CHAIRPERSON: Yes, will Mr Tshabalala come forward?
SIPHO VICTOR TSHABALALA: (sworn states)
CHAIRPERSON: Mr Honnorat.
EXAMINATION BY MR HONNORAT: Mr Tshabalala, did you know the deceased, Mr Jacob Manoto and what was your knowledge based on?
MR TSHABALALA: I knew him, we resided on the same street.
MR HONNORAT: Can you tell this Honourable Panel what happened on the 18th of April 1993 between yourself and the deceased Mr Manoto?
MR TSHABALALA: I was returning from Church in my church uniform. Mr Manoto called me and enquired as to how the church service was and I explained to him how it was and he asked me why was I carrying firearms inside my coat.
MR HONNORAT: And then?
MR TSHABALALA: And then he asked me if I knew that the Bible dictated that you should love your neighbour and I said "Yes, I know about that" and he asked me why am I carrying a firearm and I responded to him that I do not know what he was talking about, because I was not carrying any firearm. That is when I left him.
MR HONNORAT: Do you know of anything particularly relevant which took place the following day, Monday the 19th of April 1993?
MR TSHABALALA: Yes. On the 19th I was away at work. I received a telephone call at about 9 from my sister to the effect that police had come to my home, searching for firearms and they'd been sent there by Mr Manoto. They searched the house and they could not find any firearms. Then they went to Mr Makoba's home, doing the same thing and they did the same thing to Mr Mbatha's home as well.
MR HONNORAT: How did you know about these incidents?
MR TSHABALALA: I was informed by my sister, Thoko Tshabalala.
MR HONNORAT: What happened after that?
MR TSHABALALA: She then told me that two comrades had arrived at my home to inquire about what they police were doing at my home and they explained and those two gentlemen suggested that we should go to the organisation and explain what had taken place.
MR HONNORAT: Now what organisation were you part of at the time, I mean, of the killing of the deceased in April 1993?
MR TSHABALALA: I was an ANC supporter.
MR HONNORAT: And this organisation which was supposed to be informed about what happened concerning the police searching your premises, what organisation are you referring to?
MR TSHABALALA: It was the ANC Youth League.
MR HONNORAT: So did you discuss the matter of the police having searched your premises for a possible firearm?
MR TSHABALALA: Yes. When I arrived home from work, I discovered that some family members had already left and I also followed them.
MR HONNORAT: What decision was taken at the ANC Youth League?
MR TSHABALALA: The decision that was taken was that the informer should be killed, but Themba expressed an opinion that the matter should be discussed with the Street Committee and the elders as well.
MR HONNORAT: Was there any other meeting after that, after the 19th of April meeting?
MR TSHABALALA: Yes, there was.
MR HONNORAT: When and where?
MR TSHABALALA: It was the meeting of the 21st of April.
MR HONNORAT: Was it at the Lutheran Church of Diepkloof, Zone 5?
MR TSHABALALA: That's correct.
MR HONNORAT: What was the outcome of that meeting?
MR TSHABALALA: That meeting decided that Mr Manoto should be killed.
MR HONNORAT: Did your mother speak at that meeting?
MR TSHABALALA: I do not know because when I arrived the meeting was already in progress.
CHAIRPERSON: Mr Honnorat, just a minute. Can somebody just, can I ask you for a favour, can you just hand this to him please? Thank you. This was handed to me, it's apparently documentation that relates to your client's matter as well. There are no copies, those are the only ones that we have at this stage, so we haven't been able to duplicate it. You might want to have a look at that as well before you complete your evidence-in-chief.
MR HONNORAT: Can I then have a look, I mean, together with the applicant?
CHAIRPERSON: Yes.
MR HONNORAT: I'm indebted to you, to the Chairperson.
CHAIRPERSON: Just switch off that other microphone, it records. It might assist us to stretch our legs as well.
MR HONNORAT: Yes, for a minute or two Mr Chairman.
CHAIRPERSON: Yes, we'll stand down just for a few moments.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Yes, Mr Honnorat.
SIPHO VICTOR TSHABALALA: (s.u.o.)
EXAMINATION BY MR HONNORAT: (cont)
Yes, Mr Tshabalala, then the decision was taken at the 21st of April meeting of which you have informed this whole Panel about. What happened after that?
MR TSHABALALA: Thereafter we all left and we proceeded to the house and on our arrival, we discovered that there was already a fight going on and when we arrived there, I also took part in throwing stones at Mr Manoto.
MR HONNORAT: So, you took part by throwing stones at Mr Manoto. Did you take any other positive part in the events of that day in the assaults against the deceased and members of his family?
MR TSHABALALA: I kicked Mrs Manoto.
MR HONNORAT: Why did you do that?
MR TSHABALALA: I did it because her husband was an informer, therefore they were in the same boat.
MR HONNORAT: Right, when did you become convinced that her husband was an informer?
MR TSHABALALA: I became convinced when he sent police to my home to search for those firearms, that is when I realised, yes, he is indeed an informer.
MR HONNORAT: Did you get any other information from other comrades about the feelings, suspicion, evidence that he was in fact a police informer?
MR TSHABALALA: There isn't any other evidence that I received from the comrades.
MR HONNORAT: Was there, or there wasn't?
MR TSHABALALA: There was no evidence that I received from the comrades, it was just something that I realised.
MR HONNORAT: Was the fact that he was a police informer discussed at the meeting of the 21st of April at the church?
MR TSHABALALA: Yes, it was discussed.
MR HONNORAT: Did people express their opinions that he was in fact a police informer, the deceased?
MR TSHABALALA: Yes.
MR HONNORAT: Did it strengthen your conviction that he was in fact a police informer?
MR TSHABALALA: That is true.
MR HONNORAT: Did you know, when you were by the deceased's place and you were throwing stones and then you kicked his wife and you were taking some part in those events, that those events would result, or likely to result in the death of the deceased?
MR TSHABALALA: I knew that he might die.
MR HONNORAT: Did you also associate yourself with that action, with the purpose behind that action carried out by a group of comrades at the scene?
