MRS NHLAYISI: Mr Chairman, it concludes my applications for the day. My colleague, Mr Sibeko will be taking over.
MR SIBEKO: Mr Chairman, the applicant is Mr Thami Mahlala. His application appears on page 72. The application number is AM7628/97.
CHAIRPERSON: Where is he Mr Sibeko?
MR SIBEKO: He is with Prison Authorities.
CHAIRPERSON: Mr Steenkamp, will you see to it that the shackles are taken off while they are sitting in this hall please?
ADV STEENKAMP: Mr Chairman, I actually have informed Prison Authorities previously. I know in the previous hearings you have informed me similarly. I informed them, I don't know why it is.
CHAIRPERSON: Keep an eye on it please.
ADV STEENKAMP: I do apologise Mr Chairman.
CHAIRPERSON: Mr Sibeko, what is the position with his ID number?
MR SIBEKO: Mr Chairman, Mr Mahlala informed me that he never possessed any ID book before, as a result he doesn't have any identity document, he only knows his birth date.
CHAIRPERSON: Which is?
MR SIBEKO: The date of birth is the 28th of October 1970.
CHAIRPERSON: You better inform him if he intends to vote, he better have an ID document with a bar code.
MR SIBEKO: I will do so Mr Chairman.
CHAIRPERSON: Mr Mahlala, what language would you prefer to use?
MR MAHLALA: Zulu.
THAMI MAHLALA: (sworn states)
CHAIRPERSON: Would your incarceration at the moment, have anything to do with your application? In other words are you serving sentence for the acts and offences for which you are now applying for amnesty or is it for something else?
MR MAHLALA: I am in jail because of the incident that took place in the township, the incident that I am applying for surely. I am applying for amnesty.
CHAIRPERSON: Mr Sibeko, I don't know if the applicant understood me correctly, because I didn't quite follow his answer. Are you able to tell me whether he is in prison solely for the acts for which he applies for amnesty?
MR SIBEKO: Mr Chairman, those are my instructions. All the acts that he has been sentenced for, and other acts that he is applying for amnesty.
CHAIRPERSON: Mr Sibeko?
EXAMINATION BY MR SIBEKO: Thank you Mr Chairman. Mr Chairman, the applicant applies for amnesty for murder, one count of murder, one count of attempted murder, one count of armed robbery, unlawful possession of firearms, one count. I don't have the number, but it is a number of arms and one count of attempted escape from lawful custody.
CHAIRPERSON: Would that be for political reasons?
MR SIBEKO: Mr Chairman, the facts relating to it, will indicate that it was somewhat political.
CHAIRPERSON: I am going to be very interested to hear that.
MR SIBEKO: May I proceed? Sir, were you a member of the Self Defence Unit in Tokoza?
MR MAHLALA: Yes, I was within the Youth Congress in Tokoza.
MR SIBEKO: Yes, were you at any stage part of the Self Defence Unit in Tokoza?
MR MAHLALA: Yes.
MR SIBEKO: Which Section were you operating as a member of the Self Defence Unit?
MR MAHLALA: Slovo Section.
MR SIBEKO: When did you join the Unit?
MR MAHLALA: In 1990.
MR SIBEKO: At that time, who was your Commander?
MR MAHLALA: My Commander was Levi, his assistant was Jamani.
MR SIBEKO: Now, do you by any chance have other names for Levi?
MR MAHLALA: Molefi.
MR SIBEKO: Sir, do you confirm that the offences that I have read out, are the offences that you are applying for amnesty for?
MR MAHLALA: Yes, I confirm that.
MR SIBEKO: Right, on page 73 paragraph 9(a), you indicate that the acts or omissions or offences is possession of illegal firearms, murder and stolen vehicle and the dates you refer to as the 30th October 1992, do you have any problems in letting us know what actually happened?
MR MAHLALA: No, I don't have a problem. I can explain.
MR SIBEKO: Proceed sir.
MR MAHLALA: On the 29th of October 1992, it was in the morning, Levi came to me. He asked me, saying that I should accompany him to go to where we were going to fetch a car and go out on our way to collect firearms. Therefore we went to Alrode. We arrived at Alrode, we sat there. People were getting in buying things, getting in and out and one man who was wearing a two piece, got out of the place and got into a car. As he was about to start his car, Levi approached him and pointed a firearm at him, and I was already close to that person.
He raised up his hands inside the car, he opened the car and went out. We got into the car and I climbed in the passenger seat. We went back to the township.
MR SIBEKO: You say on that particular morning ...
CHAIRPERSON: Was that the robbery?
MR MAHLALA: That is correct Mr Chairman.
CHAIRPERSON: Is that the robbery of the motor vehicle?
MR SIBEKO: Now you say on that particular morning, Levi who happens to be Molefi, and you said he was your Commander, came to your place, correct?
MR MAHLALA: Yes, he came to me as a Commander.
MR SIBEKO: You said he told you that you have to go to Alrode in order to get the car?
MR MAHLALA: Yes.
MR SIBEKO: And then you say the car that you were actually looking for, should be a company car?
MR MAHLALA: It will be a company car, any Contractor's car.
MR SIBEKO: Then when you arrived, you waited until you saw one man who was there to buy something?
MR MAHLALA: Yes, we arrived and waited at the place and we were waiting for any car which belonged to Contractors or a company and it so happened that this gentleman got out and got into this particular car and as I explained before, we pointed a firearm at him, he raised his hands. We got in and we drove to the township.
MR SIBEKO: The person who got into the car, after this man alighted, is it Mlefi? Is it Levi?
MR MAHLALA: Yes.
CHAIRPERSON: Is Levi also known as Mlefi? Is that his proper name?
MR MAHLALA: Yes.
MR SIBEKO: You occupied the passenger seat and then you left?
MR MAHLALA: Yes, I was sitting on the passenger seat.
MR SIBEKO: What was the purpose of you getting this motor vehicle?
MR MAHLALA: The purpose for acquiring this car, was to use it to go to Duduza, to go and fetch firearms. My Commander had already informed me that there is some operation that we had to do, but we have to first go and collect firearms and carry out the work in the evening.
MR SIBEKO: Right, you got the car, what happened thereafter?
MR MAHLALA: We took the car and kept it somewhere. In the evening Levi came together with Jamani and Vusi. They found me outside, they called me and I approached them. In front it was Levi who was driving and Jamani was the passenger and Vusi was sitting at the back and I got at the back together with Vusi.
