Amnesty Hearings

MR BLACK: Mr Chairman, the next applicant is Mr Bongani Wilberforce Khaba. He will want to testify in Zulu.

BONGANI WILBERFORCE KHABA: (sworn states)

MR BLACK: Thank you, Mr Chairman. The actual prescribed amnesty form appears on page 40 of volume 1 of the bundle, and proceeds to page 46, where the attestation clause appears. This applicant is seeking amnesty in respect of a murder, a count of murder, attempted murder and two counts of unlawful possession of firearms. May I refer the committee to page 47 of the bundle? This is a supplementary statement which elaborates on the prescribed application form.

EXAMINATION BY MR BLACK: Now, Mr Khaba, could you turn to page 57 of that bundle please? Right. Now is that your signature which appears there, at the bottom?

MR KHABA: That is correct.

MR BLACK: Yes. Page 57. And you signed this document before an attorney and commissioner of oaths, is that correct?

MR KHABA: That is correct.

MR BLACK: Now, what is contained in this document, from pages 47 to 57, is this, to the best of your knowledge, a true and correct account of the circumstances there?

MR KHABA: Yes, there are some things that I have not mentioned here, but everything is as it is.

MR BLACK: Right. So, as you mention in your statement and as you say now, you may wish to add, elaborate a bit to the document. Okay, could we page back to page 47 please? Now, the sub-heading or section referred to as (a) introduction, you state, in the first paragraph, that you're seeking amnesty in respect of offences relating to and surrounding the murder of Mr Obed Friday Nhlabathi, is that so?

MR KHABA: Correct.

MR BLACK: Now, turn over the page. You have, if, with the leave of this committee, a lot of this is background, so I will be going through it in a manner which is somewhat leading until there's objections. I will give the under-taking that when it comes to the actual events, he will, in his own words, or he will testify and elaborate. You say that for this committee to really understand more or less what was happening, you request that they do refer to evidence given before the Goldstone Commission, Human Rights Violation Committee of Truth and Reconciliation Commission, and specifically relating to evidence given by residents of all of the area implicated, that's the Ermelo, Secunda, Piet Retief area, during July of 1997, or no, sorry, that's the date when the commission sat.

MR KHABA: Would you please repeat?

MR BLACK: Briefly, at the top of the page, you are requesting that this committee refer to evidence given before the Goldstone Commission and to the Human Rights Violation Committee of the Truth and Reconciliation Commission, which heard evidence from residents in the area of, concerned, which is Ermelo, Piet Retief and Secunda area?

MR KHABA: That is correct.

MR BLACK: You also state in paragraph 3 that you personally testified before the Goldstone Commission and provided the commission with details which were in your knowledge, personal knowledge, relating to the political turmoil, the murders and attacks carried out by the Black Cats, IFP members, the para-military trainees who received training in the Caprivi Strip and activities of those parties and organisations which were intent on murdering people sympathetic towards the African National Congress, and generally disrupting the community life?

MR KHABA: That is correct.

MR BLACK: Okay. You say that you don't have details of your evidence given to the Goldstone Commission, but you will try and give as much detail relating to the killing of Obed Nhlabathi?

MR KHABA: That is correct.

MR BLACK: Okay. Now, if you page on to 49, you say this is a broad outline of your evidence which is contained in this document, and we move on to sub-section (b) relating to your personal details. When were you born?

MR KHABA: I was born here at Ermelo.

MR BLACK: But when, on what date?

MR KHABA: I was born in 1974.

MR BLACK: You went to school in Ermelo?

MR KHABA: That is correct.

MR BLACK: You say that there was, gangsterism was a problem amongst the youth at that stage, at the time?

MR KHABA: That is correct.

MR BLACK: You say you became a member of the Wesselton Youth Congress?

MR KHABA: That is correct.

MR BLACK: And at that time, in 1986, the purpose was to participate in rent boycotts, as the community where you lived considered that the then town council was corrupt and misappropriated money, is that so?

MR KHABA: That is correct.

MR BLACK: At this time you were still living in Wesselton, were you?

MR KHABA: That is correct.

MR BLACK: During 1989 you say you became a member of the Anti Crime Campaign?

MR KHABA: That is correct.

MR BLACK: Now could you just explain, this is the first time that organisation has arisen, what was the Anti Crime Campaign?

MR KHABA: This was actually a group of youth that was against crime.

MR BLACK: Could you just turn over, page 50.

CHAIRPERSON: Sorry, Mr Black, before you do that, can we get clarity as to when exactly crime started becoming a problem? We have heard now that in 1989 the applicant became a member of the Anti Crime Campaign, but when did this problem of crime begin exactly?

MR BLACK: Mr Khaba, could you, you've heard the, have you heard the question?

MR KHABA: Yes, I did.

MR BLACK: Now you were a youth and a resident of the Ermelo area, could you perhaps tell us what the situation was relating to crime and gangsterism, and when did it really begin?

MR KHABA: There were many gangsters at Wesselton Township fighting against each other, and people were being robbed at night, that is around 1989. The Anti Crime Campaign started at the time when there was already this criminal element in the township.

MR BLACK: Okay. On page 50 you carry on to mention persons such as Mr Chris Ngwenya and Jwi Zwane. When you met them and knew them, what - when you first got to know them, what was their situation, what were they doing?

MR KHABA: Chris Ngwenya and Jwi Zwane were the people who were in charge of the youth in the Anti Crime Campaign.

MR BLACK: Ja?

MR KHABA: Chris and Jwi, Chris in particular, organised drama for the youth and he was liked by the community and residents. As time went on, during which time the Anti Crime Campaign came into being, they realised that what they were doing was acceptable to the community, and a civic organised a rally at the stadium and they were invited and told that they have to work for the community.

MR BLACK: Okay. You, did you associate yourself with Mr Ngwenya and his members, you being a member of the Anti Crime Campaign at that time?

MR KHABA: Yes.

MR BLACK: You say in paragraph 4 that they co-operated closely with the South African Police and soon began a campaign against the Wesselton Civic Association. What do you mean by that?

MR KHABA: I am saying here that when they had confiscated arms or knives, they would take these to the police.

MR BLACK: Okay. You say

"Later on a stage..."

in paragraph 5:-

"...a stage was reached..."

or let me put it this way, you say that at that time Chris Ngwenya was a popular person and in fact you say that the civic, by that I understand the Civic Association, asked him to participate in rallies together with them, is that so?

MR KHABA: That is correct.

MR BLACK: When, in paragraph 5 you say

"A stage was reached when the leaders of the Civic Association called the members of the Anti Crime Campaign to order to complain that the community at large were complaining to them..."

that's the Civic Association, I assume:-

"...that members of the Anti Crime Campaign were in fact carrying out crimes against the community."

MR KHABA: That is correct.

MR BLACK: Then you go on in paragraph 6 where you say

"Soon Mr Chris Ngwenya and Zwane were leading attacks on members of the civic and I became involved in the attacks and counter-attacks which were taking place in the community",

and you explain this, give further details, because you go on to say that:-

"These details are important in order to give the community some insight as to the political divisions and troubles which existed in the community."

Okay. Can you just explain a little there about the troubles that started to develop?

MR KHABA: It was on a Sunday morning, and it looked like Chris and some other boys went to Mr Tusi Bobelo's house to attack him after it was discussed that the Anti Crime Campaign had indicated that the Black Cats were robbing people. Chris took some other boys and they went to attack Mr Bobelo. Unfortunately, they did not find him. Apparently they found him, but he did not open the door, and they just ended up communicating with him from outside and this was taken to a meeting, and they went to Chris's house to ask him what was happening about his visit to go and attack Mr Bobelo on that morning. Chris did not want to understand, because he thereafter did not want to leave his home, instead he called the police and indicated to them that he was being attacked, and the police came. That is when Chris Bobelo, shall I say when the police arrived, he got out of the house and he realised that there was nothing that the civic people would discuss with him, because there were now police, they left him.

MR BLACK: Okay, I don't want to go into every incident in so much detail. So at this stage there developed a difference, a rift, a clear rivalry between Chris Ngwenya and Zwane and his, and you, with the Anti Crime people and the Civic?

MR KHABA: That is correct.

MR BLACK: You go on further to say that, at paragraph 7, you can give details of various clashes which took place in the faction led by Chris Ngwenya and Wesselton Civic Association. I don't know if it's necessary to go into all those details, but at that stage were clashes taking place in the township?

MR KHABA: Yes.

MR BLACK: Okay. You allege here that Ngwenya and Zwane enjoyed the support of the IFP, the municipal authorities and were protected and armed by certain elements of the South African Police?

MR KHABA: That is correct.

MR BLACK: Do you have personal knowledge of this?

MR KHABA: I used to believe these people, sometimes the police would arrive in my presence, they would talk to them in my presence. Many crimes were committed during that time and these crimes were not seriously taken up by the police.

MR BLACK: Let's go on to, how do you know they enjoyed the support of the IFP?

MR KHABA: It is because there was an UHUSA office at Wesselton, that is where I found out, because I was once sent there, I discovered from the visit that they were working hand in hand with Inkatha.

MR BLACK: If we go further on now to paragraph 8, do you see paragraph 8 there at the bottom?

MR KHABA: Yes.

MR BLACK: Now I don't want to lead you on this, because the police mentioned here are represented, but could you just describe what happened at this occasion at the UWISA offices, when Sergeant Captain Botha and Van Zyl and other police were present?

MR KHABA: I was from UWISA going to the municipal office at the township. It was myself and Jomo Shongwe, and when we arrived, there was Sergeant Botha, Captain Botha and Warrant Officer Van Zyl. I think Captain Marais was also present, and when we arrived, we sat down and they then asked who among the Black Cat members knew how to use a gun. China Simese and Jwi Zwane identified themselves as such, and they took them, and when they came back they had guns, and... (intervention).

CHAIRPERSON: Can you just repeat what the question was, the question that was asked by whoever in that office, about firearms?

MR KHABA: Warrant Officer Van Zyl wanted to know from us as to whether there were Black Cat members who could use a gun.

CHAIRPERSON: Who was he referring to, who was he asking?

MR KHABA: He was asking us, because there were other Black Cat members in the very same office, which members we found there.

ADV BOSMAN: I'm not quite sure whether I followed. At the time when you belonged to the civic organisation, you seem to have been only 14 years old, is that correct?

MR KHABA: Are you talking about the civic?

ADV BOSMAN: Yes. It says here you were born in 1974.

MR KHABA: Yes.

ADV BOSMAN: And in 1989, you joined this Anti Crime Campaign.

MR KHABA: That is correct.

ADV BOSMAN: Were you only 14 years old?

MR KHABA: Yes.

ADV BOSMAN: And at the time when you met at the UHUSA offices, when you were asked about who could use a gun, were you then also only 14 years old, or how old were you then?

MR KHABA: Even though I cannot still remember how old I was in 1989, but I think I was still young. You too can establish that if you were to work it out. He did not ask me personally, but he asked our group.

MR BLACK: Okay. Now, you said who went off to go and fetch the guns?

MR KHABA: It was Jwi Zwane and China Simese.

MR BLACK: And did they return with any firearms?

MR KHABA: Yes.

MR BLACK: Then what happened?

MR KHABA: That is when the attacks started. They went to attack Mr Ngosi's house. Mr Ngosi was an ANC member.

MR BLACK: Now, if you turn over to page 52, you allege in paragraph 9 at the top there that a number of firearms were stored at the house of Mr Chris Ngwenya, including self-made firearms, ngwasha(?), and that these firearms were being supplied to us through UHUSA offices. Is that, do you have personal knowledge of that?

MR KHABA: That is correct.

MR BLACK: You say

"Our instructions were to attack ANC sympathisers and members of the community who supported, sympathised with the civic and who were considered by Ngwenya and Zwane, together with certain members of the town council and police, to be enemies."

Now, who gave these instructions?

MR KHABA: Chris and Jwi were the ones who gave out the instructions, because they were our leaders.

MR BLACK: But now who - the leaders of whom, you say "our leaders"?

MR KHABA: They were leaders of the Anti Crime Campaign, the same group that later on became the Black Cats.

MR BLACK: At this stage, were you also round about 14, 15 years old?

MR KHABA: I would say that.

MR BLACK: Now you say you became troubled by the events taking place and you could see that violence was increasing, and you became more and more involved, and it became more difficult for you to break away from the group being led by Chris Ngwenya and Jwi Zwane?

MR KHABA: That is correct.

MR BLACK: Because why didn't you just, why didn't you break away at that stage?

MR KHABA: I was still young at the time when everything was happening and Chris and Jwi, as far as I knew them, I can say I was afraid for my life, because anything could have happened to me.

MR BLACK: The next development you refer to was, you were ordered to undergo para-military training at Matetekulu, a youth training base in Kwazulu-Natal for the purposes of becoming a special constable in the Kwazulu-Natal Police. Do you see that?

MR KHABA: Yes.

MR BLACK: Could you just give us a bit more detail on that, how it came about that you were sent away for training and what type of training you received?

MR KHABA: It was in 1991 when we came back from Makuza camp, and certain members had to be taken from the Black Cats group, taken back to be trained and come back so that they should face the ANC here at Ermelo.

MR BLACK: So you completed your training in June 1991?

MR KHABA: That is correct.

MR BLACK: After you'd qualified, or underwent the training course, you came back home to Ermelo and what did you see when you got back?

MR KHABA: When I came back, I discovered that there were many community members who were getting injured, including ANC members, and some of them were being attacked for simply wearing an ANC T-shirt, and many people died innocently.

MR BLACK: Turn over to page 53. Now, were you happy for what you saw when you got back after your training?

MR KHABA: Not at all.

MR BLACK: Would you have been prepared to put into practice your para-military training in Ermelo, on behalf of the people who had sent you away?

MR KHABA: Things in the township were such that there was nothing else that I could do to continue with these people, because I realised that what they were doing are not part of our vision when I entered the Anti Crime Campaign, they were doing exactly what was against the Anti Crime Campaign.

MR BLACK: You go on to say that you contacted Mr Perela Shongwe, who was a member of the ANC Youth Organisation, who introduced you to the ANC leadership in the township, is that so?

MR KHABA: That is correct.

MR BLACK: And you did, did you eventually become a member of the ANC?

MR KHABA: That is correct.

MR BLACK: Now if you move further down, you say that when the Goldstone Commission invited persons to give evidence about those events which prevailed in Ermelo and Darville(?) area, you actually gave evidence before the Goldstone Commission, and you gave details about and experiences of the attacks which were carried out by the Black Cats and allegedly supported by the South African Police against ANC supporters?

MR KHABA: That is correct.

CHAIRPERSON: Sorry, Mr Black, just before that, a further little detail, how did it come about that you gave evidence before the Goldstone Commission, how did you get there?

MR KHABA: I contacted the lawyers for human rights.

CHAIRPERSON: Where was that?

MR KHABA: I was here and they were in Johannesburg, I phoned them.

MR BLACK: Thanks. Why did you want to testify before the commission?

MR KHABA: It is because the things that were happening at the place where I lived were not pleasing at all, because the police would create a situation where a case that's been opened would not succeed, and I wanted to expose everything that was being covered by the police.

