Amnesty Hearings

CHAIRPERSON: Morning everybody. Today we're going to be starting with the amnesty application of Mr Victor Mthandeni Mthembu, but before we start I'd like to just briefly introduce the Panel to you. On my right is Mr Nsiki Sandi. Mr Sandi is an advocate of the High Court, he's a member of the Amnesty Committee and he comes from East London. On my left is Mr Wynand Malan. Mr Malan is an erstwhile attorney, he's a commissioner of the Truth and Reconciliation Commission and also a member of the amnesty committee and he comes from Johannesburg and I'm Selwyn Miller, I'm a judge of the High Court also from the Eastern Cape and I'm attached to the Transkei division of that court.

These proceedings will be simultaneously translated and if you wish to benefit from the translation you must be in possession of one of these devices, just select the channel for the language that you need and if you don't have one these sound sets will be obtainable from the sound technician.

I'd like at this stage to kindly request the legal representatives to kindly place their names on record.

MS PRETORIUS: I'm Advocate Cynthia Pretorius, I'm briefed by the Amnesty Committee to appear on behalf of the applicant, Mr Victor Mthembu.

CHAIRPERSON: Thank you Ms Pretorius.

MR KOOPEDI: My name is Brian Koopedi, I represent the victims in this matter, I'm instructed by the Amnesty Committee.

CHAIRPERSON: Thank you Mr Koopedi.

MR DRAHT: My name is Heiko Draht, I appear on behalf of Induna Mkhize.

CHAIRPERSON: Thank you.

MR VAN DER HEYDE: I am Chris van der Heyde from J H van der Merwe Attorneys and I appear on behalf of one of the implicated people, Prince Vanana Zulu.

CHAIRPERSON: Thank you Mr van der Heyde.

ADV STEENKAMP: Honourable Chairperson, my name is Steenkamp, I'll be the Evidence Leader.

CHAIRPERSON: Thank you Mr Steenkamp. Ms Pretorius are you in a position to commence?

MS PRETORIUS: I am in a position.

CHAIRPERSON: And I take it that Mr Mthembu will be giving evidence?

MS PRETORIUS: He will be giving evidence and I will ask him to be sworn in.

CHAIRPERSON: Thank you.

VICTOR MTHANDENI MTHEMBU: (sworn states)

EXAMINATION BY MS PRETORIUS: Mr Mthembu, you did receive the bundle from the Amnesty Committee, compiled by the Amnesty Committee, which will be used in your application today, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: Will you please turn to page 7 of the bundle, this form 1, application for amnesty was signed and sworn to by you, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: And you still stand by the information in this form?

MR MTHEMBU: That is correct.

MS PRETORIUS: And then on page 9, 10, 11 and 12, that's a form completed by you on the 19th July 1996, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: And you still affirm the information contained in this form?

MR MTHEMBU: That is correct.

MS PRETORIUS: Pages 13, 14, 15, that is also a form completed by you?

MR MTHEMBU: That is correct.

MS PRETORIUS: And it is also signed and sworn to you by you?

MR MTHEMBU: That is correct.

MS PRETORIUS: And that is still the position today, this information is still correct?

MR MTHEMBU: Yes I do.

MS PRETORIUS: And then on pages 16, 17 and 18, that is also sworn to by you although it relates to the Boipatong incident and not to the Sebekong drive by shootings, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: Then on page 19 there's an affidavit up to page 32, that affidavit was deposed to by you and on the 14th November 1996 and that is still your statement today?

MR MTHEMBU: That is correct.

MS PRETORIUS: Mr Mthembu, can you tell the Committee what was your position, where did you live during 1993?

CHAIRPERSON: Sorry Ms Pretorius, I think before you commence, we were handed this document before we started, perhaps we should just get it on record at this stage is there's no objection.

MS PRETORIUS: That is the document "Violence in the Vaal Triangle."

CHAIRPERSON: It's a document titled "Violence in the Vaal Triangle" consisting of several pages with lists and number of incidents that took place from July 22nd 1990 up to and including the 8th August 1994?

MS PRETORIUS: That is correct.

CHAIRPERSON: And if there's no objection perhaps this can be received at this stage and we'll call it Exhibit A? Is that in order?

MS PRETORIUS: That is in order. I don't know whether Mr Koopedi had sight of this but I know that the other representatives have no problem with this document.

CHAIRPERSON: Yes, Mr Koopedi have you seen the document?