We drove to Duduza and when we arrived in Duduza, Levi came out of the car. He got out of the car and he said to Vusi are you armed with a firearm, and Vusi said yes. He said if ever we got attacked, we protect ourselves with these firearms. He went into one shack and one man by the name of Zinto came out. This person came to meet Levi.
I know this person because I met him once in the township. At a particular moment, they both went into that shack. Levi came out, holding a bag. He opened the door and threw it into the front seat of the car and he said to us, if anything disturbs us on the way, we will have to fight, because if we had to arrive in the township without the firearms, they will say we have misused the funds.
He got into the car, started the car and we left.
MR SIBEKO: Yes?
MR MAHLALA: We left and before we arrived at Vosloorus, we found a roadblock. We had to turn back. We turned back and we stopped at Dawn Park and parked our car under a light.
We started discussing as to how we were going to do it. We had to decide whether we should wait until the roadblock is over or we should use another route, and before the lapse of time, about three or five minutes, another car came and stopped from behind. It was a private car.
MR SIBEKO: Yes?
MR MAHLALA: Vusi was outside at the time, busy urinating. Vusi said they are cocking their arms, and before he could finish - Vusi heard them cocking the firearm and we also heard the sound of firearms, we looked at them and thereafter we heard a fire shot. It looked like they were firing at us.
We took cover. Levi got into the car, he pulled out his firearm. Vusi also shot. Those people shot at us and he fell down.
CHAIRPERSON: Who fell down?
MR MAHLALA: Vusi fell down. I took the firearm from Vusi, we heard the sound of an AK47 and as we were shooting them, we suspected that, we didn't know that they were police, because they were dressed in private clothes.
In my mind, while shooting at them, I thought, I remembered that my Commander said that we should find any disturbance on the way, and I thought it was the soldiers who were at the roadblock and they have seen us, so I shot at them.
CHAIRPERSON: Why?
MR MAHLALA: I was trying to protect the firearms that we had, because our Commander has informed us that we should arrive at the township with the firearms and we should do anything to protect them.
CHAIRPERSON: So you were acting in terms of a command as well?
MR MAHLALA: Yes. We exchanged fire, some police arrived and we fired each other, and I tried to cover. At that time, I was shot and I woke up in hospital. I don't remember what happened thereafter, I don't know what happened thereafter.
MR SIBEKO: Mr Chairman, I see that the time now is one o'clock. Should we proceed? It is not much?
Right, you were also shot and you were unconscious until you regained your consciousness at the hospital, is that correct?
MR MAHLALA: That is correct.
MR SIBEKO: That is how you were arrested, is that correct?
MR MAHLALA: That is how I was arrested.
MR SIBEKO: Amongst the offences or the acts that you have applied for, you have also included attempted, or escaping from lawful custody. What made you to want to escape from custody?
MR MAHLALA: It is because I had a visitor from the township, saying that people are getting killed in the township and things are very tense and even my girlfriend doesn't stay at her own home at that moment. Therefore because of all these things, I decided I have to skip from prison to go and help the community.
MR SIBEKO: Now, when you were tried and convicted, did you get an opportunity of getting to know the victims, the next of kin of the person that died as a result of the shootout between yourself and the people who came with the vehicle, which you say is a private car?
MR MAHLALA: Yes, I saw them in court.
MR SIBEKO: If you were to be given an opportunity of approaching the next of kin of the deceased to reconcile with them, would you make use of that opportunity?
MR MAHLALA: Yes, I will be happy to get such an opportunity to ask forgiveness from them.
MR SIBEKO: The offence of attempted murder that you have also included, is it related to the shootout between yourselves and the occupants of the private car?
MR MAHLALA: Yes, that is correct.
MR SIBEKO: Am I correct to say at the time you saw this private car approaching and having met the roadblock, what came to your mind is that these were the police who might have seen you when you made a U-turn, that is running away from the roadblock, is that correct?
MR MAHLALA: That is correct. I thought they saw us when we turned back and therefore I suspected that they were police.
MR SIBEKO: Now if you were to be given an opportunity to meet the gentleman whom you robbed the vehicle at Alrode, would you also take that opportunity and try to make peace or reconcile with him?
MR MAHLALA: Yes, I will appreciate to get such an opportunity.
MR SIBEKO: Which Court tried you and what sentence was passed or was given?
MR MAHLALA: I am sorry, it was the Boksburg court and I was sentenced to 33 years for all the charges.
MR SIBEKO: Thank you Mr Chairman, I've got no further questions.
NO FURTHER QUESTIONS BY MR SIBEKO
CHAIRPERSON: We will take the lunch adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
THAMI MAHLALA: (still under oath)
ADV STEENKAMP: Thank you Mr Chairman, we are ready to proceed. I think my learned colleague has closed his evidence, thank you sir. I don't have any further questions, thank you Mr Chairman.
NO CROSS-EXAMINATION BY ADV STEENKAMP
ADV GCABASHE: Thank you Chair. Mr Sibeko, if you could just show your client supplement 2. On page 1 there is a reference to Molefi Michael Selebe. Is that the same Molefi you refer to in your testimony?
MR MAHLALA: Yes, that is correct.
ADV GCABASHE: Now, I don't know if you have with your legal representative, gone through the documents attached to Selebe's application, these particular documents in this supplement? I was just reviewing over the lunch break, the statements in this document, page 9 by one Gehlig and the statement on page 15, by Van Wyk and the other documents essentially relating to what I think is the same application that you are making now. I am right in that, am I, that you have seen the documents and it is the same set of facts and circumstances essentially as Selebe's?
MR SIBEKO: That is correct so.
MR MAHLALA: It is correct so.
ADV GCABASHE: When you go to page 9, the first statement, essentially what this witness says is that there was a burglary, just the long and short of it, there was a burglary and this was followed by a search around the area for the burglars. They came across this white van and a shootout ensued. Just very roughly, this is what he says.
He mentions a blue Sierra as well, which is what you mention in your evidence. What is your comment on the statement made by Gehlig on page 9?
MR MAHLALA: I don't deny the statement. This is a statement made by Gehlig. It is his own statements and this is what he said before the Court.
ADV GCABASHE: The impression I get having read the statements, he is saying that the group you were with, essentially committed this robbery, I beg your pardon, the burglary, housebreaking and theft, and you shot at them without any provocation essentially. This is what he is saying here.