MR BLACK: So while you were busy in the process of giving evidence before the Goldstone Commission, you've returned to Ermelo and you met Mshwandle Gushu, is that correct?

MR KHABA: That is correct.

MR BLACK: That is Mshwandle Gushu who has just testified, the first applicant?

MR KHABA: That is correct.

MR BLACK: You say he introduced you as a member of the military wing of the ANC, Umkhonto we Sizwe, and did he instruct you and others to form a self defence unit, a SDU?

MR KHABA: That is correct.

MR BLACK: He asked you who the leaders of the Black Cats were, who were terrorising the community, is that so?

MR KHABA: That is correct.

MR BLACK: We've already heard that Mr Gushu was not from Ermelo, but had actually, he had been called to, had arrived from outside to come to Ermelo?

MR KHABA: That is correct.

MR BLACK: You told him that the leaders, Chris Ngwenya was the principal leader of the Black Cats and by that stage Zwane had already been killed?

MR KHABA: That is correct.

MR BLACK: You also mentioned that Obed Nhlabathi, Bongani, Malinga and Nkosi, together with the police, were the main forces behind the Black Cats?

MR KHABA: That is correct.

MR BLACK: So you actually gave him and pointed out various leaders of the Black Cats to him, is that so?

MR KHABA: That is correct.

MR BLACK: Did you then, did you join this SDU, did you... (intervention).

MR KHABA: Yes.

MR BLACK: And did you actively participate in its activities?

MR KHABA: That is correct.

MR BLACK: You say you returned to give evidence to the Goldstone Commission and while giving evidence to the Goldstone Commission, you were told, or you learnt, that Chris Ngwenya had been killed, and after Chris Ngwenya had been murdered, the Black Cats went to your home and killed your mother, because they knew that you had revealed the activities of Chris Ngwenya and the Black Cats?

MR KHABA: That is correct.

MR BLACK: Is that what you were told?

MR KHABA: Yes.

MR BLACK: Then when you returned home, you found that Obed Nhlabathi was still alive and he was still playing a prominent role in the attacks on the community?

MR KHABA: That is correct.

MR BLACK: Now, when you returned home, then did you again make contact with Mr Gushu?

MR KHABA: That is correct.

MR BLACK: You describe him as your MK commander?

MR KHABA: That is correct.

MR BLACK: Did he give you a firearm?

MR KHABA: That's correct.

CHAIRPERSON: Where and when did you get in contact with Mr Gushu again?

MR KHABA: The first time I came across Mr Gushu, I did not know his name at that stage, and I think quite a number of Black Cats at one stage met Mr Gushu without knowing his real name, they knew him as Rasta, and when I met with him when I was still with the Black Cats during 1991, we tried to negotiate or have talks with Mr Gushu, but I did not trust whatever he said until at a later stage when I was showed Palela Shongwe, or Palela Shongwe showed him to me.

MR BLACK: I'm not quite sure if I understood that, the commissioner wants to know perhaps when you came back, after having testified before the Goldstone Commission, you reported back to your MK commander Gushu?

MR KHABA: That is correct.

MR BLACK: And where did you meet him to report back to him?

MR KHABA: Mr Gushu was staying at Wesselton.

MR BLACK: Mr Gushu has testified that after the, if I may refer to it as the Piet Retief incident in which he was involved in the shooting of Mr Msebe, he purchased a gun and he gave it to you. Is this the time and stage when he gave you a gun, when you came back from the Goldstone Commission?

MR KHABA: That is correct, he gave me the gun after the Goldstone Commission.

MR BLACK: Now you said your Comrade Livingstone Lukhele was given orders by Mr Gushu, what were the orders which he gave?

MR KHABA: When I came back as a member of the self defence unit and when I got to the location, I got information that the people who were involved, for instance Obed, had a big part that he was playing in attacking the members of the community, and Mr Gushu gave us the permission to go and look for Obed and kill him.

MR BLACK: Right. You say that about May 1992, you were with other comrades, you learnt that the Black Cats were harassing people at a disco in Ermelo, is that correct?

MR KHABA: That is correct.

MR BLACK: Could you then just tell the committee what happened when - did you go to the disco with...

MR KHABA: When I arrived and heard that the Black Cats were harassing people at the disco, I was going to my grandmother's place, that is myself and Livingstone and Dumisane and Dumisane's girlfriend. As we were proceeding towards my grandmother's place, that is where the Black Cats were staying. Along the way to my grandmother's place, we came across certain members of the ANC Youth, and they are the ones who told us that they had to flee the disco and there were some other people trapped inside the disco because the Black Cats were giving them problems, they were harassing them and they were trapped inside the disco.

MR BLACK: Right. So did you actually go to the disco to find out what was happening, or to assist?

MR KHABA: That is correct, but the route that we used towards my grandmother's place goes past the disco itself.

MR BLACK: When you arrived at the disco, what happened?

MR KHABA: When we got to the disco, just even before we got there, a certain guy by the name of Vusitwala, a member of the Black Cat, went past us, and realised immediately after passing us that it was myself and Livingstone. Then he went back to the disco, he went right inside the disco, but we didn't pay much attention to him, we proceeded with our journey, now heading towards the disco itself. As we came closer to the disco, that's when we saw members of the Black Cat coming out of the disco, and they had come to attack us, we had a confrontation with them.

MR BLACK: Did they shoot at you?

MR KHABA: That is correct.

MR BLACK: So then did you return any - were you armed?

MR KHABA: Yes, I had a gun.

MR BLACK: Did you shoot back?

MR KHABA: That is correct, I did.

MR BLACK: Now, one of the people who was wounded in that confrontation was Obed Nhlabathi, is that so?

MR KHABA: That is correct, Obed Nhlabathi was a member of the Black Cat, amongst us was Dumisane Simalane.

MR BLACK: Were any of your comrades injured?

MR KHABA: Yes, I said Dumisane.

MR BLACK: Oh. What did you do with him?

MR KHABA: We took him to his place so that they could rush him to the hospital.

MR BLACK: What happened later on, shortly after that?

MR KHABA: We proceeded to Wesselton, that is myself and Livingstone, and when we were at Wesselton we reported to Mrs Inkose, a member of the Womens League, that is the ANC Womens League, as to what had happened about Dumisane being shot, and Mrs Inkose went to the hospital. We did not stay long, Mama Inkose came back and told us that members of the Black Cat had also taken Obed to the hospital and they wanted to kill Dumisane right inside the hospital building. That's when we moved, that is myself and Livingstone, we proceeded to the hospital.

MR BLACK: Now when you arrived at the hospital, what happened next?

MR KHABA: When we got to the hospital, we found that the other members of the Black Cat had already left. We asked as to what had happened earlier on and Dumisane explained to us that they wanted to finish him off and we asked what the problem was. He said they saw him when they had brought Obed Nhlabathi. I asked the nursing sister, I pretended to be one of the members of the Black Cat in order to get more information.

MR BLACK: Okay. So then when you got there, what happened?

MR KHABA: I told the nursing sister that I was a member of the Black Cat group and we want to see Obed Nhlabathi, and the nursing sister showed us as to where Obed Nhlabathi was. We proceeded, with the instructions that Obed had to be removed, we went into his ward and when we got there, I took out my gun and I finished him off.

CHAIRPERSON: In your statement on page 55, or let me ask you this, did you shoot him?

MR KHABA: Yes, that is correct, I shot him.

CHAIRPERSON: Is that how you killed him?

MR KHABA: That is correct, I shot him.

CHAIRPERSON: In your statement on page 55 you say that he was stabbed?

MR KHABA: I think that is a mistake, I shot him, I didn't stab him.

CHAIRPERSON: Yes, carry on.

MR BLACK: May I, just for the record, I'm just, my attorney has got a statement in which it says stabbing and shooting, and that I wanted to clear up with him, why this hadn't been - apparently he'd received instructions to have amended this at the last hearing, and for some reason or other it wasn't sent to the TRC, I can't, so I don't want it, apparently he'd received these instructions by March of last year. So you shot and stabbed... (intervention).

CHAIRPERSON: Mr Black, he said he shot him.

MR BLACK: And what did Livingstone do, if anything?

MR KHABA: Livingstone stabbed him.

MR BLACK: Right. Now when you decided to shoot Mr Nhlabathi, what did you think you were doing, what was your motive for it?

MR KHABA: As I had already pointed out that Mshandile was a leader or a controlling person within the self defence unit, he had actually given us the authority to kill Obed, and there was no other way we could have done it, we just had to kill him, because he had earlier instructed us.

There was even an ANC secretary within that ward, that is Obed's ward. We had earlier been given an order to kill him, and because there was this other member of the ANC, if we eliminate one member of the Black Cat, they would not be able to retaliate or kill one of our members who was in the hospital.

MR BLACK: Well, did you think you were carrying out the orders of your commander at the time?

MR KHABA: That is correct, as well as the ANC's commands.

MR BLACK: Did you do this for any personal revenge or gain?

MR KHABA: No.

MR BLACK: Now, just to avoid any other delays, I want you to page to page 192... (intervention).

CHAIRPERSON: Before you go on, the secretary of the ANC who was in the ward, what was he doing there?

MR KHABA: He was injured as well and he was admitted in the same ward wherein Obed Nhlabathi was admitted.

CHAIRPERSON: He was a patient?

MR KHABA: That is correct.

CHAIRPERSON: And who was that?

MR KHABA: His name was Silas Nkonyane.

CHAIRPERSON: You say he was injured by who? It's not very clear at this stage to me.

MR KHABA: He had broken bones in his body or fractures, but I don't know as to how he sustained them.

CHAIRPERSON: You wouldn't say he was attacked as part of this conflict? He was not attacked, he was just injured?

MR KHABA: I have no clarity.

ADV BOSMAN: Is this the same Nkonyane who is also an applicant here in this hearing, or can't you say?

MR KHABA: That is correct.

MR BLACK: Okay, may I proceed? If you page to page 192, before I refer to page 192, I just want to ask you, when were you arrested?

MR KHABA: With regard to this matter, or... (intervention).

MR BLACK: Yes.

MR KHABA: I was arrested during the year 1992 and got out on bail.

MR BLACK: But since when have you been in prison, let's put it that way then?

MR KHABA: That is from 1996, February, on the 2nd of February 1996.

MR BLACK: And at the time of your arrest, were you at school, or... (intervention).

MR KHABA: That is correct.

MR BLACK: And what standard had you attained?

MR KHABA: I was doing standard nine.

MR BLACK: Now in regard to page 192, this is the charge sheet with which you were charged when you appeared before the Court as a 19 year old. Do you see that?

MR KHABA: Yes, I can.

MR BLACK: Now, in terms of this, I just want to clarify certain issues, so we don't waste time, in terms of this charge sheet, you were charged with eight counts, that's attempted murder, murder and then two counts of unlawful possession of firearms and ammunition, and then there was a, count No 5 is another murder, and similar unlawful possession, and No 8 was another murder. Now, we've gone through the record together, you recall that?

MR KHABA: Yes, I do.

MR BLACK: I just want you to explain to this committee, as far as count No 8 is concerned, if you page to page 195, was that charge withdrawn?

MR KHABA: On the month that I was convicted, I was told that there was insufficient evidence with regard to that charge, so it was withdrawn.

MR BLACK: Now, you were convicted of charges 1, 2, 3 and 4, that's the attempted murder, that's the attempted murder and murder, both of which relate to the shooting, initial shooting of Obed and the subsequent killing of Obed, and then two charges of unlawful possession of firearms and ammunition, is that correct?

MR KHABA: That is correct.

MR BLACK: Now, the evidence which you gave to the Court at the trial, effectively you pleaded not guilty and you relied upon what they call an alibi evidence, do you remember, you say you weren't there, you were somewhere else with friends?

MR KHABA: That is correct.

MR BLACK: Now that evidence which you gave, and which was rejected by the trial judge, was that evidence true or false?

MR KHABA: That was false.

MR BLACK: And what you are telling the committee today, is this the true version of what happened and how it came about that Obed was killed?

MR KHABA: That is correct, I'm telling the truth now, I wasn't telling the truth then.

MR BLACK: Could you tell the committee why you did not tell the truth then, what motivated you?

MR KHABA: It's because I was well aware that all the charges against me were not true, they were false, they were trying to actually press them on me, the police as well as members of the Black Cat, wanted me to be found guilty, that is why I could not speak the truth at the court of law.

CHAIRPERSON: Are you saying that you're not guilty, but you were erroneously found guilty?

MR KHABA: Chairperson, what I mean to say is that what made me to tell lies in court was for the fact that I knew that the complainants had submitted false statements, even though the basis of the charges was true, but they added some information that was not true in order to press me down, or to get me convicted, but today I have come before this committee to tell the truth about all that happened.

CHAIRPERSON: So you did commit the murder and attempted murder, and you were in possession of an illegal firearm, together with the ammunition?

MR KHABA: That is correct.

CHAIRPERSON: Yes.

MR BLACK: Could you also tell, what was your experience of the police and the security after they had taken - what did you - what was your personal experiences, what did you think they could do?

MR KHABA: Immediately after having given evidence before the Goldstone Commission, I had a problem with the police as well as the security police. As a result there were a lot of incidents whereby police were involved.

CHAIRPERSON: Mr Black, of what relevance is that?

MR BLACK: Ask him further, did this have any influence on your attitude towards the courts and the police?

MR KHABA: I didn't have a problem with the police initially, but at a later stage we had a problem, I had a problem with them.

MR BLACK: Okay, obviously there's a misunderstanding, he's not - right, I have no further evidence, thank you.

NO FURTHER QUESTIONS BY MR BLACK

CHAIRPERSON: Mr Khaba what was the purpose of your being trained?

MR KHABA: When we first left for Makusa, we were told that we were going to be trained so that when we came back to the area, we would be able to protect ourselves from members of the ANC.

CHAIRPERSON: Did it turn out to be like that?

MR KHABA: Not at all, things were different when we came back.

CHAIRPERSON: And what did it turn out to be, what did you use your training for?

MR KHABA: That's when I realised that I had to pull myself out, because I realised now that we were getting involved in criminal activities and killing innocent people.

CHAIRPERSON: Were you a member of the Black Cat?

MR KHABA: That is correct.

CHAIRPERSON: Who was controlling the Black Cats?

MR KHABA: It was Dumisane as well as Chris Ngwenya.

CHAIRPERSON: Were they the bosses of the Black Cats?

MR KHABA: That is correct, they were the leaders.

CHAIRPERSON: Were they being led by anybody else, or did they make the decisions?

MR KHABA: There was a time when they would meet with the municipal office workers, as well as the police, and they would report back to us that they had had a meeting with the police or the members of the municipality.

CHAIRPERSON: Would they say what this meeting was for and what was decided there?

MR KHABA: I think I would give you an example. At one stage when the office, that is Mr Ngwenya's office, was burnt down, who was a member of the ANC, the police arrived at the office, that was Sergeant Botha and Warrant Officer Van Zyl, they spoke with Chris with regard to the burning down of the office, they even gave him money to buy petrol in order that Mr Ngwenya's office could be burnt down.

CHAIRPERSON: You were present when that was discussed?

MR KHABA: Yes, I was present.

CHAIRPERSON: The police that interfered with you later, after you testified, did you know them?