MR KOOPEDI: I'm just looking at it but I believe there's no objection, I'll be looking at it throughout.

CHAIRPERSON: Yes, if of course there's any dispute as to the correctness that can be raised, the fact that it's handed in as an exhibit doesn't constitute absolute proof of it being hundred percent correct.

MS PRETORIUS: I would just like to mention that this exhibit emanated from the Amnesty Committee, is that a document that they compiled because it was not compiled by the applicant?

CHAIRPERSON: Yes, thank you, so this document will be received as Exhibit A. Sorry Ms Pretorius, you can carry on.

MS PRETORIUS: As the Chair pleases.

MR MALAN: Sorry Ms Pretorius just before you proceed further, can you tell us exactly which incidents the applicant is applying for? I you look at his first application he refers only to the 12th July, that's on page 3. Incidents on the 12th July. The other date is not referred to except in some way in the affidavit starting at page 19 so if you could give us a list of the exact incidents?

CHAIRPERSON: Yes but you can proceed with your evidence Ms Pretorius and then at some stage when submissions are made maybe they can be specifically identified which I'm sure they will be during the testimony of Mr Mthembu, this will assist us.

MS PRETORIUS: They will be, Chair, I have got them listed here.

CHAIRPERSON: Thank you.

MS PRETORIUS: Mr Mthembu, you lived in the Kwamadala Hostel during 1993?

MR MTHEMBU: That is correct.

MS PRETORIUS: What was your position - let me put it this way, the residents of the Kwamadala Hostel were mostly Zulus and members of the IFP political party, is that correct?

MR MTHEMBU: That is so but there was also a mix of people who came from Sebokeng who had fled from that area to the hostel so I will say at that time it was mixed, it was not only Amazulu who resided there.

MS PRETORIUS: Were they members of the IFP, residing there?

MR MTHEMBU: That is correct.

MS PRETORIUS: Why did they flee from Sebokeng?

MR MTHEMBU: They fled because they no longer had homes, their homes had been burnt down.

MS PRETORIUS: Can you tell this Committee by whom?

MR MTHEMBU: I cannot specify individuals as it was people who belonged to the ANC comrades.

MS PRETORIUS: So there was trouble in the Vaal Triangle during that time between the ANC and the IFP, I think that's common cause, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: What was your position in the IFP in the Kwamadala Hostel?

MR MTHEMBU: I was the deputy chairperson of the youth in the Vaal Triangle.

MS PRETORIUS: Who was the chairman of the youth brigade at that stage?

MR MTHEMBU: It was Makwabaleni Buthelezi.

MS PRETORIUS: Who was the leader of the IFP in Kwamadala Hostel during 1993?

MR MTHEMBU: It was Mr Mkhize and Prince Vanana Zulu.

MS PRETORIUS: You are asking amnesty today for an incident that happened on the 12th July 1993, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: You were prosecuted in the High Court in Pretoria on several charges of murder, attempted murder and robbery, also for the possession of certain firearms, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: You were found guilty on four charges of murder?

MR MTHEMBU: That is correct.

MS PRETORIUS: Thirteen charges of attempted murder and two charges of robbery with aggravating circumstances, is that correct?

MR MTHEMBU: That is correct.

MS PRETORIUS: At this hearing did Captain Havenga testify? He was the investigating officer in this matter. Did Captain Havenga testify in mitigation of sentence at this hearing?

MR MTHEMBU: That is correct.

MS PRETORIUS: And he also testified as to the political situation in Kwamadala and in Sebokeng at the time?

MR MTHEMBU: That is correct.

MS PRETORIUS: And today you are asking amnesty for these misdeeds, these crimes that were committed on the 12th July 1993?

MR MTHEMBU: That is correct.

MS PRETORIUS: Can you tell the Committee, on the 12th July what happened?

MR MTHEMBU: On the 12th July we went to Sebokeng to the township there.

MS PRETORIUS: Who said you must go to the township on the 12?

MR MTHEMBU: Prince Zulu had told us that we should go to kill people in the township of Sebokeng.

MS PRETORIUS: Can we just - did he give you a reason why you should go on the 12th July?

MR MTHEMBU: What he told us was that we were supposed to go kill people because he had heard from work that the people in Sebokeng were happy and they were celebrating Gatesi's death therefore we had to go and revenge that attack.