Are you saying that these facts are correct, because they are very different to what you told us in your testimony? Just help me with that.
MR MAHLALA: It is not true, we didn't come here to rob the house. We went to Duduza to collect firearms to defend the community.
ADV GCABASHE: Are you saying that everything that this particular witness says in his statement, is incorrect?
MR MAHLALA: Yes, it is not true.
ADV GCABASHE: You will agree though that they are talking about the same type of motor vehicle, a blue Sierra, they are talking about Glen Thompson, who you mention in your documents as well, as the person who was killed. Are you able to give any further explanation as to where this witness is wrong, and where on particular facts, he might be right, because there are certain similarities, but then there are very fundamental differences as well, between this statement and what you are saying.
Just to try and separate the issues for us, so that we can understand them.
MR MAHLALA: With reference to the car, it is correct. Even if I can't remember the colour, the truth is my statement, it is correct, especially the one that I am just presenting before the Committee. As I have said that I was coming from Duduza, I don't know whether he was involved in the robbery in his own area.
I don't know if I have fully explained myself.
ADV GCABASHE: Sorry, you don't know if who was involved in the robbery in his own area, who are you referring to?
MR MAHLALA: Are you referring to the robbery of the car or...
ADV GCABASHE: No, I will come to the robbery of the car in a few minutes. The more material aspects that concern me, in terms of my understanding of your case, concern these two statements by Van Wyk and this other chap, about the facts and circumstances of the shootout, what happened before the shootout, the shootout itself and what happened just after the shootout.
MR MAHLALA: I am referring to the robbery of the car. I was with Levi and that happened at Alrode, as I explained before.
ADV GCABASHE: Can we leave that, the robbery of the car just for a minute and talk about when you were arrested, the shootout and the time that you were arrested in Dawn Park. That is what these statements refer to. Are you with me?
MR MAHLALA: Yes, I understand what is said in these statements.
ADV GCABASHE: And you are saying that what is said in the statements, is a lie, all of it is just a lie? It is not true?
MR MAHLALA: Yes, that is correct.
ADV GCABASHE: You are saying that the people who drove up behind you in the Sierra, shot at you first?
MR MAHLALA: Yes.
ADV GCABASHE: And you thought that these people had come from the roadblock that you had avoided earlier on?
MR MAHLALA: Yes, I thought they were coming from the roadblock because we were under a light, and I thought they were the police.
ADV GCABASHE: Okay. Let's come back to your version. The roadblock was somewhere near Vosloorus. What was the distance between the point where the roadblock was and the point where you parked under the lamp in Dawn Park, just estimate that distance for us?
MR MAHLALA: It was a big distance, we were very far. We were out of Vosloorus and because these are two distinct places, Vosloorus and Dawn Park, so we were far from Vosloorus.
ADV GCABASHE: Now, if I remember well, you were sitting at the back of the bakkie, is this correct?
MR MAHLALA: Yes, that is correct.
ADV GCABASHE: Was this an open bakkie?
MR MAHLALA: It was an open bakkie.
ADV GCABASHE: And at what time of the night was this, there is mention of a light, so I am assuming night time, at what time did this happen roughly?
MR MAHLALA: Even if I can't remember the exact time, I will estimate and say it was about twenty five to six or six o'clock. That is my estimation of the time.
ADV GCABASHE: While you were sitting at the back of the bakkie, did you notice a car following you from Vosloorus to Dawn Park?
MR MAHLALA: No.
ADV GCABASHE: But you were sitting with your back to the passengers inside, your back to the cabin, so you were able to observe the cars that were coming behind you?
MR MAHLALA: Yes, I was able to see those cars coming towards us.
ADV GCABASHE: Why is it that you did not notice this car until it had parked behind you?
MR MAHLALA: As I stated that we only noticed the car when it had already parked behind us, and Vusi was outside, he said they were cocking their firearms and I took my firearm. I didn't see it following us from behind.
ADV GCABASHE: But this is my question, if you were sitting in the back of the bakkie, and you had been sitting there all the way from Vosloorus to Dawn Park, why is it that you did not notice this car approach or park? You only realised that it was there when Vusi mentioned that there was a car, and the guys were cocking their firearms at you.
It just doesn't sound, I don't quite understand how this could have happened. Now you are able to explain it to me, because you were there, just help me with this.
MR MAHLALA: I would say there is a steep, the area is steep, so you can only see the car when it is already finished ascending the steep, so you wouldn't be able to see it when it is on the other side of the steep.
I would say from where I am sitting, to the door, you won't see a car if it is coming from the other side, because of the steep in between.
ADV GCABASHE: I am sorry, you have actually lost me now. Was the car approaching from the back or the front?
MR MAHLALA: It was coming from behind.
ADV GCABASHE: Then just go over what exactly happened after Vusi said that these chaps are cocking their firearms at us. Let me ask this question, were you armed?
MR MAHLALA: Vusi and Levi were armed and we also had the guns or the firearms that we went to collect. Vusi shot back and he fell down. After he fell down, I took the firearm from him and I started firing towards the private car.
ADV GCABASHE: So you were not armed until you took Vusi's firearm?
MR MAHLALA: Yes, I wasn't armed.
ADV GCABASHE: And what firearm was that, Vusi's firearm?
MR MAHLALA: It was a shotgun.
ADV GCABASHE: Did Vusi die?
MR MAHLALA: Yes.
ADV GCABASHE: Molefi got out on the other side, and also started shooting?
MR MAHLALA: Yes, that is correct, he was shooting at them with an AK47 and the other man, Jamani, was shooting them with an AK47.
ADV GCABASHE: Where did Molefi get his AK47 from?
MR MAHLALA: It was from the firearms that we were supposed to collect from Duduza.
ADV GCABASHE: And Jamani, also from that batch of firearms?
MR MAHLALA: Yes, that is correct.
ADV GCABASHE: Jamani was shot at well?
MR MAHLALA: No.
ADV GCABASHE: Did he manage to escape?
MR MAHLALA: Yes. He ran to a place which - Levi and Jamani ran away.
ADV GCABASHE: Molefi and Jamani ran away?
MR MAHLALA: Yes.
ADV GCABASHE: You were the only one who was arrested for this incident?
MR MAHLALA: Yes.