MR KHABA: Yes, I do.

CHAIRPERSON: Did you come into contact with any of them as a member of the Black Cat?

MR KHABA: That is correct.

CHAIRPERSON: They weren't pleased that you're giving evidence at the Goldstone Commission, or why did they then interfere with you?

MR KHABA: It's because the things that I gave evidence about at the Goldstone Commission affected them directly.

CHAIRPERSON: Mr Patel?

MR PATEL: Mr Chairman, I must apologise, I'm not very well. Could I have five minutes, I won't be longer than five minutes? Thanks.

COMMITTEE ADJOURNS

ON RESUMPTION

ADV SANDI: Can you just explain a few things here concerning your military, your training, maybe I should not call it military training, what was this training on, were you trained with arms, what kind of, can you tell us more about this training?

MR KHABA: The use of firearms, as well as hand grenades.

ADV SANDI: What kind of firearms were those?

MR KHABA: We were trained to use G3, 9mm, as well as palm guns, AK-47's as well.

ADV SANDI: Who was giving the training?

MR KHABA: It was Dalekolo Lotoli, Peter Msame, as well as Sugar None Israel Shilwane.

ADV SANDI: How long did this training take?

MR KHABA: I think it was six months.

ADV SANDI: Were you given any political lectures as part of this physical training?

MR KHABA: Yes, that is correct.

ADV SANDI: Who was giving the political lectures?

MR KHABA: J Flute Enthetwa.

ADV SANDI: What was the content of these lectures, what was being said during the lectures?

MR KHABA: He lectured us with regard to the then situation, but he was very negative, he was actually against the ANC, and as we were under the wing of Inkatha, we had to be fully fledged members of Inkatha, and he also lectured us on leaving the party for another.

ADV SANDI: Were you the only one who came from Ermelo to attend this training?

MR KHABA: No, I wasn't the only one.

ADV SANDI: Who were the others?

MR KHABA: When we went to Makuza, all the members of the Black Cat were there, 32 of us in all.

ADV SANDI: And you were supposed to come back to Ermelo?

MR KHABA: That is correct.

ADV SANDI: To do what exactly, when you get to Ermelo?

MR KHABA: According to our training and instructions, before we went for training we were told that when we came back, we would not be bothered by the members of the ANC or harassed anymore.

ADV SANDI: You mentioned that you were about 15 years old at the time, were there any other people amongst yourselves who were also 15, or about the same age as you?

MR KHABA: Yes, there were, some were the same age as myself, some were younger.

ADV SANDI: Thank you, Mr Khaba, thank you, Chair.

CHAIRPERSON: Mr Patel?

MR PATEL: As it pleases you, Mr Chairman.

CROSS-EXAMINATION BY MR PATEL: Mr Khaba, when did the Anti Crime Campaign become - change their name to become known as the Black Cats, do you know?

MR KHABA: It started when the community started complaining about some criminal activities that were going on.

MR PATEL: Do you have any personal knowledge as to whether the South African Police had any role in the formation of the Anti Crime Campaign?

MR KHABA: Yes, because after the weapons had been found, they were taken to the police.

MR PATEL: Now, on page 54 of your statement, this is one of your discussions with Mr Gushu, you make mention of three people as being some of the main forces behind the Black Cats, namely Obed Nhlabathi, Ongani Malinga and Nkosi. Were your instructions that you received, was it merely to eliminate Obed or all three?

MR KHABA: It was to eliminate all three.

MR PATEL: Now, the person who you mentioned, Helele Shongwe, was he part of your self defence unit?

MR KHABA: Yes, that is correct.

MR PATEL: I have no further questions.

NO FURTHER QUESTIONS BY MR PATEL

MR KEMP: Mr Chairman, I would request your indulgence that my cross-examination of this witness stand over for a while, it will not mean an adjournment, my learned friend Mr Hattingh will be able to continue with cross-examination now. It is possible that I might be able to curtail my cross-examination extensively after I've had a time to take further instructions after hearing the evidence, and I will be able, tomorrow morning, to either proceed or curtail as much as possible. Thank you.

MS VAN DER WALT: No questions.

NO CROSS-EXAMINATION BY MS VAN DER WALT

MR MAPOMA: No questions.

NO CROSS-EXAMINATION BY MR MAPOMA

MR HATTINGH: Thank you, Mr Chairman.

CROSS-EXAMINATION BY MR HATTINGH: Mr Khaba, for what period were you a member of the SDU's, a member of the ANC, before you were arrested?

MR KHABA: From 1992 up till 1994 when I changed and got into the defence unit, the Defence Force.

MR HATTINGH: Did you join the Defence Force of South Africa in 1994, is that correct?

MR KHABA: That is correct.

CHAIRPERSON: Are you representing a family member of the deceased, Nhlabathi?

MR HATTINGH: That's correct, yes, the mother of Nhlabathi, Obed Nhlabathi.

CHAIRPERSON: What will her name be?

MR HATTINGH: If you'll bear with me for a moment, I just want to get the name, thank you.

CHAIRPERSON: While you're at it, you might as well check what the grounds of the opposition in this case is.

MR HATTINGH: Thank you, Mr Chairman, the name of the mother is Gertrude Nkosi, and the grounds for our opposition of the application is, we will lead evidence to the effect that the murder of Obed took place as a revenge murder, not for a political motive.

ADV SANDI: Yes, but Mr Hattingh, is it not inherently in the nature of the conflict we're dealing with here, we're dealing here with a number of applications emanating from a conflict that was taking place during the given period, is it not in the nature of that conflict that the two sides were attacking each other?

MR HATTINGH: That may very well have been the case in the conflict, but what we are saying here is that this murder took place without a political motive, it does not comply with the requirements of the Act to enable someone to get amnesty.

CHAIRPERSON: You say it was a revenge attack, presupposes that the deceased committed a murder?

MR HATTINGH: There was the belief with the applicant that the deceased, Obed, killed his mother, the applicant's mother, some six weeks prior to this incident.

CHAIRPERSON: And what was the context?

MR HATTINGH: Sorry?

CHAIRPERSON: What was the context? Death of the mother, in what context did that occur?

MR HATTINGH: As far as I know, the death of the mother occurred on the 12th of April 1992. That was on the same day that Chris Ngwenya got killed. I'm now talking under correction, I believe that people went to the applicant's mother's house and that she got killed at her house, but the circumstances, right now I cannot tell the committee all the details. Mr Khaba, you were part of the SDU formation for a period of two years then, is that correct, approximately two years?

MR KHABA: That is correct.

MR HATTINGH: Prior to that, you were on the other side, so to speak, supporting Inkatha and their organisations?

MR KHABA: What do you mean by that, could you please just explain?

MR HATTINGH: All I want to say is that, prior to you joining the SDU's, the ANC side, you were on the other side, the Inkatha side?

MR KHABA: I was before, but I defected from Inkatha and went to the ANC, or into the ANC, under the self defence unit.

MR HATTINGH: You are applying for amnesty for only one matter, that is the killing of Obed, and obviously the weapons, the illegal weapons with which... (intervention).

CHAIRPERSON: He's also applying for attempted murder of Obed.

MR HATTINGH: Let me rephrase, you are only applying for amnesty for the incident regarding Obed, and for nothing else?

MR KHABA: That is correct.

MR HATTINGH: For no other incident during your period with the SDU's, the two year period with the SDU's on behalf of the ANC in Ermelo?

MR KHABA: Insofar as my involvement is concerned, these are the incidents.

MR HATTINGH: And this incident for which you are applying for amnesty is the only incident in which you were convicted and sent to a jail term, is that correct?

MR KHABA: That is correct.

MR HATTINGH: Mr Khaba, you started your application for amnesty by way of the official form, we find that on page 42 of the bundle of documents, is it your signature on page 6 thereof, on page 45 of the bundle?

MR KHABA: That is correct.

MR HATTINGH: Did you yourself fill in this form, the application for amnesty?

MR KHABA: That is correct.

MR HATTINGH: And did you yourself send it off to the proper office where applications were to be received?

MR KHABA: This form was sent by the ANC office in the Nelspruit region.

MR HATTINGH: Now when you completed this form for amnesty, did you tell the truth in this form, and only the truth?

MR KHABA: That is correct.

CHAIRPERSON: Mr Khaba, I see this form is filled in in English, what's your mother tongue?

MR KHABA: Zulu.

MR HATTINGH: You already told the committee that you completed standard nine at school, is that correct?

MR KHABA: That is correct.

MR HATTINGH: Did you carry on with your schooling after standard nine?

MR KHABA: No, I was not able to.

MR HATTINGH: Do you understand English?

MR KHABA: I can say my use of the language is fair, not excellent or good.

MR HATTINGH: But you elected to complete your application for amnesty in English, is that correct?

MR KHABA: We were helping each other, that is myself and the other comrades I was with when I filled in the form.

MR HATTINGH: Perhaps you can just tell the committee, whatever is noted or on your application form, what you wrote on this form, did you understand what you wrote there?

CHAIRPERSON: Mr Hattingh, he must have had the bona fide belief that it was correct, isn't it? He may have been mistaken, but he didn't think so?

MR HATTINGH: Perhaps I can rephrase, if you look at this application form now, can you read and understand what is written in your application form?

MR KHABA: With regard to what exactly?

MR HATTINGH: What you wrote on this form.

CHAIRPERSON: Maybe, Mr Hattingh, you must point out the issues that you want him to, the form has a lot of mundane issues as well.

MR HATTINGH: What I'm talking about is where you - in the form you have to give details about the incident for which you make application. That you also wrote yourself, is that correct?

MR KHABA: Could you please repeat yourself?

MR HATTINGH: The details of the incidents for which you were making application for amnesty, those details you're supposed to put in this form. Can you remember that?

CHAIRPERSON: Could he be referred to a particular page or whatever?

MR HATTINGH: Mr Khaba, let's start on page 41, paragraph 9(a)(1). Can you read what you wrote there?

MR KHABA: Which part should I read, should I start from the beginning of the page or should - I don't know where you're referring to.

MR HATTINGH: Mr Khaba, I'm not going to waste further time, what I - perhaps you can explain to this committee is, I cannot find anywhere in this document any reference or any admission by you or any explanation or any disclosure by you of the killing of Obed. It would appear to me that you did not apply for amnesty for the killing of Obed, because you didn't ask for it, you didn't give the details thereof. If I may refer to, it's obviously sketchy and we - page 44.11(b), he starts about at - he relates about what happened at Dube disco. Mr Chairman on page 44.11(b) it is stated no-one was killed that time, that's all that is stated. Page 44 of the bundle, under paragraph 11(b) it is stated no-one was killed that time, but it is only Obed Nhlabathi injured, member of Inkatha. In the... (intervention).

CHAIRPERSON: Where do you... (intervention).

MR HATTINGH: On page 44 of the bundle, it's page 5 of the application, we have paragraph 11(a) and then 11(b), where it starts

"I do this because I was endangered..."

or:-

"I do this because I was in danger..."

and then he carries on, about on the fifth line, it says:-

"No-one was killed that time. Only Obed was injured."

MR MAPOMA: Chairperson, if I may be of assistance. Now on page 41 of the bundle, on paragraph 9(a) of the application form, the acts for which amnesty is sought there, murder is there, amongst others, and then on page 42, the victim is named there as Obed Nhlabathi. Now the impression that one can give is that the murder is in relation to Obed Nhlabathi, unless some other explanation may be needed.

MR BLACK: Thank you. Mr Chairman, may I also add that, well I'm certain that this committee has had various forms placed before it, but I would submit that the offences in respect of which application is being sought, are actually named, and as the leader of evidence points out, there's a victim involved and then there's some elaboration. It's for this reason, of course it could also be established whether he had legal representation or assistance at the time, it is for this reason that supplementary statements often have to accompany these forms when, by the time it comes to the hearing.

CHAIRPERSON: Mr Hattingh, I don't think we're going to have anything turn on this, it's quite obvious that the intention to apply for the murder and attempted murder, as two separate incidents.

MR HATTINGH: Mr Khaba... (intervention).

CHAIRPERSON: If you look on page 45, you will see there also that he says he was sentenced for murder, attempted murder and the possession of... (intervention).

MR HATTINGH: Mr Khaba, the question remains, you gave no details whatsoever, no disclosure of the killing of Obed in your application. Why not?

MR KHABA: There is somewhere where I wrote that I killed, I attempted to kill and I possessed illegal firearms as well as ammunition. It is somewhere in my application form. I might have probably filled it in at the wrong place, but filling it I did.

MR HATTINGH: I merely wish to put to you that you, on appraisal of the application form, there is no disclosure of the incident, the details of the killing incident. Do you have any comment?

ADV SANDI: Sorry, before the witness answer that, but Mr Hattingh, what is he required to do in terms of the Act when he applies for amnesty? Is he not supposed to state the offence or crime or delict in respect of which he's applying for amnesty as well as the victim or victims, and further detail and evidence to be led there at the hearing?

MR HATTINGH: Mr Chairman, that's not the way I understood the Act to be, I thought one would have to make application and give full disclosure, that was the initial idea, that one would give full disclosure.

CHAIRPERSON: At the hearing.

MR HATTINGH: I'll accept that, Chairperson. Mr Khaba, in your application form, you describe the reason, your motive for doing what you did, as one of self defence?

MR KHABA: That is correct.

MR HATTINGH: You say that, on page 43 under sub-paragraph (b), and I'm going to read what is written here

"I do this because was a political motivated because the member of Inkatha, when he saw me, they tried to kill me because I give evidence in Goldstone Commission about his working with SAP."

And then, again on page 44, under paragraph 11(b), under the paragraph:-

"If so stated, particulars of such order or approval and the date thereof and if known, the name and address of the person who gave such order or approval."

Then you say again:-

"I do this because I was in danger. The member of Inkatha was trying to kill..."

something:-

"...and me in Dube tonight disco, and they shoot my friend in the legs."

What I want to put to you is that nowhere in this application do you say a word, a single word, to the effect that you were acting under the instructions of Gushu to eliminate Obed, which is absolutely in contradiction with your evidence today?

CHAIRPERSON: How does it contradict the evidence?

MR HATTINGH: It contradicts the evidence to the effect that today he says that the reason for killing Obed was politically motivated, he was under instruction of his MK commander, Gushu. In... (intervention).

CHAIRPERSON: But does that become a contradiction if he leaves it out then? It's a different thing if he said there, "I didn't act under orders", not so?

MR HATTINGH: Mr Chairman, I can do as much as I can. I think what I would like to say is, he contradicts his motive. In the one instance in his application his motive is one of self-defence, now he contradicts himself in his evidence today and his motivation was, he today gives it as being one of a command or instruction from his MK commander. That I, in my personal opinion, considered a contradiction.

CHAIRPERSON: But would you agree in the context it's not destructive of each other, not so?

MR HATTINGH: Mr Chairman, I cannot say more than in my opinion it in fact constitutes a contradiction of his intention.

CHAIRPERSON: Is it disputed that the two sides were attacking and killing each other?

