trial by Mr Taljaard?
MR MAHAYIYA: Yes.
CHAIRPERSON: And you pleaded guilty to murder and two counts of attempted murder.
MR MAHAYIYA: Yes.
CHAIRPERSON: And you signed a statement setting out the facts upon which you were convicted.
MR MAHAYIYA: Correct.
CHAIRPERSON: In that document, that statement, do I understand it correctly that you said that you held this old man, I assume it is Champion Gangqa, responsible for you having lost your house and perhaps some of your stock and you went to that house to find him?
MR MAHAYIYA: I have no - I never made such a statement. I only heard from the police that Champion was also injured that night.
CHAIRPERSON: No. You know you made a statement to Mr Taljaard and you signed and he handed in to the court. I'm talking about that statement, where you said you had a problem with this old man who seemed to be related to the people living in the house where you shot this lady.
MR MAHAYIYA: I don't remember such a statement. Maybe I'm confused but I don't remember it. Even about Mr Champion being in hospital I only heard during the trial.
CHAIRPERSON: Well, let's put it this way, that the Judge there in passing sentence indicated that you had a vendetta against a person who was apparently related to these people who were injured as a result of your actions that night. Do you recall the Judge saying so?
MR MAHAYIYA: Sir, I'm confused now. I don't remember being asked such questions.
CHAIRPERSON: Okay, well let's leave it. Let me ask you this, is it not so that you went to that house looking for a person with whom you had a problem?
MR MAHAYIYA: No, Sir.
CHAIRPERSON: Why did you go there?
MR MAHAYIYA: I went to Mr Champion ...[intervention]
CHAIRPERSON: For what?
MR MAHAYIYA: I wanted to find out about my livestock, if he knew of anyone who had taken my livestock.
CHAIRPERSON: Why did you think he would have known?
MR MAHAYIYA: He was always next to me. When everything happened he would advise me. We used to go to work but he didn't go to work and therefore he was overlooking our home. I trusted him more than anyone in the community that time.
CHAIRPERSON: Mr Mapoma, have you got an address of Mr Champion Gangqa and Nokupumla Gangqa?
MR MAPOMA: Chairperson, I don't have it here now with the documents but they are here themselves. I can just consult with them to get that.
CHAIRPERSON: Do that please.
MR MAPOMA: Okay.
CHAIRPERSON: Miss Collett, was Nokupumla injured?
MS COLLETT: Mr Chairperson, I believe she's one of the persons who had the attempted charge against him.
CHAIRPERSON: Was she physically injured or don't we know?
MS COLLETT: I don't know, it wasn't apparent from the record but she definitely did have a charge of attempted murder.
CHAIRPERSON: Ja, I know that.
MR MAPOMA: Thank you, Chair. It's: P O Box 452, King William's Town.
CHAIRPERSON: Both of them?
MR MAPOMA: Both of them, yes, Chairperson but the correct name for the person who is referred as Nokupumla is Nozinzo Gangqa, the daughter-in-law to Champion and the deceased.
CHAIRPERSON: How do spell the name?
MR MAPOMA: N-O-Z-I-N-Z-O.
CHAIRPERSON: Miss Collett, I haven't given you an opportunity of further questioning if any.
MS COLLETT: I have no further questions.
NO FURTHER QUESTIONS BY MS COLLETT
CHAIRPERSON: Yes, Mr Mahayiya, thank you very much.
Miss Collett, are there any other witnesses you'd like to call?
MS COLLETT: No, further witness, Mr Chairperson.
CHAIRPERSON: Then is that the application?
MS COLLETT: That is the application.
CHAIRPERSON: Mr Mapoma, have you got any witnesses?
MR MAPOMA: Chairperson, I don't intend calling the victims.
CHAIRPERSON: Miss Collett, would you like to address us?
MS COLLETT: Mr Chairperson, I think what I said at the beginning of my client's, upon what the application is based. I have nothing further than that to add.
CHAIRPERSON: We'll adjourn for a brief period and will return.