MR TSHABALALA: That is correct.
MR HONNORAT: Was it because of him being an informer, as you state, in your firm conviction?
MR TSHABALALA: That's correct.
MR HONNORAT: Or was it caused by personal reasons, personal antipathy, hatred, animosity towards the deceased for something he has done to you in the past as neighbour or whatever?
MR TSHABALALA: I associated myself for the reason that he had indicated, clearly indicated that he was capable of having me killed for that reason that he sent the police because the police would take you, remove you from your home and kill you at some other place and for that reason, that indicated to me that he did not have my welfare at heart.
MR HONNORAT: Would you regard the motivation for you associating with the action of killing him and assaulting the members of his family as a political motivation?
MR TSHABALALA: Yes.
MR HONNORAT: Why are you saying so?
MR TSHABALALA: Because he was a police informer.
MR HONNORAT: Do you feel any need to express your apologies to the family of the deceased, at this later stage, now that the struggle has been completed and the political situation which prevailed in the townships at the time, has changed?
MR TSHABALALA: Yes, I would be very happy to meet them, so that I could apologise to them for what happened. It was not my intention to commit such an act, but it was done because of the situation at the time, therefore I would like very much to meet them and apologise in person.
MR HONNORAT: Now Mr Tshabalala, there's a document here which starts with a legal profile concerning yourself, your name, your prison number etc, a paragraph concerning political motive and there's a signature at the bottom of this document. Is that your signature?
MR TSHABALALA: That's correct.
MR HONNORAT: Who compiled this profile and wrote down this political motive? Was it yourself?
MR TSHABALALA: Somebody wrote it on my behalf at the Maximum Prison.
MR HONNORAT: What's the name of that person?
MR TSHABALALA: Mr Nkosi.
MR HONNORAT: Is this your handwriting, the profile, the political motive, I'm not talking about the signature, the rest of the pages, is that your handwriting?
MR TSHABALALA: That is Mr Nkosi's handwriting.
MR HONNORAT: Okay and then there is a letter which starts with your name and the address of the prison and addresses the addressee of the letter by the reverential title "Sir" and concludes on the following page with the words, "Very sincerely, Victor Sipho Tshabalala" and then there are also some details concerning yourself. Now is this your handwriting, the two pages of this document?
MR TSHABALALA: I requested him to write it on my behalf.
MR HONNORAT: And did you sign it anywhere on the two pages of this document, this letter, addressing some unspecified Sir?
MR TSHABALALA: I do not really remember if I did sign anywhere.
MR HONNORAT: Okay, now can you tell the Honourable Panel, what did Mr Nkosi indicate to you the purpose behind the writing of these and the signing of these was concerned and how did you view it? How did you understand it, the purpose thereof? The indication from Nkosi and your understanding of the purpose?
MR TSHABALALA: He informed me that if I want to be released from prison, he would assist me in that I would tell him something that he would put on paper and he also told me that I could write just about anything that would release me from prison, that is when this letter was written.
MR HONNORAT: Did he ask you to say and for him to put on the letter, what kind of explanation you had tendered in court to promote the cause of your innocence at the time of the court proceedings?
MR TSHABALALA: Yes, he did question me about what I said in court and I also explained to him that I denied any knowledge about the death of Mr Manoto.
MR HONNORAT: Now was it explained to you that this was an application for amnesty and that the Truth and Reconciliation Commission would have given you a fair hearing in a safe situation where you would feel free to tell the whole truth to the Commission, including any possible involvement in any offences you committed in the past? Was that, I mean, brought home to you at the time of compiling this document and having you append your signature to it?
MR TSHABALALA: He did not explain that to me.
MR HONNORAT: Do you understand now what the purpose of the Truth and Reconciliation Commission and specifically its Amnesty Committee is?
MR TSHABALALA: Yes, I do.
MR HONNORAT: Did you feel free when giving your evidence today in front of this Honourable Committee, that you understood the reason for this Commission and that therefore you felt free to say the whole truth, frankly and fully about what happened the date of the killing of Mr Manoto and your participation in it?
MR TSHABALALA: Yes, I am free.
MR HONNORAT: Do you confirm that what was written down in this document does not represent the truth?
MR TSHABALALA: That is correct.
MR HONNORAT: And have you given a full and frank disclosure today, feeling safe to do so, to this Honourable Committee?
MR TSHABALALA: That is correct.
MR HONNORAT: Is there anything further you would like to add to your evidence you have given before?
MR TSHABALALA: Yes. When I return from night services, night church services, I would regularly see police vehicles parked at his home. This happened for weeks on end, but I did not concern myself about this because it did not concern me. He just kept his business with the police to himself, but when he sent them to me, I realised that he must be on to something. I then realised that he must be on a mission to eliminate the comrades. I can also mention that I did not get an opportunity to physically attack Mr Manoto because just as I kicked Mrs Manoto, I received a message that my sister had fainted. I then had to go home and proceed to take my sister to the hospital. This hurt me because I had also wanted to take part in the attack of Mr Manoto. That is all.
MR HONNORAT: Did you stand to obtain, or did you obtain any financial gain from the killing of Mr Manoto and assaults on these members of his family, hence specifically your contribution therewith?
MR TSHABALALA: No, I did not receive any compensation, only hardships.
MR HONNORAT: I've got no further questions.
NO FURTHER QUESTIONS BY MR HONNORAT
CHAIRPERSON: Thank you Mr Honnorat. Ms Vilakazi, any questions?
MS VILAKAZI: Just a few questions for the sake of clarification.
CHAIRPERSON: Yes certainly.
CROSS-EXAMINATION BY MS VILAKAZI: Mr Tshabalala, I just want to be clear about the statement that is on page 41 and 42 of the bundle. Do you have knowledge of that statement?
MR HONNORAT: Perhaps Mr Chairman, if somebody can read it out to him, so that he can have an understanding of what the document is all about, he doesn't just read English on his own.
CHAIRPERSON: Yes, or at least - what did you want to know about this thing?