MR HATTINGH: Mr Chairman, I have no instructions, I hold no instructions on behalf of the IFP or the Black Cats, so I cannot make any admission on their behalf. However, it is my personal opinion, and I made that clear from the very outset, from day one, that we can accept as a fact that there was a conflict, and that the two sides were fighting each other. That I accept in my personal capacity, acting on behalf of the particular clients and victims that I represent.

CHAIRPERSON: And if we accept that, then it follows that we must expect casualties on both sides, isn't it, and such casualties would be a result of the political conflict that you accept?

MR KHABA: Mr Chairman, one could expect anything at the time, but when you go ahead and you commit a murder and your only aim is revenge, the fact that it occurred in the same period, then that may be so, but your aim would still be revenge.

CHAIRPERSON: That's another matter. If your case is that the murder that he committed was a result of avenging the killing of his mother, it's totally another matter, but to suggest that in defending, as he says, in defending the community to which he was attached is in contradiction to what he says today, that he was acting in terms of an order, which order was in line with defending that community, then that's another matter. It's not as destructive as you suggest. But if your line of questioning is based on a possible revenge, so be it, and then you're allowed to proceed.

MR HATTINGH: Thank you, Mr Chairman. Mr Khaba, why did you never mention the fact that you were acting on the instructions of an MK commander when you killed Obed?

MR BLACK: May I object to this? You know, I'm finding it - if one looks at page 40, it's quite clear he states that he was a member of the African National Congress, in what capacity, he was in the Youth League. We then page to page 44.11(a), where you have these wheres and was's

"committed in the execution of an order or on behalf of or with approval of the organisation, institution or movement, state department or security force concerned"

He says it was on behalf of the ANC. So it's not correct to say that he does not say that these were motivated by or carried out on orders of the ANC.

ADV BOSMAN: Mr Black, in fairness to Mr Hattingh, I go along with the chairman that Mr Hattingh would perhaps be over-stretching the point to say that it's fatal or completely destructive, but if one looks at paragraph 11(a), the question there is also, "Who gave the order?", or with approval, let me just find it

"If known, the name and address of the person who gave such an order or approval."

My difficulty is that Mr Hattingh, as his ground for opposition, said that it was a revenge attack, and he is now cross-examining on another ground for opposition, that is my personal difficulty, but the question in my opinion, isn't it fair, if it was specifically asked and not replied to?

MR BLACK: As I read... (intervention).

ADV BOSMAN: Paragraph 11(b).

MR BLACK: That is so, possibly, but I wouldn't say this is the most inadequate application I've seen of people filling... (intervention).

ADV BOSMAN: I made it quite clear that I do not think that this would be fatal to the application of the applicant, but what I am saying is, in fairness to Mr Hattingh, the question is a fair question, but the problem is that Mr Hattingh indicated to the committee that his ground for opposition is that this was a revenge attack, and I cannot really make the link between the question and the revenge, unless Mr Hattingh now wants to change his... (intervention).

MR BLACK: Grounds.

MR HATTINGH: If I may proceed... (intervention).

MR BLACK: May I, before... (intervention).

MR HATTINGH: I think that, I'm speaking, Chairperson, thank you. The question that I asked was, why did Mr Khaba not mention the name and the fact that he was acting under the instructions of his MK commander, that was the question. There was an objection to my question. I don't think - we haven't sorted that out as yet, that's the one point. If you would like me to answer or respond to Mr Black's... (intervention).

CHAIRPERSON: You don't have to.

MR HATTINGH: Thank you.

CHAIRPERSON: Yes, Mr Hattingh, and that's why I have this grave difficulty with languages in this country, and a disregard for the level of education that we've gone through. Here is a person who says his mother language is Zulu. In his wisdom, he fills in a form in English. Can he be held liable for any defects in it? I mean to attack him for that, I'm not too sure whether it's really proper. That he didn't fill it in in Zulu may have been his mistake, but I don't consider that to be a matter that should be held against him. We don't know if he understood the question. From what he filled in there, I don't know if he did, it doesn't seem like it.

MR BLACK: Chairperson, may I just add this, by the time this application comes before the committee, there is a supplementary statement, and it seems to be totally ignored.

CHAIRPERSON: Mr Black, you seem to be missing the point. What Mr Hattingh is checking is his state of mind when he initially decided to apply for amnesty, and hence the question, but as I pointed out to him, we have a language problem here that cannot be put at the doorstep of this applicant, really speaking.

MR HATTINGH: Mr Chairman, I think what I intended to do was to, that's the idea of cross-examination, it's not only to try to break someone down, but to give him the opportunity of explaining things, and I'm actually giving this applicant the opportunity of explaining something which I am absolutely quite - certainly going to argue in the end, that if, what I'm going to argue in the end is that it is a fabrication that he was politically motivated, and the fact that he was instructed by Gushu was - this is something new that was just a fabrication of the event, and it is supported by the fact that he didn't mention it in his initial application. Now I give the applicant the opportunity of responding and explaining why he did not mention this very important fact. He went and he killed Obed because he was instructed, that's it.

CHAIRPERSON: Well would you agree that if his version was a fabrication, that it would have been a fabrication when he filled in this, that the embryo of the fabrication would have become existent when the form was filled in?

MR HATTINGH: No, sorry, I do not quite follow you, sir, sorry.

CHAIRPERSON: If the idea of an order, and that he followed an order and acted in terms of an order by whoever, is a fabrication, that fabrication would have been in existence already by the time he filled in this form, because he had already gone through his criminal trial, isn't it?

MR HATTINGH: Yes, but the whole issue of the instruction by his MK commander never came to light until very recently. At the time of his criminal trial, as well as at the time when he filled in this... (intervention).

CHAIRPERSON: I follow you, and you're almost right, but I'm asking you, would you agree that if you are correct and this whole idea of acting in terms of an order is a fabrication, it would have already been fabricated just before the filling in of this form. When do you reckon it was fabricated?

MR HATTINGH: I do not know when it was fabricated, but I, what I'm going to argue is that it was fabricated between the time that he filled in this application form and the time when his supplementary statement was prepared in 1998, so we're looking at between April 1996 and some time in March 1998.

CHAIRPERSON: Does it follow what he says in this application then is the truth? That's the third lie, or is that the third false version?

MR HATTINGH: Perhaps. Perhaps he became more clever as... (intervention).

CHAIRPERSON: As time went on?

MR HATTINGH: ...as time went on, yes.

CHAIRPERSON: That's stretching it. Mr Khaba, is there any particular reason why you did not, in your application, say that when you shot at the deceased, that you did so because of instructions from your commander?

MR KHABA: Chairperson, I'm not fluent in English, but I think if you have to scan the whole application, I don't think that I mentioned the person's name, but I've furnished a lot of detail with regard to the killing and everything pertaining to the killing.

CHAIRPERSON: Well, let me tell you that your writing isn't so good as well, I can't understand this. Will you take the time tonight to read through this application and tomorrow morning you point out to us where and what you said, and I'm going to give Mr Hattingh a chance to ask you about it. Is that okay? I'm going to adjourn to half past eight tomorrow morning, because we're finishing early.

COMMITTEE ADJOURNS

CHAIRPERSON: Mr Khaba, you are still under oath to speak the truth, do you understand that?

BONGANI WILBERFORCE KHABA: (s.u.o.)

CHAIRPERSON: Mr Hattingh?

CROSS-EXAMINATION BY MR HATTINGH: Thank you Mr Chairman.

Mr Khaba, if we turn to page 43 of the bundle, that is the page for your application in paragraph (b) you are, in terms of this application form, requested to write down your justification regarding the acts, omissions or offences associated with a political motive - objective, do you see that?

MR KHABA: Yes.

MR HATTINGH: Mr Chairman, I understand that when we adjourned last time Mr Khaba was given an exercise, a request to go through this document to explain why he did not specifically mention - but if ...[intervention]

CHAIRPERSON: No, that's not quite true. All I asked him to do was read through his document to ascertain what he said where and so that he would be in a position to answer the questions should the questions be directed in that line.

MR HATTINGH: Thank you Mr Chairman, I misunderstood.

Mr Khaba, perhaps we could just clarify this issue. Did you read through your application last night?

MR KHABA: That is correct.

MR HATTINGH: Sorry, what was the answer?

MR KHABA: Yes I did.

MR HATTINGH: Did you do it with the assistance of any interpreter?

MR KHABA: The people that I was with were helping me, explaining to me where I did not understand.

MR HATTINGH: What I mean is last night when you went through your application form, with whose assistance did you peruse the contents thereof, if you had assistance at all?

MR KHABA: Some of my inmates were helping me - Umlindo.

MR HATTINGH: Now do you now understand, full understand the full contents of your application?

MR KHABA: Yes.

MR HATTINGH: If we then look at paragraph (b) on page 43 where in terms of this form you are requested to indicate your justification for those acts - again I do not see any reference to Mr Gushu having given you the instruction, a specific instruction to execute Obed. Can you explain that?

MR KHABA: Yes it is not stated here. I would like for you to understand the position I was in when I wrote this statement. It is because I was in jail. I did try to get hold of a form written in isiZulu but I was not able to and only this English form was available. No explanation was forthcoming as to how to go about filling this form because I had just been granted this opportunity to apply for amnesty and I had to just fill in the form after which I did not realise that there would be a problem such that I went as far as writing the statement with my lawyer.

MR HATTINGH: At the time when you completed this application form did you understand at the time that you were required to ask for amnesty for certain incidents?

MR KHABA: Yes.

MR HATTINGH: And whatever and wherever you noted it on the form did you also understand at the time that you were required to state the reasons why you committed this particular act?

MR KHABA: Will you please repeat your question?

MR HATTINGH: When you completed this application form for amnesty - at the time when you completed this form, did you also understand that you were supposed to give the reasons for your actions for which you were applying for amnesty?

MR KHABA: That is why I have explained to you that I am not well conversant in English, there are some areas that I do not fully understand. That is why there was such a mistake in this form.

CHAIRPERSON: So you are saying that further to mention the actual instructor was a mistake?

MR KHABA: As far as I knew, I took it that every information that I have filled in was correct. I only realised now that it was a mistake because there was no clear explanation.

MR HATTINGH: But Mr Khaba you very well did give reasons for your actions at the time when you completed this application form and one of those reasons afforded to you at the time was that you acted in self defence because you were endangered, your life was endangered, that's why you shot at Obed, is that correct?

MR KHABA: That is correct.

MR HATTINGH: And another reason ...[intervention]

CHAIRPERSON: Let us just clear that. What do you mean by your life - you yourself or your group with which you associated?

MR KHABA: I am particularly referring to the life of the community including myself because I'm part of that community.

MR HATTINGH: On that night when you went to the disco, did you go to the disco to execute Mr Obed?

MR KHABA: I went to the disco to protect members of the community.

MR HATTINGH: This is also a fact which you did not mention in your application for amnesty, is that correct?

MR KHABA: I trust that there is an instance in the application form perhaps where I indicated that my life and that of the community were in danger.

MR HATTINGH: Mr Khaba, the question is - at the time when you went to the disco your reasons were, according to your own evidence, that you wanted to protect the community?

MR KHABA: That is correct.

MR HATTINGH: What I say is that again this is not set out in your application form?

MR KHABA: I trust there is a place where I have indicated that I committed this offence because the community was in danger because they were being attacked and harassed by members of the Black Cats.

CHAIRPERSON: Can you show us that part?

MR BLACK: May I just refer to page 44 - 11(b), this is possibly the word which Mr Hattingh couldn't make out yesterday. Third line

"they're trying to kill", then it's "us, the community and me." "Indube Tonight Disco"

MR HATTINGH: Is that where you noted that you went to the disco to guard the community, is that correct?

CHAIRPERSON: He didn't say that. He said he went to protect not guard. If you read that paragraph he explains what he did to protect the community.

MR HATTINGH: Mr Khaba, I put it to you that this whole version of yours that you had to go to the disco because of problems caused by the Black Cats at the disco and that you went there to protect the community is a fabrication of the event, is something that you thought out afterwards.

CHAIRPERSON: On what basis are you putting that Mr Hattingh?

MR HATTINGH: If you would allow me I will then first put the basis.

You sent through a criminal trial, is that correct?

MR KHABA: That is correct.

MR HATTINGH: Did you ever at any stage mention this version at the criminal trial, that you went to the disco to protect the community? I ...[indistinct] can assist you, you never did.

MR KHABA: I do not remember quite well what I said in court.

CHAIRPERSON: Even if he didn't, so what? In the circumstances he presented himself in that case, he said he was not guilty, not so? Could he have been expected to come say there "ja I went there and I was there and I protected the community"? He elected not to tell the truth so can he be expected to have put himself?

MR HATTINGH: Mr Chairman, I would argue yes. At the criminal trial this applicant did place him on the scene, he did make himself a part of the particular incident for which now applies for amnesty, but his reasons for doing it - at the criminal trial he gave other reasons. Whether they were the truth or not the truth I cannot say but at least it differs from his version today and the reasons for him going to the disco and that in itself I would submit is adequate basis for me to make the allegation and ask the question or put it to him that he in fact, his present version is a fabrication of the event. Mr Chairman ...[intervention]

CHAIRPERSON: Well why wasn't his version in the criminal trial found to be a fabrication?

MR HATTINGH: Mr Chairman, his version why he went there - there was no finding made with regard to that.

CHAIRPERSON: But wasn't he convicted?

MR HATTINGH: Absolutely, he was convicted but we have to remember that he did put himself on the scene and made himself part of the incident and he was convicted on that basis but his reasons, we are now dealing not with the incident but his reasons for going there and the reasons for ...[intervention]

CHAIRPERSON: Why couldn't those reasons have been a fabrication? Wasn't it indeed found to be a fabrication?

MR HATTINGH: Mr Chairman, no it wasn't found to be a fabrication and I think with greatest respect that I submit that I'm entitled to ask the applicant to explain to this Committee whether his evidence at the time for his presence on the scene, whether that was a fabrication or whether today's ...[intervention]

CHAIRPERSON: Well then you must ask that.

MR BLACK: Mr Chairman, I don't read the record the same way as my learned friend reads it. Mr Khaba didn't put himself on the scene, in fact he had an alibi that he was going to a funeral. It was a completely different story.

MR HATTINGH: Well just to respond to that, Mr Chairman, the applicant started out with an alibi, he pleaded an alibi, all the state witnesses were cross-examined and an alibi was put to all the state witnesses and once the applicant commenced his evidence the alibi suddenly went out of the window and he suddenly placed himself on the scene. So the alibi is, the applicant at the time of the criminal trial chose to relinquish his alibi and in fact place himself on the scene.

CHAIRPERSON: Put what you want to put.

MR HATTINGH: Mr Khaba, when you gave evidence at the criminal trial you placed yourself on the scene but you omitted to say you went to the disco to protect the community because the Black Cats were causing trouble there.

CHAIRPERSON: Just hold it, Mr Hattingh. What did he say? I can't recall what he said in the criminal trial. When he placed himself there what did he go there for?

MR HATTINGH: Mr Chairman, at the criminal trial he said that by chance and I can be corrected, by chance he passed the disco and that this incident occurred out of the blue with no reason whatsoever.

MR BLACK: Mr Chairman, I certainly don't have a transcript of the evidence given at the criminal trial. If my learned friend has a transcript of that evidence which was actually given by the applicant I would like to be placed in possession of a copy of that evidence.