ADV GCABASHE: When was Molefi arrested for this particular incident?
MR MAHLALA: I don't know because I was in jail at that time.
ADV GCABASHE: Let me just go back to the robbery, armed robbery, taking the car at Alrode. You gave us the date of the 29th of October 1992, is that correct?
MR MAHLALA: Yes, it is correct, but I am not sure, perfectly sure whether it was the 30th or the 29th.
ADV GCABASHE: On page 21, if this is the motor vehicle, and I am assuming this is the one, the date they give here is the 28th of August, no, it is not the same vehicle. We are talking about October in your instance, this isn't the same vehicle? It is not the same one.
MR MAHLALA: No.
ADV GCABASHE: When you escaped from lawful custody, this is the last aspect, did you escape with Molefi or were you on your own?
MR MAHLALA: I was alone.
ADV GCABASHE: Thank you. Thank you Chair.
MR SIBANYONI: Mr Mahlala, I am referring to your application, I see on page 74, you were asked to state the political objective sought to be achieved and you didn't answer that question. Could you please explain to us what did you intend to achieve by the actions you undertook?
MR MAHLALA: My main aim was to help the community, because there was intense fighting in the community and there wasn't any other way to protect the community. The only way was to participate in fighting or defending the community.
MR SIBANYONI: But specifically by shooting at the occupants of the car, what political objective did you intend to achieve?
MR MAHLALA: As the Commander have already given an instruction that if we are disturbed on our way, we could also be killed, we have to fight to protect these firearms and also to protect our lives. That is why I had to shoot at them, to protect the community property so that I will be able to take them to the township where they were to be used.
Unfortunately I wasn't able to do that.
MR SIBANYONI: Thank you. That is the only aspect I wanted to be clarified. Thank you Mr Chairperson.
CHAIRPERSON: Mr Mahlala, how long was your trial? How long did it last?
MR MAHLALA: I can't remember.
CHAIRPERSON: Was it a couple of days or did you plead guilty or what is the position?
MR MAHLALA: I pleaded not guilty. I denied that I was guilty.
CHAIRPERSON: The people who testified in that trial for the State, did they stick to their versions?
INTERPRETER: Will the speaker please repeat the question?
CHAIRPERSON: Those State witnesses who claimed to have witnessed the shooting and that whole incident, did they stick to their versions? You heard it then and you have been able to read their statements now, did they stick to their versions?
MR MAHLALA: Yes, but in some other instances, they contradicted each other. They were complainants and they were also contradicting each other in court. They were saying as they were approaching the bakkie, they wanted to see. I don't know what exactly they wanted to come and see and further, I can't remember some of the other things that they said in court.
CHAIRPERSON: Aside from verbal evidence, was there any other type of evidence which the State chose to lead against you?
MR MAHLALA: I don't remember, but I think there were other things that resulted in the Judge finding me guilty and which specifically refers to the car.
CHAIRPERSON: What about fingerprints in 25 Haslink Street? Was there any evidence of your fingerprints being in that house?
MR MAHLALA: They didn't mention anything about my fingerprints in court.
CHAIRPERSON: Not even in the car?
MR MAHLALA: They didn't.
CHAIRPERSON: Were you in a white bakkie that day?
MR MAHLALA: Yes, that is correct.
CHAIRPERSON: And you say that you were on your way or you used the bakkie to go and fetch firearms, correct?
MR MAHLALA: Yes, we were using it to go and collect firearms.
CHAIRPERSON: Describe this bakkie for me, was it a double cab, do you know what I am talking about, with four doors or only two doors on that bakkie?
MR MAHLALA: It was a two door bakkie.
CHAIRPERSON: And you say you and Vusi were at the back?
MR MAHLALA: Yes, that is correct.
CHAIRPERSON: Is that, was there a canopy on it?
MR MAHLALA: No, there was no canopy.
CHAIRPERSON: Are you sure it was a bakkie, I am going to tell you why I am asking that question, I could hardly think that people who were going to fetch illegal arms, would use an open bakkie to transport arms when they are trying to hide those arms away. Can you comment on that?
MR MAHLALA: Yes, it was a white bakkie, I am sure about that.
CHAIRPERSON: I know that. But why use an open bakkie when you are trying to conceal things, especially illegal arms? Why didn't you people rob another person of a car, where you could put the firearms in the boot and nobody would suspect or see anything? Or at least you wouldn't risk anybody seeing the arms?
MR MAHLALA: We didn't select any particular car. It so happened that the bakkie came, and we took it, because it was a Contractor's car. Even if a private car came, we would have robbed it. Whether it was a private car or a bakkie, it was not ...
CHAIRPERSON: You knew why this motor vehicle needed to be stolen, not so, or hijacked? You were aware of the purpose for it, is that not so?
MR MAHLALA: Yes, I knew that we were robbing it in order to use it to carry firearms.
CHAIRPERSON: Is there any particular reason why you never suggested leave this bakkie, because we are going to have to put the firearms on the back of the bakkie, there is more chance of being found out? Let us steal or hijack a closed motor vehicle, so that we can hide these firearms when we are transporting it.
MR MAHLALA: As I think I have already mentioned, that the firearms were not carried in the back of the car, but they were in front where Jamani and Levi were.
CHAIRPERSON: That may be so, but at that time when you stole the motor vehicle, I am asking did it not cross your mind to take further precautions at the risk of being detected?
MR MAHLALA: It didn't come to our minds. What came to our minds is to get a car and with that car, we will be able to get the firearms from Duduza back to the township.
CHAIRPERSON: Now, you say Vusi got off the motor vehicle when it was parked under a light, to go urinate?
MR MAHLALA: Yes, he was passing water by the side of the road.
CHAIRPERSON: And you, as I understand your evidence, this other motor vehicle with these white people, suddenly came and parked behind you?
MR MAHLALA: Yes, although I wasn't sure whether they were white or black people inside at the time, they did come and park behind us.
CHAIRPERSON: Suddenly?
MR MAHLALA: Yes, it happened very quickly, while we were thinking what to do.
CHAIRPERSON: Did you not see this motor vehicle coming on to you from a distance?
MR MAHLALA: No, I personally did not see it.
CHAIRPERSON: Why not, did anything prevent you from seeing it?
MR MAHLALA: It is because where we parked our bakkie, it was on the low area and there is a steep before you reach it, so if you are coming from the other side of the steep, I can only see you when you are close to me.