MS VILAKAZI: Apparently there are some things that were written on behalf of Mr Tshabalala which he denies he ever said, so I just wanted to know if he also denies this statement, so that we don't use it fro cross-examination purposes, or whether he associates himself with it.
CHAIRPERSON: No, then I think somebody will have to just, I don't know if he can read that in English, perhaps somebody must just interpret that to him.
MS THABETHE: Sorry Mr Chair, I don't know whether this will be of assistance. I have just given a hand-written statement to the legal representatives so maybe the start would be to know whether that's his handwriting there.
CHAIRPERSON: Yes.
MS THABETHE: Yes, because if it is, then we'd assume that he wrote it himself and he should understand English.
CHAIRPERSON: Yes, just before - sorry, Mr Honnorat, Mr Zulu, I just want to ask him, is he looking at that hand-written document?
MR ZULU: That's correct.
CHAIRPERSON: Mr Tshabalala is that your hand-writing on that document?
MR TSHABALALA: No, it's not mine.
CHAIRPERSON: Alright. So you haven't written that document?
MR TSHABALALA: Yes, I didn't write down this statement.
CHAIRPERSON: Do you recognise the statement, whatever it is, I'm not sure what it is. I haven't seen it. Whatever that document is, do you recognise it?
MR TSHABALALA: Yes I recognise the handwriting.
CHAIRPERSON: Whose handwriting is it?
MR TSHABALALA: There is someone who came to me in prison saying that he/she is coming from the Truth Commission and it is the person who took this statement.
CHAIRPERSON: Somebody from the Truth Commission. Is that statement signed? Just have a look.
MR TSHABALALA: Yes.
CHAIRPERSON: Yes, what is there, is there anything in particular that you want to raise with regard to this statement, because it seems to have been taken by somebody?
MS VILAKAZI: I just wanted to verify two things from that statement.
CHAIRPERSON: Won't you deal directly with them?
MS VILAKAZI: Okay. In the meeting, let us not focus on the statement then, in the meeting that was held to discuss the question of Mr Manoto being an informer, did you make any contribution in that meeting?
MR TSHABALALA: Nothing.
MS VILAKAZI: What was your reason for not participating, for not saying anything?
MR TSHABALALA: I arrived in the middle of the meeting.
MS VILAKAZI: But was the issue still being discussed, the issue of Mr Manoto being an informer, was it still being discussed when you arrived at the meeting?
MR TSHABALALA: Yes.
MS VILAKAZI: So you may have said what you wanted to say because you were still talking about it, is that not correct?
MR TSHABALALA: Yes.
MS VILAKAZI: But you decided not to say anything, is that correct?
MR TSHABALALA: I didn't have the chance to speak because it was full when I arrived and when people were speaking.
MS VILAKAZI: But you've just said that you would have said something if you wanted to.
MR TSHABALALA: If I arrived at the meeting in time, before the meeting started.
MS VILAKAZI: Okay, there's another sentence in that statement, its on page 42, which I want you to clarify the House as to whether you stand by it or you refute it now. Paragraph 6, after relating about the meeting, the first sentence in paragraph 6, it says "I went straight home." Do you still maintain that after the meeting you went home?
MR TSHABALALA: No. The person who arrived the prison was writing things which I never said and he was not very conversed in English, he himself, because there was even another one, a young man, who will caution him to say "Don't write like that, this person said that and that."
MS VILAKAZI: Okay, let us now go to the events leading to the death of Mr Manoto. You said in your evidence that you did not get the opportunity to physically kick Mr Manoto. Did I hear you correctly?
MR TSHABALALA: I never said I never got a chance to kick him, I said to lay my hand on him.
MS VILAKAZI: Did you do anything to Mr Manoto?
MR TSHABALALA: No nothing, except that I did throw stones. Himself, I didn't touch him.
MS VILAKAZI: Did you assault any of his family members?
MR TSHABALALA: Yes, Mrs Manoto.
MS VILAKAZI: I would like to refer you to some statements which were uttered by the Judge in his Judgment, page 64 and I ask the legal representative to assist you there. Page 64, line no. 7. The judge said he also heard accused number 2, and he was referring to Marvin, he also heard accused number 2 saying that
"a person who speaks like that to me does not live"
What is your comment about that statement?
MR TSHABALALA: I never said it, I don't know anything about it.
MS VILAKAZI: So you're denying that you ever said that statement, you uttered those words?
MR TSHABALALA: I never uttered such words to Mr Manoto.
MS VILAKAZI: I have no further questions.
NO FURTHER QUESTIONS BY MS VILAKAZI
CHAIRPERSON: Thank you, Ms Vilakazi. Yes Mr Masagela.
MR MASAGELA: Thank Chairperson. I just have some few questions.
CROSS-EXAMINATION BY MR MASAGELA: Mr Tshabalala, in your testimony you just said, immediately after you got information that your house was searched, you reported the matter to the comrades, is that correct?
MR TSHABALALA: That's correct.
MR MASAGELA: And a meeting was subsequently held.
MR TSHABALALA: Yes.
MR MASAGELA: And you discussed Mr Manoto in that meeting?
MR TSHABALALA: That's correct.
MR MASAGELA: Is it also correct that a resolution was taken that "impimpis" must be killed?
MR TSHABALALA: Yes.
MR MASAGELA: Is it correct that you were referring to Mr Manoto?
MR TSHABALALA: ...(no English interpretation)
MR MASAGELA: Is it correct that you said "impimpis" must be killed, when you resolved in that meeting that "impimpi" must be killed, you were referring to Mr Manoto?
MR TSHABALALA: Yes.
MR MASAGELA: And you also testified that a meeting was subsequently held on the 21st, where Mr Manoto was once again discussed.
MR TSHABALALA: Yes.
MR MASAGELA: And it was also resolved in that meeting, if I heard you correctly, that Mr Manoto must be killed?
MR TSHABALALA: Yes.
MR MASAGELA: And was this decision, I mean all those - both decisions, am I correct that they were taken collectively?