CHAIRPERSON: Mr Khaba, in the criminal trial did you tell the court the truth there?

MR KHABA: No.

CHAIRPERSON: Why not?

MR KHABA: It is because I was aware that some of the charges for which I was being prosecuted were a fabrication, they were not as things occurred.

CHAIRPERSON: Let us be more specific then. In respect of the reasons why you went to the disco that night where Obed was shot at, did you tell the court in the criminal trial the truth?

MR KHABA: No.

CHAIRPERSON: Why not?

MR KHABA: It is because I was also represented by the State Attorney. Everything that was happening there was not the truth that is why I took up the opportunity to come before this Commission to apply for amnesty.

CHAIRPERSON: Now you've come to give this Amnesty Committee another version as to why you went to the disco?

MR KHABA: That is correct.

CHAIRPERSON: Is that the truth?

MR KHABA: That is the truth.

CHAIRPERSON: Now if it were put to you that what you're telling the Amnesty Committee is a story you're making up and it's fabricated, what would your response be to it?

MR KHABA: I would say that's a very big mistake because things are as I explained them before this Commission. I cannot mislead the Commission when I indeed am applying for amnesty.

CHAIRPERSON: Yes, Mr Hattingh?

MR HATTINGH: Mr Khaba, can you then tell this Committee when did you come up or first disclosed this version that you went to the disco for the purpose of protecting the community?

MR KHABA: How? I don't understand.

CHAIRPERSON: At the very latest it's the 24th April 1996 and he was at Barberton.

MR HATTINGH: At what stage did you first disclose that there were problems at the disco and that was the reason why you went there?

MR KHABA: When did I start to indicate that there's a problem at the disco, is that what you're saying?

MR HATTINGH: The question is - when did you first disclose to anyone that your reasons for going to the disco were that there was a problem, the Black Cats were causing trouble at the disco?

MR KHABA: I told my lawyer this and also the people who used to accompany me very well knew that there was a problem in the township and may I as well indicate that the disco is the place where the Black Cats were very strong and therefore members of the community were not moving freely around these places.

CHAIRPERSON: Mr Hattingh are you - is it your case that there were no problems at the disco that night?

MR HATTINGH: Yes Mr Chairman.

I put it to you that this version that there were problems at the disco that night is a fabrication of the event. Evidence will be led to the effect that there were no problems whatsoever and that you came to the disco and you caused the problems there. What is your response to that?

MR KHABA: I am saying that is not correct, that is because I was personally present on the scene. Everything is as I have explained it, not fabrication.

MR HATTINGH: I agree with you, the moment you arrived at the scene at the disco problems were there, that is correct yes, because you caused the problems. Prior to your arrival there were no problems?

MR KHABA: That is not as you put it.

MR HATTINGH: Mr Khaba, is it correct that in 1992 you also made statement to your own attorney with regard to this incident where you were arrested for the murder of Obed?

MR KHABA: Which attorney are you talking about?

MR HATTINGH: Did you make a warning statement when you were arrested for the crime the killing of Obed?

MR BLACK: Mr Chairman, I don't have any knowledge of this. Are we again going into a situation where documents are available to Mr Hattingh which haven't been made available to me?

CHAIRPERSON: Before we go on at this now, are you still pursuing the same point that he didn't make mention of the reasons why he went to the disco?

MR HATTINGH: Yes I do.

CHAIRPERSON: How far is it going to get you? I think the horse is dead already.

MR HATTINGH: Mr Chairman, it all depends on which horse is dead.

CHAIRPERSON: There is a saying of flogging a dead horse.

MR HATTINGH: Yes what I would like to put to this witness ...[intervention]

CHAIRPERSON: I hope you're not talking of flogging two horses.

MR HATTINGH: The applicant I would submit did not give a plausible explanation why he suddenly came up with the political motivation that he received instructions from Gushu to execute Obed and my submission would be that this is a fabrication of the event to place him within the ambit of the Act for Amnesty.

CHAIRPERSON: Now that document you want to use to do that -was that that the statement to his attorney?

MR HATTINGH: Yes.

CHAIRPERSON: Isn't it privileged?

MR HATTINGH: Not once he made it available to the police as part of his warning statement.

CHAIRPERSON: Is that the case?

MR HATTINGH: That is the case he, when requested for a warning statement, he said I've already made a statement with my attorney and I would like to have this statement which I have made with my attorney to be annexed to my warning statement and we could just confirm it with the applicant that that in fact was the position.

Mr Khaba, was that in fact the position at the time that you were requested to make a warning statement when you were arrested for the murder of Obed that you told the police that you did not want to make a further statement, that you had already made a statement to your attorney and you then made your statement to the attorney available to the police. Is that what happened in 1992?

MR KHABA: I told the police that I will not write any statement with them but instead with my lawyer.

MR HATTINGH: So you did make a statement with your lawyer at the time?

MR KHABA: I did not make such a statement with my lawyer.

MR HATTINGH: I may just put it to you, I don't think we have to take it much further but in this statement ...[intervention]

CHAIRPERSON: He said he didn't make a statement to his lawyer. As far as he's concerned nothing like that exists.

Aren't you stuck with that answer Mr Hattingh?

MR HATTINGH: Mr Chairman, perhaps I can refresh the memory of the applicant when I show him the document, perhaps he could tell us whether the signature at the bottom of the statement is his or not?

MR BLACK: Mr Chairman, may I just once again - I thought this point has been made clear. Why do we as my learned friend on my left here, Mr Patel say, why do we have to conduct this as a - by way of, almost by ambush - why haven't I been given copies of this? Why weren't we told - it's repeatedly been made clear to Mr Hattingh and to everybody that there must be full disclosure of documentation. I need to talk - I need to consult with the applicant, I can't have the applicant coming here and being confronted with documentation which I certainly haven't had sight of and I should imagine that when Mr Hattingh came here this morning he would have - it was his intention to use this document. I really, I certainly object - I mean we can't carry on like this, I don't know what more one can do.

CHAIRPERSON: Mr Hattingh, before I deal with that, where is this getting us?

MR HATTINGH: Mr Chairman, from the outset I indicated that this applicant, his application will be opposed on the basis that his motive for committing this crime was not particularly motivated, his aims were not politically motivated so where I'm heading to is to show that his present version is a fabrication and whatever he said before never included a political motivation.

CHAIRPERSON: But one of the means, one of the aspects you want to use doing that is a document he denies making. How do you propose to go further on that document?

MR HATTINGH: I propose by showing the document to the applicant and asking whether the signature on the document is his and whether he now, having his memory refreshed, remember this document. If he still says no, this is ...[intervention]

CHAIRPERSON: Mr Hattingh, even if it is his signature are you going to go about now trying to prove that document?

Can he tell you that was recorded there was absolute - correct?

MR HATTINGH: Mr Chairman, once again I respectfully submit the questions that are being put to me now are the very questions that the applicant need to answer.

CHAIRPERSON: It's put to you. I would hardly think that the applicant could answer. You're the trained person not the applicant. Are you going to try to prove that document as if we were in a criminal trial? If he should say that that is his signature, you going to call the attorney who recorded that document?

MR HATTINGH: Mr Chairman, no I have no intention of doing that. Perhaps I could then just explain to the Committee what I would like to do. I would like to put this document before the document, ask him whether this is - whether he - to have a look at it, refresh his memory, look at his signature. If he tells us that this is not his statement at the time, I will accept it. If he tells us that yes, now with his memory refreshed this is his statement at the time, I will ask him one question and the question will be is why did you never in this statement make mention of the fact, why you put yourself on the scene on the statement and you put yourself, make yourself part of the incident on the scene - you never make mention in this statement to your attorney about the fact that you acted that evening on the instructions of Gushu or the MK Commander or whatever command system of the ANC to execute Obed.

CHAIRPERSON: Mr Hattingh, you missed the point I make. I want to say it's time for us to take cognisance of the fact that there's a large proportion of the community in this country who can't use the English language properly. He said so on numerous occasions. How is he going to be able to confirm that that document is recorded correctly and then are you going to call in interpreters that interpreted that document and the recorder of it etc?

Mr Hattingh, you seem to have some support on the panel. Hand that document over to the witness.

MR HATTINGH: Thank you Mr Chairman. I may ask also the same time while this is being handed to the applicant some indication or assistance from your Committee as to under what ethical conditions this hearing is being conducted, I see Mr Black is communicating and discussing the matter with the applicant while he is under cross-examination. I do not know whether this is unlike another ...[indistinct]

CHAIRPERSON: I didn't see it but it's wrong, Mr Black should have know better.

MR BLACK: Mr Chairman no, what I wanted to ...[intervention]

CHAIRPERSON: Well that's irrelevant what you wanted to do. At the very least you should have asked permission and draw our attention to the fact that you wanted to communicate to the witness - he's under cross-examination.

MR BLACK: I apologise for that - what I just wanted to find out if ...[intervention]

CHAIRPERSON: I'm not interested in that Mr Black, please don't let it happen again.

MR BLACK: Mr Chairman, may I read - look at this document before it's handed to the client?

CHAIRPERSON: Can you hand it to the witness please?

Mr Khosa ...[intervention]

MR KHABA: Khaba.

CHAIRPERSON: I'm told that there's a signature at the foot of that page, can you see it?

MR KHABA: Yes.

CHAIRPERSON: Is that yours?

MR KHABA: No, this is not my signature.

CHAIRPERSON: Well that's the end of the matter.

MR HATTINGH: May I have the document back please?

CHAIRPERSON: Mr Patel, it doesn't look like we're going to proceed without that document trooping back from whence it came.

MR PATEL: Mr Chairman, I think as being part of the team that represents applicants, there's been an attempt to use this document, surely we ought to be able to examine it?

CHAIRPERSON: I know and you can approach Mr Hattingh during one of the breaks please. I want to get on with this business.

MR PATEL: As it pleases you Mr Chairman.

CHAIRPERSON: Yes you would be entitled to because he ...[indistinct]

CHAIRPERSON: Mr Hattingh I hope you haven't got more cards up your sleeve?

MR HATTINGH: Mr Chairman, as far as documentation is concerned I do have - I think had in my possession copies of the witness statements pertaining to that incident but they are my clients so I will quote from them but I don't think it's necessary for me to make it available but at the same time if you allow me I think if there's anything to be said about full disclosure and advising other parties involved in this hearing about documents, I think the finger is not supposed to be pointed at me but supposed to be pointed at the applicant and his legal representative. If they wanted to make full disclosure of all relevant facts, documents, everything pertaining to the application then they should be the one to be under the obligation to make available those documents to us not for us to try to get it from somewhere else and then once we are confronted with them then they can say well we didn't prepare properly for this hearing because we don't have all those statements that our client made in preparation for this thing.

CHAIRPERSON: You know, Mr Hattingh, the person I regard as the best passer of the ball is retired from rugby long ago - Naas Botha. It doesn't help to deflect that. You produced a document suddenly - all I'm asking and the panel is of the view that it shouldn't happen again. You had an opportunity this morning or yesterday or whenever you got that thing into your possession to produce it to the other side, indicate to them what you intended to use it for so that they can consult about it - we wouldn't have to waste all this time trying to find out and finally find out that it's not his signature.

MR HATTINGH: As you please.

MR BLACK: Mr Chairman, we have had a pre-trial conference at the beginning, I want ...[intervention]

CHAIRPERSON: Mr Black, I think I've said enough, I think Mr Hattingh has taken the point, let's proceed. It's seems like on two occasions I've asked and I've made special pleas - it seems you people are not interested in the communities welfare.

MR HATTINGH: Mr Khaba, I would like to refer you to page 204 of the judgement of Judge ...[indistinct] made at the time when you were convicted for the crimes that you're now making application for. I would like to refer you to the middle of the page, approximately line 16 and that will also be the evidence of witnesses to be called on behalf of the victim, that you got - it's there stated on line 16 page 204 - that when you got to the disco you approached Obed or Obed and his friends and you indicated and you said "Pappa ek soek Obed" -"Pappa I'm looking for Obed" perhaps words to that effect in your own language. What is your response to that?

MR KHABA: I don't know anything about that.

MR HATTINGH: I put it to you that in fact that you went to the disco with - perhaps before I go on, I'll put this to you - is it correct that your mother was also killed a few weeks, approximately six weeks previously?

MR KHABA: That is correct.

MR HATTINGH: Is it further correct that both Obed Nhlabathi and someone else were arrested for the murder of your mother?

MR KHABA: I only heard about Obed's arrest from the police.

MR HATTINGH: Just to put it in perspective is it correct that your mother was killed the very same night that Chris Ngwenya and his companions were involved in an incident where he got killed?

MR KHABA: Yes.

MR HATTINGH: And is it further correct that you killed Obed during the night of the 29th May 1992?

MR KHABA: That is correct.

MR HATTINGH: Approximately six weeks after your mother had been killed?

MR KHABA: Even though I am not sure how many weeks had lapsed but yes, such a thing did happen.

MR HATTINGH: And is it further correct that on that Sunday morning after the Saturday night when your mother was killed you together with the police and other people from the ANC went to the house of the brother of Chris Ngwenya?

MR KHABA: Would you please repeat your question?

MR HATTINGH: Chris Ngwenya and your mother were killed on the Saturday night, that was on the 12th April 1992, is that correct?

MR KHABA: That is correct.

MR HATTINGH: The following day, the 13th April 1992, you together with some of your colleagues in the ANC, your comrades, together with the police and the police vehicle went to the house of either Chris Ngwenya or his brother but you had a discussion or there was a discussion between Mr John Mndebele and the brother of Chris Ngwenya on that Saturday morning and you were present?

MR KHABA: No, I don't know anything about that, I hearing it from you for the first time now.

MR HATTINGH: From the side of the victims there are witnesses available, I just want to put it to you that they will state and they will testify that in fact that you were present on that Sunday morning with other ANC comrades as well as the police when Mr John Mndebele had a discussion with the brother of Frans Ngwenya - Chris Ngwenya - and at that time you indicated to other people, let's call them IFP people, the friends of Chris Ngwenya, that you were going to kill five of them?

MR KHABA: Everything that is being said here is a pack of lies because at the time when my mother died I was still at the Goldstone Commission in Johannesburg. I came back and I went back I think it was on Wednesday and everything that is being said here is new to me.

MR HATTINGH: Were you aware of the fact that Chris Ngwenya was also to testify before the Goldstone Commission on that Monday, two days after his untimely death?

MR KHABA: I did not know that.

MR HATTINGH: Can you tell the Committee, who shot first at the Dube Disco that night?

MR KHABA: It was the very same Black Cat members.

MR HATTINGH: Which one of them?

MR KHABA: Even though I cannot remember very well but the one person that I knew to have been a very strong fighter was Gushu himself.

MR HATTINGH: Were both you and your companions armed with firearms?

MR KHABA: It was only myself armed with a firearm.

MR HATTINGH: When you shot at Obed at the disco, what was your reason for doing so?

MR KHABA: We were being pursued and shot at.

MR HATTINGH: That was your only reason?

MR KHABA: Yes and that is because the community was - members of the community at the disco and they realised that we were the people who would come and assist and they decided to pursue us, shoot at us and as a result of our being pursued Obed died a distance away from where we were being pursued from.