I couldn't see further. I am trying to describe the road, how it was.
CHAIRPERSON: Did anybody use the hooter of that bakkie at that time, immediately before the shooting?
MR MAHLALA: No, I didn't hear the sound.
CHAIRPERSON: Is it possible someone did use the hooter of the bakkie?
MR MAHLALA: No. I didn't hear the bakkie's hooter.
CHAIRPERSON: I am given to understand in the trail, it was alleged that the house in Haslink Street was burgled, is that correct?
MR MAHLALA: I don't know because I didn't go there to rob such a house, I went to collect the firearms, so I don't know about it, it is not true.
CHAIRPERSON: Did you hear that in the trial?
MR MAHLALA: Yes, I did hear about it.
CHAIRPERSON: Do you know, I am not saying you were guilty of it, do you know whether that house was in fact burgled?
MR MAHLALA: No, I didn't.
CHAIRPERSON: Also in your trial it was said that certain appliances, amongst which was a television, was found in the veld in close proximity to where you people were parked that day.
MR MAHLALA: In court, they didn't discuss anything about TV and they didn't mention anything which was found in our vicinity. The only thing that were found or discovered, were firearms where we were.
CHAIRPERSON: And you say your fingerprints were found inside the bakkie?
MR MAHLALA: No, it wasn't mentioned to me in court.
CHAIRPERSON: I am sorry, I thought you said that your fingerprints were found inside the motor vehicle. Did you not say so? I am sorry if you didn't say so.
Did you mention anything about fingerprints?
MR MAHLALA: No.
CHAIRPERSON: And you don't know how many firearms were found?
MR MAHLALA: I don't remember.
CHAIRPERSON: You got ten years for murder?
INTERPRETER: Will the speaker please repeat the question?
CHAIRPERSON: Did you get ten years for murder?
MR MAHLALA: Yes, that is correct.
CHAIRPERSON: And for the attempted murder?
MR MAHLALA: They mentioned ten years consecutively, so I can't remember, but I ended up with 33. They also mentioned three years in one of the charges.
CHAIRPERSON: That was for the unlawful possession of firearms and ammunition, I suppose. You got ten years each for murder, attempted murder, armed robbery and that ran separately? Is that not so?
MR MAHLALA: Yes, they combined everything.
CHAIRPERSON: According to your record, you will serve an effective 20 years imprisonment?
MR MAHLALA: Yes, I am serving a 20 year sentence.
CHAIRPERSON: Thank you, you are excused.
WITNESS EXCUSED
MR SIBEKO: Mr Chairman, this was the only application I had for today. May I be excused?
CHAIRPERSON: What do you mean for today, have you got more tomorrow?
MR SIBEKO: I still have to go through the list that is here with Mrs Nhlayisi to see whether there are still outstanding applications which are hearable.
CHAIRPERSON: Mr Sibeko, why was this not done over the weekend?
MR SIBEKO: Mr Chairman, we prepared this report which was given over to Mr Steenkamp sometime last week, and then there were applicants that were not consulted as yet.
We tried to secure some over the weekend, and I left Mrs Nhlayisi to consult with them. I am not sure as yet whether those are hearable.
CHAIRPERSON: When are we going to hear about whether there are further applications?
MR SIBEKO: Just before we adjourn.
CHAIRPERSON: Can't I adjourn now and then you can sort it out, if necessary we can continue with the hearing?
MR SIBEKO: (indistinct)
CHAIRPERSON: Please, we will adjourn.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes Mr Steenkamp?
ADV STEENKAMP: Thank you Mr Chairman. Mr Chairman, I don't know if it is the proper time to do so, but we do have the Attorney appearing for the Khanyile family here today, Mr Shane is here.
As I understand, we are going to deal with the matter of Mr Buthelezi, who is also an applicant in the killing, the murder of Mr Khanyile. There is a request from the Attorney, if I may do so Mr Chairman, with all due respect, to place herself on record, and just to inform you officially what the position regarding the family is and regarding certain documents that were handed in. If that may be done within a jiffy, thank you sir.
MS BOSSARD: Thank you Mr Chairman, as previously stated I appear on behalf of the Khanyile family.
CHAIRPERSON: Could you just announce your name for the purposes of the record please.
MS BOSSARD: My name is Tracey Bossard, I will be appearing on behalf of the Khanyile family, namely Sothole Khanyile, Msizwe Khanyile and also on behalf of the aunt, Margaret Mabuza. We would just like to place on record, that they are all present today.
Mr Chairman, we further wish to place on record that we have handed in the affidavits on behalf of the victims. They have also been handed to my colleague, he is well aware of the contents, he has had an opportunity to peruse them. We have however, not any idea what his position is on these documents at this stage.
CHAIRPERSON: Can we mark that bundle, Exhibit 6.
ADV STEENKAMP: As you wish Mr Chairman, that is correct Mr Chairman, it must be Exhibit 6. Mr Chairman, I do apologise, unfortunately I am sitting here with the original. I do apologise profusely, I would like permission just to hand in the originals if I may do so.
CHAIRPERSON: I do have an original.
ADV STEENKAMP: Apparently sir, they are all signed. Thank you, I am sorry sir, thank you sir.
CHAIRPERSON: Anything else Ms Bossard?
MS BOSSARD: No thank you Mr Chairman, it is fine.
CHAIRPERSON: You indicated that you had not had any response from who?
MS BOSSARD: From my colleague, Mr Shane.
CHAIRPERSON: I think he may be in a better position at the end of the day, to tell you what he wants to do. Mr Shane?
MR SHANE: Thank you Mr Chairman. I have read the affidavits and discussed it with the applicants. In fact the only applicant I could discuss it with today was (indistinct).
He is adamant that he had information that can prove that the late Bheki was in fact a member of the IFP and was in fact ...
CHAIRPERSON: Mr Shane, I am going to stop you right there. This is not the time to discuss the merits and the contents of this affidavit. All I wanted to know was whether you have any procedural objection to the handing in at the moment?
MR SHANE: Sorry sir, I misunderstood you. No objection to handing in the affidavit, thank you.
CHAIRPERSON: Can we proceed with what you want to do?
MR SHANE: My position Mr Chairman, we don't object, as I said we don't object to the affidavits, my position is that the two applicants will deny what is contained in the affidavit of Margaret Mtombiyotwa Mabuza, paragraph 4 and they deny that they had anything to do with registration, car registration documents, these are denied, and my instructions ...