MR TSHABALALA: Some of us still wanted to discuss the matter further, since we were mixed, there were other people, there were young people and then other people were not even comrades and we were mixed, there were people who didn't want this to happen, there were others who were for the idea that he should be killed.
MR MASAGELA: But can you say that, I mean is it correct that the majority of the people were saying Mr Manoto in that meeting, the majority of the people were saying Mr Manoto must be killed?
MR TSHABALALA: Yes.
MR MASAGELA: Mr Tshabalala, in your statement, I just want you to confirm some of the things that were written in your statement. I'm referring to page 42 of the bundle, the fifth paragraph. You just said, in the statement you said
"Anna Gumede said that parents know nothing about politics. She said comrades must go and kill that dog. Ms Anna resides at 5508, Zone 5 Diepkloof."
That was at the end of the meeting. Do you confirm to that statement, do you confirm that?
MR TSHABALALA: Yes, I do confirm.
MR MASAGELA: And when Ms Gumede uttered those words that you must go and kill that dog, how did you understand it?
MR TSHABALALA: I understood it mean that Ms Gumede was now fed up with this informer.
MR MASAGELA: Mr Tshabalala, does Ms Gumede have any authority to instruct people in that meeting to go and kill Mr Manoto?
MR TSHABALALA: I will say she does because she was once at a certain stage a member of the Street Committee.
MR MASAGELA: Mr Tshabalala just said that the decision to kill Mr Manoto was taken collectively, so how do you reconcile that? It can be taken, I mean the decision can be taken collectively and that Ms Gumede can also give instruction to people to kill, how do you reconcile the two?
MR HONNORAT: Mr Chairperson, I object to the question. He didn't say that both - he was asked whether both decisions on the 19th and 21st were decided collectively. That was a question put to him and he replied that specifically the 21st of April meeting, some of us still wanted to discuss this matter because it was a mixed group with elders and even non-comrades, so at no time did the applicant say that in fact it was a collective decision, he spoke in fact specifically subsequent to another question to a majority decision, so I object, that I mean, he never said such words.
CHAIRPERSON: Yes, well yes, majority took the decision at the meeting of the 21st of April 1993 to kill. I think you are asking the opinion of this applicant, you want to know if she could order them to go kill and you know, he expresses a view, he says she was once a member of the Street Committee, possibly she could have had the authority. I don't know to what extent that is really material to what we have to decide, whether she had the authority or not. Either it's in dispute whether she said the words and if she didn't say the words, she didn't say the words, if she said the words, she said the words, whether she had authority to order people to go and kill is a different story. I don't know whether that is really in dispute in this matter.
MR MASAGELA: I'm indebted to you Mr Chair. Mr Tshabalala I just want you to clarify, when the people left the meeting and went to Mr Manoto's house, what was the purpose to go and kill Mr Manoto at the house, or were they going to fetch him to the meeting?
MR TSHABALALA: The aim was to go and kill him as he was an informer.
MR MASAGELA: Mr Tshabalala, Mr Fakude has testified earlier that the purpose of the people leaving the meeting there was to go and fetch Mr Manoto from his house to the meeting again. Do you have any comment?
MR TSHABALALA: I would say to him, you might perceive it like that, but I'll say that is a mistake because the aim was to kill him, because the decision had already been taken.
MR MASAGELA: Mr Tshabalala, my instructions are that Ms Gumede never uttered those words, that comrades must go and kill that dog. My instructions are that Ms Gumede told the meeting that she was leaving because the following day she was going to work and that now that this matter of Mr Manoto cannot be resolved between the youth and the elderly, she's leaving and then you will, the people in that meeting will decide what to do with Mr Manoto and then she left the meeting. Do you have any comment?
MR TSHABALALA: In Ms Gumede's issue, I will ask us not to dwell much on it because it's possible that I might not have heard well what she said, maybe I misunderstood what she said.
MR MASAGELA: Now are you saying that it's possible that you may not have heard properly when she addressed the meeting?
MR TSHABALALA: Yes.
MR MASAGELA: No further questions, thank Mr Chair.
NO FURTHER QUESTIONS BY MR MASAGELA
CHAIRPERSON: Thank you Mr Masagela. Ms Thabethe have you got any questions?
MS THABETHE: Yes, Mr Chair, I do.
CHAIRPERSON: Go ahead please.
CROSS-EXAMINATION BY MS THABETHE: Mr Tshabalala, I also want to clarify a few issues that you've raised about the statements that you say were not written by yourself. You've indicated that some of the contents or all of the contents of that statement, I'm not sure, maybe I should ask you. Are the contents in these two statements, the one that is in the bundle and the other one that you say was written by Mr Nkosi, are you denying the whole content of these two statements, or there are some portions that are true in the two statements?
MR TSHABALALA: I would say I deny everything in the statement which I gave to Nkosi because he didn't explain to me.
MS THABETHE: Okay, just to make this easier I've summarised the letter that you say was written by Mr Nkosi into four points. I'll just mention them and I want you to confirm that it's not true, one by one. The first point is that you say you were not present when Mr Manoto was killed. The second point is that you went to hospital after your sister had fainted. The third point is that you are innocent, you don't want to destroy your future for something that you did not do. Now are you saying that it's not true, you were not present when Mr Manoto was killed?
MR TSHABALALA: At the time on which Mr Manoto was killed, I wasn't present, I didn't even see how he was killed.
MS THABETHE: So is it correct that you were not present when he was killed?
MR TSHABALALA: Yes.
MS THABETHE: So which means that what is here is correct, that portion of the letter is correct.
MR TSHABALALA: You mean when they were killing Mr Manoto?
MS THABETHE: No. In the letter that is written by Mr Nkosi, you indicate that there is nothing that is correct there and in the letter that is written by Mr Nkosi, it indicates that you were not there when Mr Manoto was killed and you are saying that's correct, so we should take it that portion of the letter is correct, isn't it?
MR TSHABALALA: Yes, I wasn't present at the time when he was killed.
MS THABETHE: Right. Secondly, you say you went to hospital after your sister had fainted, is this fact correct or not?
MR TSHABALALA: That's true.