MR HATTINGH: If you could just explain that - Obed died a distance away from where you pursued from? I do not quite understand that?

MR KHABA: Exactly, we were at the disco when we left, they pursued us and I ultimately got an opportunity to draw my gun and I fired.

CHAIRPERSON: ...[inaudible] away from the disco when you did fire?

MR KHABA: I think it can be fifty to hundred metres.

MR HATTINGH: I just need some clarification on an issue with regard to the Goldstone Commission - you went to the Goldstone Commission, testified before the Goldstone Commission, came back to Ermelo and then went back to the Goldstone Commission and once again testified there, is that correct?

MR KHABA: When I was invited by the Goldstone Commission to go and give some testimony in Cape Town, I went to Cape Town and I asked to come back to see my family and then I arrived home. That's when I heard the news - that's when I decided to go back to the Goldstone Commission, I had just gone back to see my family.

MR HATTINGH: Was it in this interim period between your two appearances at the Goldstone Commission that you heard that your mother died and that you killed Obed?

MR KHABA: Can you please explain what is your point?

CHAIRPERSON: When you came back from the Goldstone Commission to visit your family is it then that you found out that your mother had been killed?

MR KHABA: I was phoned that my mother had been killed so I got the message over the phone before I even reached home.

CHAIRPERSON: Yes, then you left back to the Goldstone Commission?

MR KHABA: When I heard that my mother had been killed I was approached by the lawyers for human rights and they said that they were going to take us to Ermelo but we were going to come back that very same evening.

CHAIRPERSON: Any case, at some time thereafter you went back to the Goldstone Commission, not so?

MR KHABA: That is correct.

CHAIRPERSON: But the time you returned to the Goldstone Commission was Obed dead or alive?

MR KHABA: Could you please repeat your question?

CHAIRPERSON: At the time you went back to the Goldstone Commission was Obed alive or dead?

MR KHABA: Yes Obed was still alive.

CHAIRPERSON: Yes.

MR HATTINGH: Is it only after your return on the second occasion on the Goldstone Commission that you killed Obed?

CHAIRPERSON: A simple application of logic would prove that.

MR HATTINGH: Thank you Mr Chairman.

When did you receive the instruction from your MK Commander Gushu to kill Obed?

MR KHABA: When I'd come to visit my place I told Gushu about the remaining members of the Black Cats who were a problem and during that discussion we were told that we should join the self defence unit and that is when the instruction came.

MR HATTINGH: Was that then before you went back to the Goldstone Commission for the second time, for your second appearance, that you received the instruction from Gushu?

MR KHABA: I was told that by Mr Gushu before my mother died or before she was killed.

MR BLACK: Mr Chairman, perhaps just for the assistance for everybody if I may just give some of the chronological events. This gentleman testified before the Goldstone Commission for the first time in the first week of March 1992 and then he was - his cross-examination was reserved for a later stage and he came back on the 7th April and the 8th April and on those days he was cross-examined again. It was only quite some time later that this murder took place and at that stage he was still in the care of the lawyers of the Weekly Mail who then voluntarily - and he voluntarily surrendered himself to the police at that stage for the murder. Just to give an idea of the time and dates that's applicable here, as you please.

MR HATTINGH: Mr Khaba, have you heard now the last time you appeared with the Goldstone Commission was on the 7th and the 8th April 1992 - that is there was a few days before the death of Chris Ngwenya and your mother?

MR KHABA: Could you repeat your question?

MR HATTINGH: We were advised that you first appeared before the Goldstone Commission the first week of March 1992 and you testified before the Goldstone Commission then. You then returned to the Goldstone Commission and your appearance there was completed during the period 7 - 8 April 1992. That was four days before Chris Ngwenya and your mother was killed.

MR KHABA: I think you must not overlook the fact that when I was giving testimony the Goldstone Commission - I was under witness protection. I would only come here per special permission even if the Goldstone Commission didn't require me to render testimony I would be in Johannesburg because I was under witness protection.

MR HATTINGH: I'm not going to take this any further, could you just confirm that you attended the funeral of your mother?

MR KHABA: Yes I did.

CHAIRPERSON: We all feel like that Mr Hattingh.

MR HATTINGH: Mr Chairman, if you would bear with me for one moment, let me just go through my notes? Thank you.

Although no reliance can be placed per se on whatever Judge Goldstone found at the time of his Commission with regard to the Black Cats, he did make a finding that you as well as the other people who testified about the activities of the Black Cats that your testimony was wholly unsatisfactory and unacceptable. What is your response to that?

CHAIRPERSON: How relevant is that, Mr Hattingh? What he thought or what he thinks of Goldstone's view, how relevant is that here? What are you going to do if he says he doesn't care for it?

MR HATTINGH: Mr Chairman, I think I commence my question by stating that although it has no value as such I think it will make more ...[intervention]

ADV BOSMAN: Matters for argument, are you not putting matters which are matters for argument to the witness, Mr Hattingh?

MR HATTINGH: Mr Chairman, once again I would submit that the purpose of cross-examination is not to confront and to break down the witness but to allow the witness of the opportunity of explaining things and what I'm doing now is giving him the opportunity of explaining something which is bothering us.

CHAIRPERSON: How is he going to explain what Goldstone found? Goldstone made those findings, rightly or wrongly, how can he explain it? The likely scenario is that he is going to say well I don't accept what Goldstone says and you yourself say you can't place the reliance of it so of what value is it?

MR HATTINGH: Mr Chairman I'll leave it at that.

I would like to put it to you and my instructions are that Jwi Zwane, the person that you say was the leader of the Black Cats, that he in fact did not partake in killings and the terrorising of the community and that there was no reason for him to be eliminated?

MR KHABA: It's the very first time that I hear such a statement. As a person who was there, who can vouch as to Jwi's behaviour and how he terrorised the community I think I've got better knowledge than you.

CHAIRPERSON: You were part of that what turned out to be the Black Cats at one stage, isn't it?

MR KHABA: That is correct I was a member.

MR KHABA: And was Zwane part of it?

MR KHABA: That is correct, he was the leader even during the time when I was the member as well as Chris.

CHAIRPERSON: So he was your leader at that time?

MR KHABA: That is true.

MR HATTINGH: Did you take part in any decision making with regard to the killing of Chris Ngwenya?

MR KHABA: Could you repeat yourself please?

MR HATTINGH: Did you take part - or perhaps I should rephrase the question - did you play any part in providing information which led to the killing of Chris Ngwenya?

MR KHABA: What I said is what was happening that Chris as well as Jwi were the people who were killing members of the community and they were the people who were sending members of the Black Cats to attack the members of the community, this what I told Mswande Gushu.

CHAIRPERSON: This applicant has not made application in respect of Ngwenya?

MR HATTINGH: Mr Chairman, for that very reason I rephrased my question because I think my first question indicated that I was implicating him in the decision making. My second rephrased question was did he provide any information which ultimately led to Chris Mgwenya being killed.

CHAIRPERSON: Are you trying to implicate him now or are you risking his implication, not so?

MR HATTINGH: That is not my intention, that's why I rephrased the question.

CHAIRPERSON: Whether it was your intention or not is irrelevant, the fact of the matter he is at risk now, isn't it? What if he had to say yes? Let's be careful about that, he's not made application for that.

MR HATTINGH: As it pleases.

Mr Khaba, could you just explain this mistake in your statement, the supplementary statement, about you going to the hospital where Obed was and where you stabbed him to death?

CHAIRPERSON: Whose mistake was it in the first place. Was that yours or somebody else's?

MR KHABA: What mistake are you referring to?

CHAIRPERSON: In your statement, the typed statement, it says that Obed was finally killed in hospital by being stabbed. You have said that that is not so, you shot him and that if anybody has said it's stabbing then it's a mistake. Whose mistake was that, was it yours?

MR KHABA: It's possible that it's the person who was writing the statement because when I submitted the statement I stated it clearly that I shot him.

CHAIRPERSON: So it's somebody else's statement - mistake?

MR KHABA: It could be somebody else's fault either the typist or the writer of the statement.

CHAIRPERSON: Well then that question should be directly directed at somebody else not the witness, isn't it so?

MR HATTINGH: Perhaps you will then be able to just answer this question. This statement, the supplementary statement which was made available to the TRC, the Amnesty Committee, by telefax on March 13, 1998 was only signed yesterday or the day before, is that correct? Signed by yourself?

MR KHABA: I don't understand which statement you're referring to.

MR HATTINGH: If you take the bundle of documents and you look at page 47 to page 57.

CHAIRPERSON: So what, Mr Hattingh, what's the point?

MR HATTINGH: Mr Chairman, this applicant confirmed as recent as a day or two ago that the contents of this statement is correct and he was - I think it became clear from the Chair that Mr Black was requested to prepare himself adequately or properly by going through the statements with his applicant.

CHAIRPERSON: How was Obed killed, what's the factual situation, what's the truth? Was he shot or stabbed or both?

MR HATTINGH: That is exactly the point, Mr Chairman, he was only shot while there were only two shot wounds.

CHAIRPERSON: And this witness says he shot Obed and he didn't stab, so what's the point? Is it the truth or is lying with the truth?

MR PATEL: Mr Chairman, if I may be of assistance perhaps. When he was giving his evidence in chief, if I remember well, when clarifying this issue of stabbing, he said he shot him and then he went on to say Livingstone stabbed him. I don't know whether I heard him well but that's what I recall.

ADV SANDI: That is my recollection as well. Perhaps that might not be the issue from the point of view of Mr Hattingh, not so?

MR HATTINGH: Well I am in fact dealing with that situation and his recollection and his evidence in that regard and my intention is to assist this Committee to get to the truth and I believe in doing so one should try to confront or cross-examine the applicant on things that are not on the surface of it appear not to be the truth and let him explain it.

CHAIRPERSON: Mr Hattingh, if you look at the document which you referred him to, he says Obed was located and was killed by stabbing - he then corrects that and say by shooting or shot and he was shot. The actual position is then he further stated in his evidence that if he was stabbed, he doesn't know about it, if he was stabbed then it could only have been done by Livingstone. That's what he said. You tell me now that the only wounds found on the body of Obed was two gunshot wounds. Isn't the amendment that he makes in his evidence in chief correct?

MR HATTINGH: Mr Chairman, perhaps the only point I would like to make which I will hopefully in the end would like to argue is that very little reliance can be placed on whatever he stated in his statement because whatever suits him, he stated there although he may very well not even know what he stated in this document because he can't read English according to him and what doesn't suit him is being changed.

Mr Khaba I put it to you that what is put in this statement is not - you're not always the source of the information of what is put in this statement and whatever doesn't suit you is being changed to suit the requirements of the Act for you to get amnesty?

CHAIRPERSON: Well let's deal with this one by one, is that every answer you give on that double barrelled question you're in trouble. It's been put to you that whatever is contained in the statement is not totally forthcoming from you. What do you say about that?

MR KHABA: Whatever is written in here is the true testimony of what I experienced, what I did and what I was involved in.

CHAIRPERSON: And secondly it's been put to you that you change your version to suit yourself as and when necessary?

MR KHABA: I wouldn't have time to do that.

CHAIRPERSON: Yes, Mr Hattingh?

MR HATTINGH: Thank you Mr Chairman.

Just to regard to your statement about the stabbing of Obed which you rectified by stating that it was in fact that you shot him. The post mortem indicates that there were no stab wounds on his body. Could you just explain your version then that your partner stabbed the deceased as well?

CHAIRPERSON: He didn't say that he stabbed him, he said if there are stab wounds then it could only have been Livingstone.

MR HATTINGH: Thank you Mr Chairman.

If you could just then explain, did Livingstone try to stab Obed while he was lying in his hospital bed?

MR KHABA: I'm not clear, I do not have any clarity to that effect.

MR HATTINGH: Yes, Mr Khaba, that is in fact the problem I have with your evidence. You were present, you killed Obed by shooting him twice through the head is that correct? That was in the hospital.

MR KHABA: That is correct.

MR HATTINGH: Livingstone went with you to the hospital when you committed this?

MR KHABA: That is correct. We were together and he has presently submitted an application for amnesty and whatever question that pertains to Livingstone I think you can pose to him and not me.

MR HATTINGH: I would just like to put it to you that your memory and recollection is very selective. To what suits you you're prepared to tell this Committee. What doesn't suit you and when you have problems you would rather not talk about it and be forthwith and make full disclosure to this Committee.

CHAIRPERSON: Do you think that's a fair proposition, Mr Hattingh, you put it to him or you ask him whether he saw Livingstone stab or attempt to stab Obed. It presupposes that there are two non-existent stab wounds or many more stab wounds on the body of Obed. Those are not the factual issues. It was sometime during his evidence in chief the issue whether the deceased was stabbed or not came up and his simple answer was - look I don't know about it but if there are stab wounds on that body it could have been Livingstone or it could only have been Livingstone who had inflicted it. The fact of the matter is there are no stab wounds.

MR HATTINGH: Mr Chairman, I accept that but however, the source of allegations regarding stabbings is the applicant.

CHAIRPERSON: But you say so - he says it's a mistake, he never spoke about stabbings. It's a mistake on the part of the person who recorded the statement or who typed it. That's what he says, he says he never mentioned stabbing.

MR HATTINGH: Mr Chairman, if you would just allow me, I'm not going to take it much further, if you would just allow me. On the paper, on the face of it, on the document which was signed and confirmed two days ago by the applicant he makes mention of stabbing.

CHAIRPERSON: ...[inaudible]

MR HATTINGH: I accept that but just as a background, he makes mention of stabbing. When he testifies he is confronted with this conflicting part of evidence between his oral evidence and his statement. He then explains it but at the same time his legal representative makes mention of another statement in which the applicant tells us that there were stabbings and shootings and then thirdly he tells us that if there were stabbings then that was done by Obed and all I wanted him to do, the applicant, is to clarify the issue, tell us when they went there did Obed take a knife with him. What was there plan, what did they plan to do - was this applicant going to shoot Obed, was there any discussions with regard ...[intervention]

CHAIRPERSON: What gives rise to your suspicion there was a knife. There's no stab wounds on the body. Why should you be able to ask questions on stabbing when there's no factual basis for this?

MR HATTINGH: Mr Chairman, the problem that I'm experiencing is that we are dealing with a lot of evidence, a lot of versions, a lot of information and we're now picking out bits and pieces which would support the applicant in his application for amnesty and I think we should have regard to the bits and pieces which tend to indicate that this applicant is not telling the truth and we should cross-examine him on those bits and pieces which are substantial, which show that this applicant is not making full disclosure.

CHAIRPERSON: Mr Khaba, do you know of any stab wounds that were inflicted on the body of Obed, before or during or after the murder?

MR KHABA: Chairperson, what happened at the hospital happened within a short space of time because the hospital is quite close to the town or it's within the city and when I had taken out the gun I just shot Obed and whatever happened thereafter I cannot testify to.

CHAIRPERSON: Now do you know how the issue of stabbing was printed in your statement? Not the one you wrote, the one that was typed. Have you any idea?

MR KHABA: When I shot Obed or when Obed was shot for the first time at Extension, he was stabbed - I think that's when I mentioned the stabbing.