CHAIRPERSON: Mr Shane, I thought I just made myself quite clear. Last time, I looked in the dictionary, merits means exactly what you are discussing now. We don't want to discuss the merits of these affidavits as yet.
Just forget about Ms Bossard's request, I have dealt with that. I understand that you have certain applications to make. Let's get on with that.
MR SHANE: Sir, I would like the Committee to reconsider the application made last week, in respect of Mzwake Buthelezi, who is not, whose application has been lost. This is the application dealt with on Thursday.
I submit it is relevant to the opposition to amnesty by the Khanyile family. I am ready to proceed, I have supplementary affidavits and copies. My client was present a few minutes earlier on, he is there, I would like to call him up, please Mr chairman.
CHAIRPERSON: Mr Shane, before we proceed any further, let me get this clear. There is a person, a South African citizen, who alleges that he made an application for amnesty for whatever reason, to the Truth and Reconciliation Commission, namely the Amnesty Committee, do I understand it correctly so far?
MR SHANE: He made an application before or on the deadline day for amnesty.
CHAIRPERSON: That matter has not been set down, am I correct?
MR SHANE: That is correct sir.
CHAIRPERSON: It would see, I am informed, the reason for that matter or that alleged application, not being enrolled, is because such an application is either never arrived at the offices of the TRC or that it is not to be found. Am I correct?
MR SHANE: Sir, he says the application did not get to the TRC offices, correct, it was made on the 10th of May and it got lost from the time he signed his application, completed the form. It got lost. It could have got lost after it was handed to the TRC office at that time, at that time they were in the Sanlam Building, it could have been lost after it was given to them, or it could have been lost between the time it was signed by him and brought to the TRC offices.
CHAIRPERSON: Now last week, when you made a similar attempt to get this application on the role, I pointed it out to you that I was going to give you the time, and your client the time, until today, to do the necessary in order to satisfy this Committee that in fact, the document is not before this Committee through the fault of the TRC, not so?
Are you able to satisfy us on that score?
MR SHANE: I hope to Mr Chairman. I don't know if affidavits have been, further affidavits have been placed before you. I have a supplementary affidavit Mr Chairman, of the applicant. That is a short affidavit, just giving further details, and I have an affidavit of Sally Sealy before you.
There is another affidavit, it is just a confirming affidavit by George Ndlozi. Unfortunately, he is - I don't want to give you an unsigned document sir, he is not available to sign that affidavit. It is just a very short affidavit, basically confirming what Sally Sealy has said.
CHAIRPERSON: And now, what must I do with this?
MR SHANE: The affidavit of Sally Sealy and the applicant, supplementary affidavit of the applicant.
CHAIRPERSON: And now?
MR SHANE: Mr Chairman, I submit that on what you've got before you, it seems quite clear that Mzwake Buthelezi did on the 10th of May 1997, make application for amnesty together with very many other people.
I submit sir, that on the papers before you, it is quite obvious that what happened to his application, cannot be attributed to any fault on his part. Mr Chairman, with the greatest ...
CHAIRPERSON: Can it be attributed to any fault of the TRC, that is the issue?
MR SHANE: I submit Mr Chairman, from this he doesn't know, it got lost somewhere on the way. Mr Chairman, if you look at your mandate, your function here I submit with respect, is clear, your function is the promotion of national unity and reconciliation, and Mr Chairman, I submit there is nothing to suggest that anything underhand has gone on here.
The applicant as he says in his affidavit, became worried about this, when he didn't get a notice to attend the TRC hearings. He never ever before, he never checked if he got an acknowledgement, he didn't know about the acknowledgements. I submit that is not important Mr Chairman.
The fact is this, as the affidavit of Sally Sealy suggests, this is not the only application form that has gone missing, it could be human error. I submit it is no error on the part of the applicant, because he did make his application. He cannot say what happened to his application form.
Then it is also backed up by the fact that under oath, you heard from his co-applicant, I think it was Mutshatsha, who testified under oath that the applicant, Mzwake Mbuli was also there that day with him, when they filled in their forms.
Mr Chairman, I submit that your mandate says that you have to lean over backwards in favour of let's call him the applicant, although there are no papers before you, and I submit that on what you've got before you Mr Chairman, it is sufficient to allow the applicant to have an opportunity to satisfy you that he is entitled to apply for amnesty and get amnesty in terms of the Act.
Mr Chairman, I submit there is nothing more that this applicant or the proposed applicant, because he is not really an applicant before you, but I submit that it is quite clear from what you've got before you, that he was there.
I also ask you Mr Commissioner, to take into account what probably on the 10th of May 1997, what was for all involved, a major chaotic day, stressful, hectic, it is a day when things could have gone wrong. This could have possibly fallen in the car, anything could have happened to it, but this application form did not get to the TRC, that is what we know.
ADV GCABASHE: It did not get to the TRC?
MR SHANE: Sorry, it did not get to be processed by the TRC, I should rather put it. It might have got to the TRC offices as I said, and something happened to it thereafter, or before it got to the TRC offices, something might have happened to it, but from the applicant's point of view,he went on the last day to make application for amnesty and something went wrong with his application form and it vanished. That is all he can say Mr Chairman.
I submit that before you, you can be satisfied that he was there and he did apply with all his comrades for amnesty. That is clearly before you Mr Chairman, and I submit in the absence of anything to suggest otherwise, you must accept that with the greatest respect sir.
CHAIRPERSON: Are you done? Mr Shane, there is a few things I need you to clear up in making this application.
You are in fact making an application to get this on the role?
MR SHANE: Correct Mr Chairman.
CHAIRPERSON: It is common cause that it is not on the role?
MR SHANE: Correct Mr Chairman.
CHAIRPERSON: You have made certain submissions which include amongst others, that there is ample evidence to indicate that your client had in fact completed a form with the assistance of one Sally Sealy?
MR SHANE: Yes sir.
CHAIRPERSON: She says as I understand, that there were a number of applications that day that were put into a box and subsequently handed in to an employee of the TRC in Johannesburg?
MR SHANE: Correct sir.
CHAIRPERSON: You have gone further and says well, look, we accept that it is missing now, it could have got lost en route to the TRC offices, it could have got lost at the Johannesburg offices, it could have got lost en route from the TRC offices Johannesburg, to TRC offices in Cape Town, and that is why it wasn't processed?