MS THABETHE: And thirdly you say you are innocent, you don't want to destroy your future for something you did not do, is this correct or not correct?
MR TSHABALALA: I said I'm innocent. I was trying to explain to this man that I didn't even touch Mr Manoto or kill him.
MS THABETHE: Right. So you would agree with me that some of the portions in this letter that was written by Mr Nkosi, are true, isn't it? You've just confirmed that.
MR TSHABALALA: Yes some of the things.
MS THABETHE: Right, we come now to the statement that you say was written by one of the TRC members. I'm not sure who it is, but I'm a TRC official as well and I have to question you on it because you have indicated that he did not understand English. Right, in this statement it's also indicated that you say you were not present when Mr Manoto was killed. This is indicated at paragraph 6 of your statement. Also in paragraph 6 it's indicated that you went to hospital after your sister had fainted. Would you agree with this?
MR TSHABALALA: Yes.
MS THABETHE: So my question is, you have indicated that this is also, this statement in the bundle contains information that is not correct. Would you like to withdraw that statement?
MR ZULU: Could I interject, Honourable Chair. In fact this original statement is exactly the same thing which is, it's exactly the same statement which is in the bundle, so in other words my learned friend is actually questioning him in respect of one and the same thing, although this one is hand-written, that's the only difference, and this one is typed.
CHAIRPERSON: Yes, I assume that.
MS THABETHE: Mr Chair, can I respond to that?
CHAIRPERSON: Yes.
MS THABETHE: Initially I questioned the applicant on the statement that was written by Mr Nkosi, which contained the same facts as the statement that was taken from the applicant by our TRC official.
CHAIRPERSON: Yes. Right.
MS THABETHE: And the applicant is claiming that the contents contained in these two statements are not true.
MR TSHABALALA: Yes, I assume what he's saying is that to the extent that anything contained in those documents differs from what he said in testimony, that wouldn't be true, that's what I understand he's trying to tell us. So I don't know where we're going to now.
MS THABETHE: Yes. Mr Chair, I just wanted him to clarify that because he said a TRC official came to him, took a statement of something he did not say, which means that the TRC official didn't understand English, hence this whole exercise.
CHAIRPERSON: Yes.
MS THABETHE: Just to prove that the TRC official took a statement based on what he told the TRC official, because it's the same statement that was written by Mr Nkosi and it's the same evidence that he gave in court.
CHAIRPERSON: Yes, but now, what is the dispute? Is there a dispute between the contents of any of those things and the testimony that he'd given here today?
MS THABETHE: Yes, Mr Chair.
CHAIRPERSON: Alright, now put that to him and let's leave this whole exercise of trying to say who wrote, who understood English and who wrote what who said, just deal with whatever is apparently a contradiction and let him respond to it and tell us whether it's true or not.
MS THABETHE: I was trying to do that, Mr Chair, because in his own evidence he says nothing is the truth in these two statements.
CHAIRPERSON: Yes, I mean look, he hasn't got the stuff in front of him, we haven't given him an opportunity to read through these things, what do you expect us to do?
MS THABETHE: I went through the points one by one, Mr Chair, precisely to assist him because I'm aware that he might not remember everything that was contained in these two statements.
CHAIRPERSON: Yes, I know what you're saying, I hear what you're saying and I'm asking you, deal with whatever you suggest is contradictory in those things to what he has said in his testimony and he'll respond to it. Let's get down to what matters in this case, please.
MS THABETHE: Mr Tshabalala, I put it to you that the statement that was written by Mr Nkosi and the statement that was written by a TRC official contain true information that was furnished by you and that you've contradicted yourself in your evidence that it does not contain statements that were given by you. What is your response to that?
MR TSHABALALA: I didn't understand you very well.
MS THABETHE: Can I be allowed to explain in Zulu, Mr Chair?
CHAIRPERSON: Yes, why don't you, I don't have these things in front of me, I'm not particularly minded at this stage to scour through these statements, are there any contradictions between his evidence under oath today and the contents of those statements? If there is, why don't you just put that section of those documents to him and let him comment on it if you want to.
MS THABETHE: Mr Chair, the contradiction is he says the statement that were written by Mr Nkosi and the statement that was written by a TRC official is not true, so unfortunately in the statements there are many points that were raised and I've raised those points with him to show they are true and that's what I'm putting to him, that the statement he gave in his evidence earlier on, that these statements are not true, is false.
CHAIRPERSON: Yes, but please, I don't know where that takes us to. What I'm interested in is, is there anything in there that conflicts with his version, not his view on the veracity or otherwise of these documents, that doesn't help us, is there anything in there that you want to deal with that is material that contradicts the testimony of the applicant on the merits of this case before us, on the incident not on these peripheral things? That will assist us, if there's anything, and let him comment on it. If something is written down in any one of those documents that contradicts his evidence in respect of the merits of this matter, why don't you put that to him and let him deal with it, if he can? That will help us.
MS THABETHE: Okay, Mr Tshabalala, I'm putting it to you that in these two statements and also in court, you indicated that you were not present when Mr Manoto was attacked.
CHAIRPERSON: No, no, when he was killed. Wasn't your earlier proposition when he was killed?
MS THABETHE: Maybe I should read it, Mr Chair.
CHAIRPERSON: Because how I understand the applicant's evidence is that when, at a point, when Mr Manoto was killed he wasn't present. He doesn't know when he was killed, but he was part of the attack. He threw stones at Mr Manoto, he kicked his wife, he was present on the scene, not at the point of the killing, that is the issue now. Does that leave anything in dispute, because if it doesn't then move on to something else that does leave something in dispute.
MS THABETHE: But Mr Chair, I want to put it to him that what he has raised today, contradicts what he has told to the TRC official, to Mr Nkosi and also to the court, because in court he clearly says the comrades were busy throwing stones towards Mr Manoto and he says he was standing in front of his door looking towards Mr Manoto's house.
CHAIRPERSON: Yes, ask him that.
MS THABETHE: Suggesting that he was not present.