CHAIRPERSON: When he was killed, when you shot him, when you killed him?

MR KHABA: When he was shot at Extension before he got killed.

CHAIRPERSON: When he was at the hospital. When you and Livingstone went to the hospital? That's what I'm talking about.

MR KHABA: No I have no knowledge of any stabbing with regard to the incident at the hospital. Even if it did happen I may never have witnessed it.

MR HATTINGH: Mr Khaba, I want to put it to you that you went to the hospital for the sole purpose of killing Obed because of revenge not because of a political motive, because to revenge the death of your mother?

MR KHABA: I would like to clarify you, Mr Hattingh. When I was told that my mother had been killed, nobody said it's Obed who killed my mother. It's the Black Cats who killed my mother and now I don't know whether you're trying to tell me that Obed killed my mother, I'm hearing it for the very first time and if it was a revenge killing, I was going to kill each and every single member of the Black Cats.

MR HATTINGH: Are you aware of the fact that someone was in fact charged with the murder of your mother and convicted?

MR KHABA: Yes I'm aware of that.

MR HATTINGH: That was Mtuduzi Mtauw, is that correct?

MR KHABA: Yes that is so.

MR HATTINGH: Well I just put it to you that both Obed Nhlabathi and Mtuduzi Mtauw were charged with the murder of your mother and they were awaiting trial but on bail at the time when you killed Obed?

MR KHABA: Could you please repeat your question?

CHAIRPERSON: Do you know whether Obed was being charged of the killing of your mother?

MR KHABA: That I only became aware of when I was appearing in court with regard to this very same matter that I'm serving sentence that I'm serving sentence for. I got the information from the police at that stage.

MR HATTINGH: Mr Khaba, would you really want us to believe that you at no stage during those six weeks between the death of your mother and the death of Obed make any investigations whatsoever to try to find out who was responsible for the killing of your mother?

MR KHABA: I realised that it wasn't going to serve any purpose because even if I did get or I was told as to who killed my mother that was not going to bring my mother back.

CHAIRPERSON: Mr Hattingh, I must draw your attention to the fact that I'm pretty close to invoking Section 34.2 of the Act.

MR HATTINGH: Thank you for the warning, Mr Chairman.

CHAIRPERSON: I just want to go briefly through your supplementary statement and just clarify certain issues. On page 48, paragraph 3, you say that

"I personally testified before the Goldstone Commission and I provided the Commission with all the details which were within my personal knowledge relating to the political turmoil, the murders and attacks carried out by the Black Cats" and so forth.

There's only one question in this regard - at the time when you made this disclosure to the Goldstone Commission did you also tell the Commission about the atrocities of the ANC people?

MR BLACK: Is this relevant, Mr Chairman? Honestly.

CHAIRPERSON: Where's that getting us, Mr Hattingh?

MR HATTINGH: Mr Chairman, we have a supplementary statement which deals with the background to this applicant's application. Now he makes the allegation, if we consider this part not to be relevant then it should not have been part of the application on the supplementary statement but once it is made part of the supplementary statement and it's application then I would, with respect, submit that I'm at least entitled to just ask questions about these supplementary statements.

CHAIRPERSON: But he didn't talk about the ANC's atrocities as you call it. It's not part of his statement.

MR HATTINGH: It's for that very reason that I'm asking him why he left out any atrocities of the party that he belonged to at the time.

CHAIRPERSON: You presumed that the ANC here committed atrocities?

MR HATTINGH: They already attested to that effect and all the applicants made in fact submissions and they make application for atrocities.

MR BLACK: Mr Chairman, Mr Hattingh has already ...[intervention]

CHAIRPERSON: I'm busy talking, I'll give you an opportunity now. Where was I - yes, the atrocities that we're discussing now - do you expect him to have mentioned it to the Goldstone Commission - is it so surprising that he didn't?

MR HATTINGH: Mr Chairman, in the end I would very well argue that it is surprising that he elected to tell the truth and make disclosure very - only to - with regard to certain people and not give a full clear picture and tell the full and whole truth.

CHAIRPERSON: I might remind you that presently a lot of high profile people are guilty of the same thing.

MR HATTINGH: Mr Chairman, I'm not representing them at this moment, all I can say is that although that may be the case it does not allow this applicant to hide behind the fact that high profile people may very well be in the same position.

CHAIRPERSON: I'm going to allow the question but I'm going to be wary of it and I'm going to curtail you.

Mr Black, what did you want to say?

MR BLACK: Mr Chairman, I think it was indicated earlier by Mr Hattingh that he holds no brief for the IFP or Inkatha or anybody, he doesn't represent anyone. I just can't see the relevance of this form of questioning.

CHAIRPERSON: See where it gets us to.

MR HATTINGH: Mr Khaba, I only have one question in this regard. Did you make full disclosure to the Goldstone Commission about ANC or MK atrocities of which we have heard, some of which we have heard about at this application hearing? And the answer could only be yes or no.

CHAIRPERSON: Well Mr Khaba, obviously you did not, isn't it? You didn't tell the Goldstone Commission what the ANC people were doing?

MR KHABA: That is correct.

CHAIRPERSON: You've got your answer.

MR HATTINGH: Thank you Mr Chairman.

MR KHABA: ...[inaudible] of Obed Nhlabathi, I just want to make sure that I'm putting to you all the facts pertaining to the allegations and I - in line with my instructions and I turn to page 55 of the bundle of documents.

I'm putting it to you, line 2, that the Black Cats or the group of which Mr Chris - of which Mr Obed Nhlabathi was part that evening at the disco were not harassing people at the disco in Ermelo? What's your answer?

MR KHABA: That is not so.

MR HATTINGH: Furthermore, it was not the grouping of Mr Obed Nhlabathi who started shooting, it was in fact you who started shooting.

MR KHABA: That is not so.

MR HATTINGH: Then if we turn to page 56, line 4, where you say

"As a member of the STU's I consider that the orders which I received from the MK Commander"

that paragraph:

"To eliminate the leaders of the Black Cats gang was a legitimate and reasonable order having experienced and seen for myself the atrocities"

I just put it to you that this is a fabrication that you committed this crime of killing Obed because of revenge for the killing of your mother.

MR KHABA: Could the speaker be slower, the interpreters are interpreting, not reading.

CHAIRPERSON: You say that you killed Obed as part of the liberation struggle and in the fight of the Black Cats - it's being put to you that that is false and what in fact happened was a revenge attack because Obed killed your mother or you thought that Obed killed your mother?

MR KHABA: I've already explained that - I told you that if it was a revenge killing, I would have killed each and every member of the Black Cats and even the person who was convicted for that, I would probably kill him if he comes out if it was a revenge killing and I have no desire to do that.

MR HATTINGH: I further wish to put to you that witnesses will testify if allowed to by this Committee to give a version of what occurred at the disco that night of the killing of Obed, namely that there were no problems and that you in fact came to the disco and said that you were looking for Obed and you commenced all the problems there.

MR KHABA: It's just like I have stated before, I have no knowledge of your allegation and I don't know where you got it from.

CHAIRPERSON: Any more questions Mr - have you any more questions?

MR HATTINGH: Lastly I would like and that is with specific instructions of families of victims - Mrs Thandi Miriam Mtetwa instructed me to put to you that on the 4th September 1992 and perhaps I could just advise the Committee that this is a specific instruction from a victim's mother and I'm just putting something I'm not going to it much further but on that date, the 4th September 1992 at Thembisa Complex, Wesselton, you together with a group of people killed her son George ...[intervention]

MR BLACK: I must object to this.

CHAIRPERSON: Is this got to with Obed?

MR HATTINGH: Mr Chairman, no it doesn't, it's got nothing to do with Obed.

CHAIRPERSON: Well then I'm not going to allow it.

MR HATTINGH: I may just, Mr Chairman, just put on record that I did receive instructions, further instructions in this regard from other people as well. If - I just want to make sure that the people who gave me instructions are aware of the fact that I wanted to make the allegations and request an answer from the applicant but that the Committee is not allowing me to do these.

CHAIRPERSON: Will you tell them why also?

MR HATTINGH: Mr Chair ...[intervention]

CHAIRPERSON: Because the applicant - it's relevant questions or only to be relevant to the application and unless it's involved with Obed's attempted murder or murder it's irrelevant and you do put in that risk when you talk about other crimes.

MR HATTINGH: Mr Chairman, I'm not proceeding with any further cross-examination, this will be the end of it but I would appreciate it and I really - I think it would go a long way in assisting me if you, as Chairman, perhaps in the Zulu language would explain the reasons why we are not allowed to talk about other incidents or make other allegations. I can go back to the people and explain it to them but they may very well feel that this should have been heard by this Committee and if it comes from the Chairman's own mouth, I think it would go a long way in assisting me if you could ...[intervention]

CHAIRPERSON: The person or deceased which you refer to or was supposed to have referred to, is that person one of the deceased in the whole application?

MR HATTINGH: Mr Chairman, no he is not one of the deceased in this application, in this hearing but however, I think the perception in the community is that this will be the only Black Cat Amnesty Hearing and that there won't be further opportunity to make allegations with regard to a particular applicant if they still have something on their hearts and I'm going to take it any further, I'm not - I have no intention of cross-examining on those things. It's a matter of I think - it's the opportunity we have to explain to people what the situation is.

CHAIRPERSON: Well if I am going to do that I want to think about it and if I'm going to explain I'm going to have to do it at the end of the hearing not now.

MR HATTINGH: Mr Chairman, I would appreciate that, thank you very much.

CHAIRPERSON: I'm not promising, I'm going to have to think about that. It has a lot of implications.

MR HATTINGH: I have no further questions, thank you.

NO FURTHER QUESTIONS BY MR HATTINGH

CHAIRPERSON: Mr Kemp?

CROSS-EXAMINATION BY MR KEMP: My pleasure, Mr Chairman.

Mr Chairman, as you know, I represent a number of individual persons whose names have been mentioned in the evidence of Mr Khaba. Now I'm in the invidious position that if I wanted to really test these allegations, I would need to go through much of the motions which we had gone through in the Goldstone Commission which took up a period of almost a year and would involve numerous witnesses. After consultation with my clients and instructing attorneys we believe that because of the fact that these allegations merely form part of the peripheral background to illustrate the general atmosphere that was in existence in this community during that period but I'm not going to burden this Committee with excessive cross-examination and I wish the Committee to understand that I'm not abandoning the defence of these people which they raised at the Goldstone Commission. I will merely put it to this witness today that those allegations are devoid of the truth and I'm not going to take it any further.

CHAIRPERSON: Mr Kemp, you can take our word, in our deliberations we will consider it in that light.

MR KEMP: Mr Chairperson, I thank you. Just another matter which I need to raise Mr Chairperson, before I do that because of certain misconceptions that I've found. In bundle 2, directly after the Goldstone report by Mr Justice Goldstone, there's a document included called Goldstone Commission of Enquiry, the Wesselton Police Submission Apropos of the Investigative Procedures and that document concludes - my papers aren't paginated but the Goldstone report is 41 pages and one would find it on the following page which would then in effect be page 42. It's a document that's 21 pages - that's in Volume 2. I just want to explain that this document was in fact the heads of argument submitted by Mr Sogget in that Commission and did not form any part of Mr Goldstone's report. The reply which I drafted and replied to this and which was fully considered by Mr Justice Goldstone is not annexed so I would ask that it merely be ignored as it's merely submissions made by another counsel. Some people were under the impression that it formed part of that report. Thank you Mr Chairman.

Mr Khaba, these allegations which you've made in this Commission were broadly the same allegations you made in the Goldstone Commission is that correct?

MR KHABA: That is correct.

MR KEMP: I merely want to put it to you that as previously in the Goldstone Commission, those people and those policemen whom you've referred to by name deny that they participated in any illegal activities or support of - that is illegal support - of the Black Cats or any of the parties involved in the violence at that time?

MR KHABA: According to my knowledge I know that they're being implicated.

MR KEMP: Thank you Mr Chairman, I have no further questions.

NO FURTHER QUESTIONS BY MR KEMP

CROSS-EXAMINATION BY MR MAPOMA: Thank you Mr Chairperson.

Mr Khaba, when you completed your application form for amnesty did you have the assistance of a legal representative?

MR KHABA: No, there was no legal representative.

MR MAPOMA: I take it that when the supplementary statement to your amnesty application was prepared it done in consultation between yourself and your legal representative, do you confirm that?

MR KHABA: Yes that is correct.

MR MAPOMA: Now, these two documents, your application form and the supplementary statement, I will not suggest that they are contradicting each other but I would want to know from you which of those two documents is truly reflective of the facts you want to bring before this Committee?

MR KHABA: The statement I prepared together with my attorney is the one.

MR MAPOMA: Now in the criminal case against you, you say you did not tell the truth there. Now you say in this Amnesty Committee what you're saying is actually the truth? I want you to explain this because the problem I'm having or that the problem that may be had is that you have an ability to swear and tell a statement and then again you swear and tell another statement. Just explain the circumstances between the two because both your evidence in the criminal court and the evidence here has been an evidence sworn into. I just want you to explain the circumstances between the two.

MR KHABA: I will try and explain that. The thing that made me give a false statement at the court of law were the reasons that I already on laid the table that the police and the court official, is the way they related my charges and the series of my charges, I realised there was nothing or there's no charge that I'm going to agree to. This is why I've lost my application of amnesty so that I appear before this Commission and tell the truth as it is.

MR MAPOMA: Do you understand that for you to be granted amnesty you must tell the truth before this Committee?

MR KHABA: Yes I understand that perfectly well.

MR MAPOMA: And for you to be acquitted in the criminal case you did not have to tell the truth, is that not correct?

MR KHABA: At the court of law I did not tell the truth.

CHAIRPERSON: But Mr Mapoma, he swore to tell the truth so he's supposed to have told the truth, not so?

MR MAPOMA: Yes sir, no what I want to say sir - unfortunately that perhaps I may have phrased my question not accurately. What I just want to bring is the fact that in the criminal trial he did not necessarily have to tell the truth for him to get the results that would favour him as is the case in the Amnesty Committee.

ADV SANDI: But he had taken an oath to tell the truth not so, Mr Mapoma?

MR MAPOMA: Absolutely sir.

CHAIRPERSON: Why should we believe you today - you took the oath to tell the truth on both occasions?

MR KHABA: I will briefly say this Commission that I'm appearing to is a Commission that is fair and it's law supports the rights of the people. It's unlike the court situation. At the court of law they look at what the police is saying and the court officials mostly more than what the accused is saying.

MR MAPOMA: When you take an oath Mr Khaba, do you always consider yourself bound by that oath?

MR KHABA: Please explain to which oath you're referring to -whether the oath at the court of law of here the Commission.

CHAIRPERSON: It's the same oath to God to tell the truth. God doesn't change between criminal court and here, it's the same God.

MR KHABA: Mr Chair, I will agree with you on that point that the God we serve is unchanging when it comes to the truth but the court of law and the amnesty are two different things.

If you are in a court of law there are things that you have to say inevitably because there are police around you and the prosecutors.

CHAIRPERSON: But the question my colleague has asked is that when you took the oath to God did you not bind yourself to tell the truth? Did you not bind yourself with God to tell the truth?