MR SHANE: Correct Mr Chairman, I say that in so far as I was explained the procedure of these applications.
CHAIRPERSON: Yes. What would be the case or the position, if it was lost assuming I accept that the application form was completed, and intended to land up in Cape Town for process, what would be the case if it did not land at the TRC offices, Johannesburg and got lost in the motor vehicle or somewhere before then?
MR SHANE: Mr Chairman, let us assume then that for example the box, a big box, the box with all the applications were being carried to a car, Mr Buthelezi's application was right on top and the wind blew it away and it went missing before it got in the car, that is a similar scenario to what you have suggested, in that case Mr Chairman, I would submit that if the applicant was present, and you are satisfied that he was present and he filled in his form, then I would submit that you would give the applicant the opportunity to bring his application in circumstances like that.
CHAIRPERSON: Now, that would be an exception to the rule. Do you agree?
MR SHANE: To what rule Mr Chairman?
CHAIRPERSON: That by the 10th of May 1997 at, call it 12 o'clock in the morning, I think ...
MR SHANE: Yes, midnight?
CHAIRPERSON: Yes, such applications had to be submitted and not later. Do we at least agree on that?
MR SHANE: Mr Chairman, yes, that is what the Act says must be submitted.
CHAIRPERSON: Am I empowered to go beyond that?
MR SHANE: I submit with the greatest respect sir, you are empowered to go beyond that.
CHAIRPERSON: Show me the empowering clause.
MR SHANE: Mr Chairman, I can't show you an empowering clause, but if the purpose of your function is the promotion of national unity and reconciliation, Mr Chairman, there are no rules, there is no precedence, there is no court rules to go on, this is not a court of law, I submit by the very nature of the legislation, promotion of national unity and reconciliation, it would mean that your application of the rules should not in any way be restricted and I would submit Mr Chairman, that only if there were for instance, if there was evidence before you that the applicant was not there, that he was lying or that he came the following day, too late, that is a different issue.
I submit Mr Chairman, with the evidence of Sally Sealy, with the evidence of the previous applicant that Buthelezi was present, I submit that you cannot view it in a restrictive way with the greatest respect sir.
CHAIRPERSON: What is the test Mr Shane? Isn't the test to check and to see whether the application form completed, had reached the offices, it doesn't matter whether it was Johannesburg or Durban or Cape Town or East London, wherever, as long as it was in the hands of the Commission by twelve o'clock that day, is that not the test?
MR SHANE: Mr Chairman, I would say not, because if I may ask you this question, Mr Chairman, what would have happened for example if after having loaded the box in his vehicle, the TRC official on his way back to Johannesburg, say at half past eleven in the evening, got hijacked, which was a common thing then, and the whole box ...
CHAIRPERSON: Well, it would have been in the hands of the TRC, not so?
MR SHANE: It would have been in the hands of the TRC and there would have been no applications brought to the TRC, with respect Mr Chairman.
CHAIRPERSON: Then we would have handled it on that basis as accepting that the time restraints on applications, had been complied with, by twelve o'clock that morning, those applications should have been where it was supposed to be.
MR SHANE: Well, I submit Mr Chairman, because this application was handed to Mr George Ndlozi, a TRC official ...
CHAIRPERSON: Who said so?
MR SHANE: Sally Sealy says so, sir.
CHAIRPERSON: What did she say?
MR SHANE: I refer you to paragraph 6.
CHAIRPERSON: Read it.
MR SHANE: I handed the box to Mr George Ndlozi.
CHAIRPERSON: She handed a box, Mr Shane. How do we know that that box contained that application?
MR SHANE: Mr Chairman, if that is viewing it restrictively, I refer you to paragraph 5. In paragraph 5, Sally Sealy says I am surprised that this application form is missing as I took this form to the TRC offices at the Sanlam Centre, Johannesburg, at quarter to twelve on the 10th of May, along with many others, in a photocopy paper box.
CHAIRPERSON: I am sure she did it, yes. How do we know.
MR SHANE: Mr Chairman, if you are looking at it restrictively and if you are, there is someone who says this is not true, that is a different story, but Mr Chairman, there is nothing, I submit that it is quite clear that this is the same box she was talking about.
This was put in a box, she brought the box to, she gave the box to Ndlozi, a TRC official and in that box, was Mzwake Buthelezi's application form.
CHAIRPERSON: Does she say so?
MR SHANE: Well, she put it in the box. Mr Chairman, I mean if necessary, Sally Sealy is outside, I can if you like, I could call her. She was outside a few minutes ago.
CHAIRPERSON: Mr Shane, Mr Shane, you are not going to treat this hearing like an informal hearing.
MR SHANE: No, no sir, I ...
CHAIRPERSON: Now listen to me. We were talking about the scenario that you pictured, pen pictured here about the flying away with the ill-wind of this application form on the top of the box. What would be the position of the applicant then, that is where we were.
MR SHANE: Right, if his form when it was being loaded in the car or something, got lost, blown away or whatever, I would submit Mr Chairman, with the greatest respect, it was given to an official of the TRC and it was given before the deadline on the 27th of May.
CHAIRPERSON: If it was blown away, then it wasn't given to the TRC.
MR SHANE: No, no sir, I am saying if it was given, the box was given, it was put in a box, it was given to Mr George Ndlozi, it was in the box. George Ndlozi, being a TRC official, I submit that is sufficient.
CHAIRPERSON: Are we able to say that that application form completed, that application form that we are talking about, was in fact in the box at the time that box was handed over to the TRC official?
MR SHANE: I submit yes, sir.
CHAIRPERSON: How can you say that?
MR SHANE: Well sir, you know, at the time with respect, Sally Sealy was present, she was dealing with not one, numerous applications.
That is the procedure she adopted. No one can expect them to know about each individual piece of paper that they got. There were many, and the applicant, well Mzwake Buthelezi's was there, together with numerous others. His happens to be missing, like some others got missing. It is human error, it could have been on the part of Ndlozi, I submit that Ndlozi did receive it with the others.
CHAIRPERSON: Why does it have to be the fault of the TRC? Why is it only, the possibility only in respect of the TRC officials?