CHAIRPERSON: Yes, please ask him, I don't know how much it's going to help to be debating what happened in court, we know what happens in courts, those things are of very little value in general, but don't get stuck on questions which are not really points in dispute, because I hope you understand that, what the applicant is trying to tell us in respect of the killing of Mr Manoto, not in respect of the attack, of the killing because there doesn't seem to be any dispute.
MS THABETHE: Maybe I should raise this in argument, Mr Chair, because I hold the view that today we are hearing a different version from the one that was told to Mr Nkosi, from the one that was told to our TRC official and from the one that was told in Court. These three versions are consistent.
CHAIRPERSON: Yes, in court you say that he said that he stood in front of his door. That's one issue.
MS THABETHE: Yes, he was not there when the attack took place. He says the same thing in ...(intervention)
CHAIRPERSON: No, listen please, just listen.
MS THABETHE: Yes.
CHAIRPERSON: That on the face of it seems to contradict what he's telling us now, what he said to court. Okay?
MS THABETHE: Yes.
CHAIRPERSON: Now, let's - you can deal with that one, because on the fact of it, is a contradiction. Whatever the weight of that is, is something that we must think about. The question of the killing, I don't want you to waste time on it. I'm just trying to ascertain whether you understand the evidence of the applicant in respect of that particular incident. He doesn't say he wasn't present during the attack, he says he wasn't present at the point of the killing. Do you follow that? You understand that point?
MS THABETHE: I understand that Mr Chair.
CHAIRPERSON: When Mr Manoto was actually executed. When he was burned out, when he was killed, not the attack. He says when he was killed, at that point in time, he wasn't present. You follow?
MS THABETHE: Mr Chair. I follow.
CHAIRPERSON: Yes, thank you, alright, then we shouldn't have a misunderstanding on that one.
MS THABETHE: I follow Mr Chair, but in the statement ...(intervention)
ADV BOSMAN: Excuse me, if I may, perhaps I can assist Ms Thabethe here.
MS THABETHE: Yes.
ADV BOSMAN: Ms Thabethe, I suggest what you're getting at is you want to put to him the statement where he says he went straight home, the comrades were busy throwing stones and he was standing in front of the door. That is what you want to put to him.
MS THABETHE: Suggesting that he did not partake.
ADV BOSMAN: Well put that to him, then the whole solution, the matter will be resolved.
CHAIRPERSON: Right go ahead, let's see how far you can take it now.
MS THABETHE: Thank you Mr Chair. Mr Tshabalala, in your statement to the TRC official and in court and also in your statement to Mr Nkosi you indicate that from the meeting you went straight home, you did not partake in the throwing of stones at Mr Manoto, because you were standing in front of your door looking towards Mr Manoto's house and thereafter you took your sister to hospital. What is your response?
CHAIRPERSON: Now is that true or false?
MR TSHABALALA: It means they didn't understand me. I never said when I left the meeting, I went straight home. They have written things which I never said. They didn't write exactly the sequence as to when I left the meeting, where did I go.
MS THABETHE: I find that very strange, that two people who don't know each other, can write the same thing and they claim that it comes from you and you come and say they did not have authority to write that. I find that very strange. What is your response to that?
CHAIRPERSON: Yes, isn't that a matter of argument? Can you get on to cross-examination, if you have questions?
MS THABETHE: I wanted him to respond to that, Mr Chair.
CHAIRPERSON: No, no, that's - no, I'm not going to get him to respond to that, that's argument.
MS THABETHE: In that case I'll raise it during argument.
CHAIRPERSON: Yes.
MS THABETHE: Yes.
CHAIRPERSON: What are the other questions?
MS THABETHE: Mr Chair, whatever I had, I think I'll raise it in argument.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Yes. Perhaps it will assist us in that way rather. Has the Panel got any questions?
ADV BOSMAN: Mr Tshabalala, did you, or anybody else on your behalf, ever fill out an application form for amnesty?
MR TSHABALALA: Will you please repeat the question?
ADV BOSMAN: Did you, or anybody on your behalf, ever fill out an application form such as your co-applicants', to ask for amnesty?
MR TSHABALALA: Someone completed it on my behalf.
ADV BOSMAN: Do you remember who it was?
MR TSHABALALA: I can't remember whether it was Patience. Patience yes.
ADV BOSMAN: Now when the person from the TRC came to see you, did he explain to you why he came to see you?
MR TSHABALALA: That person explained that he/she has been sent by Peter Shabangu.
ADV BOSMAN: Did he perhaps explain to you whether you must be a witness, or did he say he's taking this for your application, this statement?
MR TSHABALALA: It was taken on the understanding that I will be a witness.
ADV BOSMAN: Alright, thank you.
MR ZULU: Sorry Mr Chair, the Honourable Panel, if I could just clarify certain issues, because I'm well conversant about the person that came to make the applicant complete this form, it's Patience, who is the legal officer of the ANC.
CHAIRPERSON: From the TRC desk?
MR ZULU: No, the ANC.
CHAIRPERSON: Yes, the ANC TRC desk?
MR ZULU: And then the person, I should think, the applicant is referring to, is actually the investigating officer from the TRC, Mr Maghadla, who has visited the applicant at Leeukop Prison and Mr Maghadla was in fact in possession of the whole court record, which I actually submitted to him to peruse through, so the possibility is that some of the information contained herein, might have been extracted from the court record, as such. There is just that confusion Mr Chair.
CHAIRPERSON: Did the investigator know at that point that you were representing Mr Tshabalala as well?
MR ZULU: That's correct.
CHAIRPERSON: He knew that.
MR ZULU: He knew that.
CHAIRPERSON: Did he ever send this thing to you for your comment, this document?
MR ZULU: No not at all, it's actually for the first time that I come across it.
CHAIRPERSON: He has never been in touch with Mr Shabangu through your offices as it were, through your facilitation.
MR ZULU: No in fact I was actually informed by him that he's been to see the applicants, all of them. He, in fact, as the applicant is mentioning that this person, when he came to him he told him that Peter Shabangu sent him. In fact the investigating officer mentioned it to me officially that one of the applicants has already confessed everything to him and that's Peter Shabangu, so you know, whatever he's just said related to the person who visited him in what do you call it, confirms my conversation with the investigating officer of the TRC.