MR KHABA: I would briefly say Mr Chair I do trust and believe that the circumstances under which I were at the time there was not any other way that I could have handled the situation or the circumstances because the court of law could have sentenced me longer if only I told the truth.

ADV SANDI: Would it be a fair statement to make about you Mr Khaba that sometimes you find an oath binding on you but at other times you find it not binding on you?

MR KHABA: Yes that is so.

ADV SANDI: Thank you.

MR MAPOMA: Thank you sir.

Now, let's go to the disco. I will take you to what happened at the disco. You say in your evidence in chief that you went there to defend the community, is it so?

MR KHABA: That is correct.

MR MAPOMA: And I take it that there were a number of people, members of the Black Cats who were there, is it so?

MR KHABA: That is correct.

MR MAPOMA: And you shot only one person there and that is Obed, is that correct?

MR KHABA: Yes, I wouldn't know other who got injured but one person I knew or I know is Obed.

MR MAPOMA: There were a number of other Black Cats you knew of other than Obed, is that not correct? There at the disco?

MR KHABA: That is correct.

MR MAPOMA: But why shoot Obed only?

MR KHABA: At the time when this transpired at the disco or happened I did not see Obed that he was the one who got shot, it happened like that, that he got shot at the disco.

CHAIRPERSON: You told us a few minutes ago the person that you recognised at the disco was Obed?

MR KHABA: Mr Chair, I don't have any recollection of such.

CHAIRPERSON: Well I'm telling you, you did say so.

MR KHABA: It may happen that I made a mistake.

CHAIRPERSON: Why didn't you shoot other Black Cat people?

MR KHABA: Please repeat your question?

CHAIRPERSON: Why did you not shoot at other Black Cat people who were causing problems? Why only at Obed?

MR KHABA: The situation that prevailed at that time, we were being chased and shot at and when I retaliated that's when Obed got shot.

CHAIRPERSON: And did you see that it was Obed that you shot?

MR KHABA: At the time I did not realise that it was Obed that I shot.

CHAIRPERSON: When did you realise that it was Obed that you had shot?

MR KHABA: When this happened because even from our group Dumsani got shot. When I shot back I saw one falling down and I did not realise instantly it was Obed or who. I realised it was Obed when we were at the hospital that it was him indeed who got injured.

MR MAPOMA: Now to your knowledge are there other people who were the members of the Black Cats who were injured there?

MR KHABA: No I have - I bear no knowledge of that.

MR MAPOMA: Now when this shootout or let me find out this first - are there others of the community or the ANC members who were shot at during that shootout?

MR KHABA: Yes it is correct.

MR MAPOMA: So do I understand it correctly that it was a shootout between two factions?

MR KHABA: That is true.

MR MAPOMA: Can you categorise these factions, describe them these factions which you say they were shooting each other?

MR KHABA: It was the Black Cat members and us the self defence unit.

MR MAPOMA: Now why did you go to the hospital where Obed was admitted?

MR KHABA: When we were at Wesselton after all what happened at the disco, we told Mrs Umkosi that Dumsani has been shot and Mrs Umkosi went to the hospital. When she got there we realised that there were Black Cat members who had gone there to take their member. When they found Dumsani there they attempted to kill Dumsani that's when Mrs Umkosi came back to us to tell us that the Black Cats were at the hospital and attempting or wanting to kill Dumsani and that is it - it was at that stage when we left - when we went to the hospital.

MR MAPOMA: Is it not correct that you knew Obed was at the hospital when you went there?

MR KHABA: No, it's not like that, I didn't know.

CHAIRPERSON: I thought you told us that you went there to the hospital specifically to finish him off? You were informed that he was taken up in the hospital and that's why you went there? Isn't that what you told us?

MR KHABA: No Mr Chair, I don't remember saying that.

INTERPRETER: The speakers mike is not on.

CHAIRPERSON: Why did you then not kill him - or why did you kill him then at the hospital, sorry?

MR KHABA: Can you please repeat your question?

CHAIRPERSON: Why did you then kill him at the hospital, why did you shoot him?

MR KHABA: When we got to the hospital and discovering it was Obed lying there we realised that the instruction we got from Zwandile, the one who was in charge of the STU's - it was time that we bring it to fruition because Obed was already there at the hospital.

MR MAPOMA: Was he the only member of the Black Cats who was there?

MR KHABA: Yes that is correct.

MR MAPOMA: But you say when you went there you had information that the - these Black Cats were there? Were they not there when you're there?

MR KHABA: When we got there they had already left.

MR MAPOMA: Now at the disco when you were there you had already had instructions to kill Obed is it not so?

MR KHABA: Yes it is so.

MR MAPOMA: Now the version you have given earlier on is that you shot at him not knowing that it was him, is that not correct?

MR KHABA: That is correct.

MR MAPOMA: Let me add if I realised that it was him when he got injured at the Extension, he was not even going to reach the hospital because the instruction had already been out.

MR MAPOMA: Now when you killed him at the hospital what political objective is it that you intended achieving?

MR KHABA: It is because Obed posing dosing danger to the ANC members or was danger also to the community of Wesselton so that as he was injured we saw it or we deemed it fit that since we already had the instruction that he should be eliminated we did not have any option but to eliminate him so that the other people can be saved should be get discharged from the hospital. Knowing him he would have gone back to the people so we realised we will be saving the people as well when we eliminate him.

ADV SANDI: Sorry Mr Khaba, were you not interested to know how seriously he was injured, maybe he was so seriously injured that he could have ended up a cripple and go out of operation?

MR KHABA: Mr Chair, we had no idea as to how much he was injured but one thing we put into use was that he had to be eliminated according to the instruction, this is why we eliminated him, that was according to the instruction.

ADV SANDI: Yes but if he was going to end up on a cripple chair as the result of the first shooting surely he would have been less problematic in the community, there would not have been a need to kill him?

MR KHABA: Regarding the instruction even if I discovered, I would discover that he would be wheel chair bound subject subsequently there was nothing I could have done because my senior had already given me the order or instruction to kill him.

CHAIRPERSON: Why wouldn't you be able to go back to your senior and say look something has intervened now, he's not such a danger to the community, can we review the instruction?

MR KHABA: According to my knowledge I cannot respond or question what my senior has given me, only after the action or what, only after we have accomplished the mission then we could discuss with this thing here but not before we carry an order.

CHAIRPERSON: Isn't it a bit too late after completing the instruction to go have the decision reviewed?

MR KHABA: According to me I don't view it that way because when the order has been given or the instruction, I have no say thereof and I have no addition.

CHAIRPERSON: No, Mr Khaba, listen here. The instruction is given by somebody who bases his decision on information that comes to him, not so; and as we've heard in this case, in your evidence, that the instructor instructed the assassination of the deceased. He relied on information, general and some of the particular information you gave to him, not so?

MR KHABA: Please may you repeat your question or comment?

CHAIRPERSON: The instruction was based on information given to the person who gave the instruction?

MR KHABA: I will briefly say Obed was a resident of the same location.

CHAIRPERSON: No, you misunderstand my question. Your commander gave you the instruction to assassinate Obed, correct?

MR KHABA: Yes that is correct.

CHAIRPERSON: He made that decision based on certain information with which he was provided about Obed, correct?

MR KHABA: That is correct.

CHAIRPERSON: That he was a threat to the community and he was a member of Black Cat group etc, correct?

MR KHABA: That is correct.

CHAIRPERSON: Some of that information that he received came from you, correct?

MR KHABA: Yes that is correct.

CHAIRPERSON: Now what would be the position if you subsequently found out some of the information you had given was wrong or did you have new information which could possibly effect that decision? Would you not be duty bound to go back to your commander and say look there's a change of information?

MR KHABA: No I couldn't have done that because they had already given the instruction that he should be killed.

ADV SANDI: I know that what I'm going to say to you is a mere supposition. This is not something that happened. Let us suppose that when you came to the hospital, someone else, a member of the Black Cats was there and not Obed Nhlabathi. What would have happened?

MR KHABA: If it was the person that I had been given an instruction about that he should be eliminated even if it wasn't Obed, I would have eliminated him.

ADV SANDI: Who is that - who do you have in mind when you say that?

MR KHABA: We were given instruction about Bongani Malinga, Mandla Ngoso and Obed Nhlabathi.

MR MAPOMA: Now, at the hospital, where exactly was Obed at the hospital?

MR KHABA: He was at the ward.

MR MAPOMA: Was he asleep or awake at the time you shot at him?

MR KHABA: He was asleep.

MR MAPOMA: Did you have any personal vendetta against Obed as a person?

MR KHABA: According to me I had no personal vendetta as such except for the political struggle issues.

MR MAPOMA: Thank you, no more questions.

NO FURTHER QUESTIONS BY MR MAPOMA

CROSS-EXAMINATION BY MR PRINSLOO: Mr Khaba, just very briefly. The shooting incident at the hospital did it happen quickly or did it take some time, did you have time to examine Obed while you were there, did you have time to make enquiries about his medical condition or how long did it take?

CHAIRPERSON: ...[inaudible]

MR PRINSLOO: Well there seems to have been some suggestion that he should have enquired as to the extent of his injuries.

CHAIRPERSON: Do you think an assassin is going to enquire about the health of a victim?

MR PRINSLOO: I certainly don't think so and I think the evidence is that it happened quickly because it took place in town.

Mr Chairman, there's one issue just for clarity that I don't know if I should put it to him. During the course of his evidence he said that at the trial he was surrounded by police and judges and state officials and that he was represented by the State Attorney. Now for the record if you want me to put it to him for clarity, in fact had ...[intervention]

CHAIRPERSON: I couldn't care less who represented him Mr Prinsloo.

MR PRINSLOO: I just want to put it on record that he had pro deo representation so everybody in his mind was the state who had surrounded him, thank you.

NO FURTHER QUESTIONS BY MR PRINSLOO

ADV BOSMAN: Mr Khaba you mentioned on one or two occasions that "we eliminated Obed at the hospital" when you were questioned about the hospital. Who do you include in the "we eliminated him at the hospital"?

MR KHABA: It's Livingstone Lukhele.

ADV BOSMAN: Why do you say Livingstone, why do you include Livingstone?

MR KHABA: It's because when this happened I was with him when Obed got shot.

ADV BOSMAN: I have no further questions Chairperson.

MR BLACK: I have no re-examination, thanks.

CHAIRPERSON: We're not too sure if Mr Gushu's applied for amnesty in respect of Obed. One of your other clients now has mentioned him. During the weekend I think you must assess your positions. Unless there is an application that I'm not aware of in respect of Obed and I just feel that there may be reason to find that there's a bit of a conflict in your position. I'm not going to make a ruling on it, I don't intend to make it, I'm just drawing your attention to it.

Mr Khaba, how do you feel about what you did?

MR KHABA: I will briefly explain, Chairman ...[intervention]

CHAIRPERSON: Whoever's got that telephone on please put it off.

MR KHABA: I do feel an enormous amount of regret about what I did as now when I realise a problem I feel it's best for the parties involved to discuss that problem. If only this happened nothing of this could have happened. I know I wouldn't have done this, I do trust and hope that the relatives here understand me well that I had no any other option but to do as I already did, which I regret now.

CHAIRPERSON: You say that you feel that the interested parties should sit down and discuss the issue. Do you mean personally or through organisations?

MR KHABA: Mr Chair, I mean as now currently what's happening between Inkatha and ANC, they do get down and solve their problems and iron out their differences.

CHAIRPERSON: Now that is another level, I'm not referring to that. I'm not making political suggestions. I'm talking about your willingness to sit down person to person and to come to terms with life and the victims of your actions in order to live how we should live in this new South Africa from now on. What do you feel about that?

MR KHABA: I would request the Chairman to afford me the opportunity to sit down with the victims and apologise in person so we can start afresh on a new page.

CHAIRPERSON: Well it's not for us or any of the panel members to facilitate that. I'm just raising that so that if it is at all possible then your representatives must facilitate that. Hopefully in your case your representatives can also reconcile.

MR KHABA: I'll be very grateful about that, Mr Chair.

CHAIRPERSON: Yes, thank you. You are excused.

WITNESS EXCUSED

CHAIRPERSON: I plan to adjourn at 11 a.m. this morning. A lot of the officials have to get to the Johannesburg Airport at different times and we are in a position where many of us are going to travel on Monday morning, we'll only be able to get here at about half past eleven, twelve o'clock on Monday morning, therefore I'm going to adjourn for us to start at one o'clock on Monday. Are there any objections?

In order to give us an opportunity or to gauge what time limits we have, aside from the applicants, Mr Black, are there any witnesses you intend to call?

MR BLACK: No, I have no witnesses.

MR HATTINGH: None Mr Chairman.

MR KEMP: At this present time none.

MS VAN DER WALT: I am planning to call Mr Masebe as a witness and if - as you know I did not receive instructions from the beginning but when Andries Gumede testified he was not cross-examined but I am planning to ask you that he may be recalled so that I can cross-examine him on the instruction of Mr Masebe. I am mentioning it now, I know I'll first have to make an application.

CHAIRPERSON: I do not want to make a judgement now but at the moment I would like you to consider the value of presenting his evidence unless Mr Masebe opposes the applications.

MS VAN DER WALT: Yes that is my instructions.

CHAIRPERSON: Then I understand it yes.

MS VAN DER WALT: I've got no other witnesses.

CHAIRPERSON: So we're now talking about only one person?

MS VAN DER WALT: It would only be one yes and it would also depend if Mr Gumede will be called back and what comes out of the cross-examination then one can consider Mr Masebe's evidence but at this stage it would only be one person, yes.

CHAIRPERSON: Mr Prinsloo?

MR PRINSLOO: Apparently no witnesses, Mr Chairman.

CHAIRPERSON: Mr Hattingh?

MR HATTINGH: Mr Chairman, I'm almost too scared to speak. No I think that we're looking at approximately six witnesses will come into play. We were referring to six separate incidents and I have instructions on behalf of victims' families for each and every incident and I may also add that although some of the witnesses I intend calling may not very well show any light on the matter or the incident itself.

CHAIRPERSON: They want to say something.

MR HATTINGH: They want to say something and it's not going to take long but I think it's important that they do testify.

CHAIRPERSON: I appreciate that.

ADV BOSMAN: It does sound better if you say one witness per incident.

MR HATTINGH: I'm not committing myself but at this stage it would appear to be more or less the position.

CHAIRPERSON: Mr Mapoma are there any witness you intend to call?

MR MAPOMA: No, no witnesses Mr Chairperson.

CHAIRPERSON: Mr Patel have I asked you or did I skip you?

MR PATEL: ...[inaudible]

CHAIRPERSON: None. And how many applicants have we got left, ten?

MR PATEL: Exactly ten yes.

CHAIRPERSON: Dare I ask are we going to go any quicker next week. Perhaps, perhaps and I'm not inviting to go further than next week on Friday but perhaps we should start thinking of dates also for further hearings. The quicker the better because the rolls, the new rolls have not been scheduled yet and if we indicate to Cape Town Head Office that this panel is required in Ermelo on a particular week then it's easy for them to slot it in on the new roll, okay? Then we'll adjourn till 1 o'clock on Monday.

COMMITTEE ADJOURNS