MR SHANE: Oh no, Mr Chairman, one cannot exclusively put the blame on the TRC, you cannot exclusively put the blame on the TRC, it is also possible, the possibility exists, but remember Mr Chairman, it is only a possibility, the possibility exists that maybe this form, maybe it dropped out of Sally Sealy's hands before she got to Mr Ndlozi. That is a possibility.
One will never know Mr Chairman.
CHAIRPERSON: Precisely.
MR SHANE: But because Mr Chairman, and I mean Sally Sealy can't say that that is impossible that that happened. Do you have to look at it because that might have happened, what you've got before you, is not sufficient to have this application heard?
CHAIRPERSON: Show me this clause that empowers me to do that.
MR SHANE: Mr Chairman, with respect, my submission with respect, the greatest respect is that you have power to do anything that is in the interest of the promotion of national unity and reconciliation.
There is no clause.
CHAIRPERSON: Where do you see that, where do you see that?
MR SHANE: Well Mr Chairman, that is the purpose of the Commission, to promote, I cannot give you the law, there is no Act that empowers you to do so.
CHAIRPERSON: Now let me tell you something. I am going to adjourn after I make these comments and I want you to go and consider it at home.
Section 19 says the Committee shall consider applications for amnesty, not amnesty for enrolment, applications for amnesty, that is Section 19(1).
Subsection (2), the Committee shall investigate the application and make such enquiries as it may deem necessary. Subsection (3), after the investigation, the Committee may inform the applicant of the application, etc, afford the applicant an opportunity to make further submissions, decide whether the application, judged on its particulars referred to above, relates to an act associated with a political objective. And so it goes on.
MR SHANE: And it only deals with applicants Mr Chairman, we don't have an applicant before you?
CHAIRPERSON: And it only deals with applications, and neither do I have an application before me.
MR SHANE: That is my problem Mr Chairman, and that is why I have ...
CHAIRPERSON: At least we have progressed, it is your problem, not mine.
MR SHANE: Well, it is my client's problem Mr Chairman, he wanted, he is concerned about it and he wants his application for amnesty to be heard.
CHAIRPERSON: You know Mr Shane, on Thursday when we adjourned, we wasted a day on Friday, we didn't sit, okay. We all agreed, including you that today would be the day you would consider your position and then finalise this.
MR SHANE: Yes.
CHAIRPERSON: You come with additional affidavits that don't help us at all. You still haven't satisfied me, these affidavits haven't satisfied me one bit, that this application form completed was in the hands of the TRC, either by way of agency or otherwise.
That was the test. Now you come and ask me to overlook that and listen to the application. If I must make a decision like that, it carries a lot of ramifications and implications. I am not empowered to do that.
MR SHANE: I understand that Mr Chairman, I am not asking you to overlook it, I am asking you to find that on the papers before you, on a balance of probabilities, obviously it can never be beyond reasonable doubt, but I am asking you to find that on the papers before you Mr Chairman, that on a balance of probabilities, his application was with the TRC, was handed to an official of the TRC. The rest as to what could have happened to it, is pure speculation. I will concede there is a possibility, there is a possibility that maybe his application didn't get to the hands or into the control of a TRC official, there is that possibility.
On a balance of probabilities, what you've got before you, you can find that his application was handed in timeously to the TRC or to a TRC official, on a balance of probabilities.
CHAIRPERSON: It is not that easy Mr Shane, because you argue from one point of view that because it was not processed, and because he attended this gathering where applications were made, the other applicants' applications were processed, therefore I can safely draw the conclusion that your client, or the applicant in this case, his application must have landed in the hands of the TRC. That is fine, that is one view.
The other view also is that because all the others were processed, why wasn't yours or your client's, if it was there?
MR SHANE: Mr Chairman, that the TRC is run by human beings, and human error creeps into everything. It could be human error.
CHAIRPERSON: I dare say that your client was also assisted by human beings?
MR SHANE: Yes, with the greatest respect Mr Chairman, he was assisted by human beings, and when I consulted with him, he is adamant that his form went in and he wants to make application for amnesty because he killed people. He also wants to go through this healing process or whatever one may call it, on a balance of probabilities, not beyond reasonable doubt.
On a balance of probabilities, you can find that his application was in timeously to the TRC, to an official of the TRC, on time, and something then went wrong. That I submit, it is possible that something could, but on a balance of probabilities, and that is all you need sir.
I submit you don't need anything before you beyond reasonable doubt.
CHAIRPERSON: I am not suggesting that. I must be satisfied, I am not even talking about a balance of probabilities. All I am saying is satisfy us. It is slightly easier.
Another issue I want to raise with you, you know that our attention has been drawn to what the deponement of one of your affidavits said in a criminal trial, correct?
MR SHANE: Yes Mr Chairman.
CHAIRPERSON: Now, what is the position about that? Can we rely on this affidavit, given that evidence?
MR SHANE: Absolutely sir, with respect.
CHAIRPERSON: On the one hand she says the this matter is not a political matter and then she goes about assisting people, making allegations that it was done for political reasons.
MR SHANE: Mr Chairman, I submit with the greatest respect that that whole passage was taken totally out of context, and I would ask you Mr Chairman, if you were to read, because I did discuss it with that person, and it appears that it was taken out of context, if the whole evidence that she gave and it relates to evidence that she gave in mitigation of sentence, she said usually, generally the killing of policemen is not a political offence, generally but it goes further.
I must be honest sir, I haven't read the whole report, but I have discussed it with her and my instructions are that it was taken out of context. Then in answer to your question, I submit that you can accept the affidavit of that person, in the application to hear Mzwake Mbuli, I mean Buthelezi, sorry sir, Mzwake Buthelezi, I apologise for that.
CHAIRPERSON: Do you agree that you are in no position to allege, or you provided no evidence at all, to say or to indicate that that application was in the hands of the TRC timeously, you are asking us to draw inferences?
MR SHANE: I am asking you to draw an inference, and I have also, as I have indicated sir, the affidavit, I do have another confirmatory affidavit of the person known as George Ndlozi, the TRC official. Unfortunately George Ndlozi was not available to sign the affidavit, although I did have a lengthy consultation with him, he had to run off before he could sign it. That wouldn't take you much further.
CHAIRPERSON: We are going to take overnight to consider this matter, and we will give a decision on it tomorrow morning. We will adjourn until tomorrow, nine o'clock.
ADV STEENKAMP: Thank you Mr Chairman.
COMMITTEE ADJOURNS