CHAIRPERSON: Thank you. Thank you very much. We've noted that. Is there any re-examination Mr Honnorat?
MR HONNORAT: No re-examination.
NO RE-EXAMINATION BY MR HONNORAT
CHAIRPERSON: Not. Thank you. Yes, Mr Tshabalala, you're excused.
WITNESS EXCUSED
MR ZULU: Mr Chair and the Honourable Panel, if I may interject at the same time. Well of course this just comes of late. I've just been furnished instructions by two persons who actually didn't apply initially and who were actually accused in this matter, that's now accused 1 and accused number 3 in the matter, so according to the information that I gather from them, that nobody actually had approached them to complete the forms, they have always been willing. They're not part of the section which is in Leeukop, they're actually in Johannesburg prison. They were juveniles at the time of conviction. Accused number 1 was
actually 14 years and accused number 3 was 16 years and so when the application process was going on, they were actually refused by, so I'm told, by the prison warders, to have access to the application forms, or to have the representative from the ANC office, to consult with them. However, they are saying in fact, they should be made part and parcel of this process because they are willing to, you know, apply for amnesty and at the same time they're willing to give evidence to this Committee, which evidence possibly might supplement whatever evidence has been tendered herein, although I'm not as yet properly instructed in the matter. However, I am of the view as well that somewhere somehow their piece of evidence might assist this Committee in arriving at a proper decision at a later stage.
In view of that and their personal circumstances and the fact that they were actually refused access to apply, I would submit that this Committee at least shouldn't dwell on the technicalities as such. Well of course I've had a consultation with the TRC officials, who have no objection to that, but it is up to the Committee, the Honourable Committee, to decide in respect of their fate.
CHAIRPERSON: Yes, well we have taken note of the fact that there were a number of ...(inaudible) criminal trial, we have gone through all our records in order to identify those of them who have possibly applied for amnesty. We have located all of those accused who had in fact applied for amnesty, accused 1, 3 and number 10 and if I'm not mistaken, number 8. Other ones who haven't applied for amnesty according to our records, there was no record of an amnesty application at all. The unfortunate result of that of course is that there is a legal bar that applies under those circumstances. The provisions of the Act that we operate under are peremptory, it contained a cut-off date for applications and the upshot of all that is of course is that somebody has not applied within the time periods that were provided, there were a number of extensions to the cut-off date and so on for various reasons to accommodate people with difficulties and we've had quite a number of applications.
So the nett result of all that of course is that it binds our hands, it ties our hands, we're not in a position to deal with matters which have not been raised within the cut-off date so insofar as the panel is concerned here, we wouldn't be able to be of assistance to your clients where they haven't applied for amnesty. We might just add that some of the existing applicants have not strictly complied with all of the technicalities and it is precisely because we were trying to be as accommodating as possible that the Amnesty Committee has not adopted a technical attitude towards these things and for that reason we have been entertaining all of those applications which have been brought to the notice of the Committee within the cut-off date. We've actually made it possible for those cases to be heard but the ones, unfortunately there are just no applications at all that were submitted we wouldn't be able to deal with. Your remedy will more than likely lie on a different level, it will more than likely have to be some or other administrative process that you might have to follow and it might very well be that you know, once this matter is finalised and a decision is given in respect of those applicants who have appeared here, that you might very well be in a position to follow the administrative channels that exist in respect of the prerogatives of the President to come to assistance of people where the normal court process has been exhausted so it might be that that is where your remedy lies eventually, the administrative authorities would be able to exercise you know, the prerogatives that the President holds in order to assist a person in that position where a great injustice would result from the particular circumstances that you have sketched here which might very well be the kind of circumstance that would enable the President to exercise his prerogative. But apart from that there is nothing that we would be able to do as a panel sitting at this point, unfortunately all hands are tied and you'll have to investigate the other possibilities which might be relatively easier once this process has been finished and a decision has been given in respect of this matter. You might be able to get some restorance from the investigative authorities but that unfortunately is the position, the legal position that we are bound to at this point.
Now I assume that takes care of the applicants that are before us?
MR HONNORAT: That is correct, Mr Chairperson yes. I suppose the ...(indistinct) aspects.
CHAIRPERSON: Yes, Ms Vilakazi we have already dealt with the position of your clients. They have their rights reserved if they so decide to come into the process. However, you have noted that we have set a time period in respect of any statements that they wish to submit to the Committee. We have ruled that they should be, if they want to submit any statements or any submissions or any material to us, they should do that within seven days of the date of that ruling so that would be something that you will have to look into. The question whether they want to participate in the proceedings of course they will have to decide that and give us an indication as to whether they actually want to participate but if they have any submissions they want to make, any statements they want to submit to us, they will have to do it within that time period.
MS VILAKAZI: ...(indistinct)
CHAIRPERSON: I can't hear sorry? Let me put this on.
MS VILAKAZI: Do I have to respond to that? I take it that you were just clarifying the position?
CHAIRPERSON: Yes, I was just raising it just to make sure that we are ad idem on this, that we understand the position in respect of your clients' situation. Very well, Masagela, have you got any other witnesses?
MR MASAGELA: Mr Chair thanks, if that is the feeling of this Committee that we are proceeding, the only witness that I have is Ms Gumede.
CHAIRPERSON: Is that to come and deny that what has happened at this meeting or is there any other issue because if that is the issue then perhaps I must indicate to you that that is not really a matter that is directly material to the applications of these applicants. I mean we are not - there's no compelling reason that I can see at this point that we ought to be resolving that issue at all?
MR MASAGELA: If that is the case, Mr Chair, then also on my side we don't have any problem. I just wanted to get clarity from the Honourable Committee that if, whether it's necessary that Ms Gumede should come and testify to clarify actually what happened on the day in question but if that is the opinion of this Honourable Committee that it's not necessary for her to come and produce any evidence then there's no any other witness.