WITNESS EXCUSED
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Before I proceed to give the decision, I wish to make mention that we are extremely thankful to all those who arranged this session during which a number of hearings occurred, including those responsible for the wholesome meals and those responsible for logistical matters.
We're extremely thankful also to the interpreters and technicians who do a good service so that the public are able to understand proceedings.
We are also thankful to those prison officials and members of the South African Police Services for their assistance. Perhaps one day in history we all will appreciate what it means to us.
We're also thankful to all the representatives who appeared at the various hearings and applications, for their assistance. We are particularly thankful to the public who took an interest in the matters that were heard.
A special thanks to the media who publicise what occurs in such hearings and perhaps in their case also the value of their work will only realised with time. While it cannot be thought that those who have sustained losses of life and limb and property are able to easily forget and forgive what has occurred to them, it must be remembered that this country has a long history of atrocities on both sides of the divide, colour line and otherwise. One can only hope that through the passage of time the paid that they had to endure will be eased and that it would diminish as that time proceeds.
We must remember, and that is all of us need to contribute in whatever way and however small towards a sustenance of a country as one nation, irrespective of the differences that we have had to put up with and irrespective of natural differences because those don't count and to live in this country like we should have from the very beginning.
F I N D I N G
The applicant applies for amnesty for the murder of Nomutile Gangqa and the attempted murders of Champion Gangqa and Nozinzo Gangqa.
During the period prior to this incident there was general unrest in the area where the applicant and the victims reside. This was particularly so for the applicant who was appointed the headman under the Gozo government of the time. It is not necessary for us to detail and discuss the moral and political implications of such a system. It is clear that many people did not support and respect the system of chieftainship and consequently headmanship and many people saw the headmen as lackeys of the Gozo regime.
As a result it seems that the applicants sustained, as did the other headmen, losses in the form of burnt houses and attempts to his life and losses in the form of his livestock.
This understandably gave rise to extreme frustration for the applicant and he thought that the political opponents and apposition parties such as the African National Congress, were responsible for the factors which led to such frustration.
Ironically the applicant was despite being appointed as headman by Gozo, a member of the Pan Africanist Congress. Nonetheless he sustained, and we accept that he has sustained all these losses.
On or about the 24th of March 1993 he went to the house of Champion Gangqa who appears to have been the applicant's mentor in some way. He stated that the reason for going to the house was to ask Champion if he knew who could be responsible for the aforementioned losses.
He was accompanied by a friend and was armed with a firearm at the time. He was denied entrance into the house by Nomutile Gangqa, the deceased. He became extremely angry and shot her and at others inside the house.
It is noteworthy that he says that when he shot Nomutile she dropped the lantern or light-producing device and as a result of this the inside of the house was in complete darkness. He nonetheless continued to discharge the firearm.
He says that he heard from other sources including the police, that Champion and Nozinzo had been injured as a result of him firing in the house. As a result of his actions, Nomutile died and both Champion and Nozinzo were injured.
Section 20 of Act 34 of 1995 makes the granting of amnesty obligatory if the applicant has made a full disclosure as to the commission of the offences for which he applies for amnesty and that it was done for political reasons in order to attain some political objective.
We have no reason to doubt that the applicants has substantially made full disclosure as to how these offences were committed.
The applicant relies on the general unrest in the area at the time, in particular he regards his status as a headman as the attraction for political opposition to his political status. To some degree he argued that it is in this context that he acted and committed the crimes for which he now seeks amnesty, but it must be remembered that clearly he was angry because he was being prohibited entry into the house and it is this that resulted in the shooting and consequent death and injuries.
These people were innocent people whom he had approached. He had no reason at the time to think they were a threat to his life or political status. It was he who approached them. There was no prospect of achieving any political objective by his actions. We are therefore not satisfied that the act has been complied with in this application. IN THE RESULT THE APPLICATION IS REFUSED.
Furthermore, MR CHAMPION GANGQA AND NOZINZO GANGQA ARE BOTH DECLARED VICTIMS as envisaged by the Act, and it is recommended that they be treated as such in terms of the Act.
I declare this session closed.
HEARING ADJOURNS