CHAIRPERSON: Yes unless we misunderstand the situation, they're not suggesting that they acted on orders from your client, they just as part of giving the evidence they were just trying to say what everybody said at this meeting and that's not really the basis of the application, that your client authorised them or that she had the power to authorise them to go and execute the deed. So it's not really a material question insofar as the amnesty is concerned.
MR MASAGELA: If that is the case, Mr Chair, then there is not anything from our side.
CHAIRPERSON: Yes, thank you Mr Masagela.
And Ms Thabethe, have you got any evidence that you are tendering?
MS THABETHE: Not at all Mr Chair.
CHAIRPERSON: Thank you. Well that concludes the evidence in the matter. We have indicated that once we've reached this stage that there is no reason - yes I don't know whether I've excused you, Mr Tshabalala, but if I haven't then you are excused now. We have indicated to the representatives of the Department of Correctional Services that once we've reached this stage there's no compelling reason why the applicant should be physically present. Their legal representatives have already indicated that they also don't need them to further attend so they could be excused so as to cause not too much disruption at the prison.
We also indicated that the interpreters would be excused if they are too exhausted to say anything further at this point so as a panel and the legal representatives of the parties here, we wouldn't need the assistance of the interpreters so you also not under obligation to continue if you can't, physically can't, do that. You would then be excused if you'd like that to be the case.
INTERPRETER: Thank you.
CHAIRPERSON: Mr Honnorat, have you got any submissions on the merits of these applications?
MR HONNORAT: Mr Chairperson, I've got submissions I think I will need to consider all evidence that has been given here. I'm also quite worried about my personal transport which I have to organise, my car I mean is not available at the moment so I'll need to use public transport and it's got to cut off time, I mean whether ...(indistinct) and whether if it's necessary to go, I mean, a little bit further in depth whatever has been presented, today especially, you know to make proper submissions on behalf of all clients and considering, I mean, the amnesty, I mean, and how it fits in terms of the Act. So it is actually my request that the submissions might be permitted to be addressed to this Honourable Committee tomorrow morning after going through the evidence, considering it.
CHAIRPERSON: Yes well you know, we have gone to great lengths here to get to this point and to get the evidence concluded. We had indicated that we want to hear the argument earlier on, if you had indicated that you've got problems in addressing us we wouldn't have exhausted everybody up to this hour just to have to reconvene tomorrow for an hour or whatever it's going to take to conclude this matter but I mean if you're not in a position to address then I suppose there's nothing we can do about that.
MR HONNORAT: Well I said I didn't expect, I mean, the sort of lengthy cross-examination and the matter to proceed beyond 6 o'clock, ....(indistinct) just as well.
CHAIRPERSON: Yes, what is your attitude, I mean have you got any attitude that you want to raise in respect of a request that the argument should be taken tomorrow? It looks like Mr Honnorat is telling us that he's not in a position to address us, I mean we can't force him. We have a few powers but I don't think we've got the power to force counsel to speak to us.
MS VILAKAZI: Honourable Chair, I think I'm in somewhat the same position as Mr Honnorat having not anticipated that the proceedings which stretch up to this point and I also have transport constraints but looking at the volume of the evidence that was given today, I would really need time to check on, to make a meaningful contribution.
CHAIRPERSON: Yes, Ms Thabethe, I think you're the only one who is ready to proceed?
MS THABETHE: Yes Mr Chair but I have ...(intervention)
CHAIRPERSON: But unfortunately we can't start with you, we have to start with Mr Honnorat.
MS THABETHE: I was going to say I have no objection if we continue tomorrow but I just wanted to put it on record of course that, I mean in this incident it might appear long but many issues really are not in dispute.
CHAIRPERSON: Yes, I think there's merit in that submission. Yes, no I agree with you.
MS THABETHE: So I mean if we do convene tomorrow I hope, you know, my learned colleagues are aware that they don't have to go to town, you know?
CHAIRPERSON: Yes.
MS THABETHE: With each and every evidence that was accused because at the end of the day ...(intervention)
CHAIRPERSON: Yes we certainly have all the evidence on the records, we don't want to it to be repeated, we've heard it all.
MS THABETHE: Yes, yes.
CHAIRPERSON: We would only want submissions on the relevant factors that come into play in enabling us to decide whether or not these applications comply with the requirements of the Act which are clearly spelt out in the Act.
MR HONNORAT: Yes Mr Chairperson, I would just like to - one of the benefits of doing it tomorrow is that it will flow in a coherent and logical fashion so I mean the time will be saved.
CHAIRPERSON: Yes, well that might be of big assistance if it is more digestible and coherent. Mr Masagela, I assume you're also ready to proceed? You are probably overruled by the majority of your colleagues here?
MR MASAGELA: I beg your pardon Chairperson?
CHAIRPERSON: Are you ready to proceed with the argument?
MR MASAGELA: I'm also in the same position, Mr Chair.
CHAIRPERSON: That there's nobody we can rely on here? Alright. Well, yes I think that takes care of it. Our last bit of hope has now disappeared so we'll have to then reconvene tomorrow, unfortunately, for another session. Yes, I just want to - I'm sorry, just ask the people to just go please, I can't hear? Just go out, thank you.
Yes well, you know, we were working on the assumption that we would be able to conclude the proceedings today. We will have to conclude the argument relatively early tomorrow in order to accommodate - everybody's been talking about transport, accommodate transport needs of some of the members on the panel, all of the members of the panel because none of us are resident in Johannesburg so under those circumstances we would like to reconvene tomorrow morning at 8.30 to take your arguments and hopefully it won't take us very long, you know, unless we are able to conclude relatively early, you know, we are going to have some very difficult arrangements to make in order to ensure that the members of the panel get home safely and without undue inconvenience which is going to result from the delay here. So we would like to reconvene at 8.30 to take your arguments and obviously by the nature of things we will have to reserve the decision in this matter so we'll really just reconvene to take your arguments tomorrow morning. So we will now adjourn and we will reconvene at 8.30 tomorrow morning.
COMMITTEE ADJOURNS