MS PRETORIUS: Who was Gatesi whose death the people were celebrating in Sebokeng?

MR MTHEMBU: Victor Gatesi Keshwa who resided in Zone 7.

MS PRETORIUS: In Sebokeng?

MR MTHEMBU: Yes in Sebokeng. His house was burnt down and he later fled to the hostel, Kwamadala Hostel.

MS PRETORIUS: That was prior to the 12th July?

MR MTHEMBU: I do not know when it happened.

MS PRETORIUS: No, but it happened before he was killed, that's what I'm trying to establish?

MR MTHEMBU: That is correct.

MS PRETORIUS: So Vanana Zulu called you, you say he called you. Who were the people he called on the 12th July?

MR MTHEMBU: As a person who was responsible for the youth I was the first one to be called in.

MS PRETORIUS: Yes and then? Who else?

MR MTHEMBU: As well as Themba Mabotha who's long deceased as well as Clement Klankladinde and Sipho Lukosi.

CHAIRPERSON: Yes, if we could just get those names Ms Pretorius? You said it was yourself, who else?

MS PRETORIUS: On page 29 in paragraph 27. Victor Keshwa.

CHAIRPERSON: Thank you.

MS PRETORIUS: It's Themba Mabotha, Sipho Lukosi and who was the third person?

MR MTHEMBU: Clement Cindi.

MS PRETORIUS: Clement Cindi?

MR MTHEMBU: Yes and Sipho Lukosi.

MS PRETORIUS: Was that on the 12th July?

MR MTHEMBU: Yes.

MS PRETORIUS: So how many people went out on the 12th July?

MR MTHEMBU: There were four of us.

MS PRETORIUS: It was yourself, Themba Mabotha, Sipho Lukosi and who was the fourth person?

MR MTHEMBU: Clement Cindi.

MS PRETORIUS: Clement Cindi, okay.

CHAIRPERSON: Cindi?

MS PRETORIUS: Cindi, I think it's C-I-N-D-I, chair.

Did you have any weapons with you when you went out?

MR MTHEMBU: Yes.

MS PRETORIUS: Where did you get the weapons?

MR MTHEMBU: We received the firearms from the Prince.

MS PRETORIUS: Pardon?

MR MTHEMBU: We received the firearms from Vanana Zulu.

CHAIRPERSON: What sort of firearms where they, Mr Mthembu?

MR MTHEMBU: It was 9 mm shotguns and Lugers.

MS PRETORIUS: What kind of weapon did you personally get?

MR MTHEMBU: A 9 mm Luger pistol.

MS PRETORIUS: How did you go to Sebokeng that evening from Kwamadala Hostel?

MR MTHEMBU: We stopped a taxi and it ferried us to the township.

MS PRETORIUS: What was Vanana Zulu - did he give you any instructions before you went?

MR MTHEMBU: The instruction that he gave us was to kill people at the township and be on the look out for police because they were patrolling in the township.

ADV SANDI: I'm sorry, that's not very clear to me, where were you going to find these people in the township?

MR MTHEMBU: We would have found them in the township. At that time IFP members had fled the township because of having their houses burnt down. Therefore we knew that if you remained in Sebokeng you must belong to the ANC.

MS PRETORIUS: So it was randomly - it was decided that you would go and kill people randomly in Sebokeng because they would be ANC members, is that correct?

MR MTHEMBU: That is correct.

CHAIRPERSON: Or at least supporters?

MS PRETORIUS: Or supporters, yes.

That evening you went out and you robbed a car, is that correct?

MR MTHEMBU: That is correct, we did that after we arrived in Zone 3 in Sebokeng.

MS PRETORIUS: And the reason for that?

MR MTHEMBU: We had already alighted from the taxi and we thought we should acquire a vehicle that was known in the township and use that vehicle so that we would complete our mission successfully.

MS PRETORIUS: So you would drive up and down in the township with this vehicle and shoot at people randomly, is that correct?

MR MTHEMBU: That is correct.

MR MALAN: May I just ask, why didn't you simply use the taxi?

MR MTHEMBU: We could not use the taxi because there were other passengers going to different destinations and we could not have used it because it's not the same as a private vehicle.

MS PRETORIUS: After you had - how many people did you shoot at, at that night, do you know?

CHAIRPERSON: Sorry, just before you proceed Ms Pretorius?

Can you give us a description of the vehicle? What sort of vehicle was it that you robbed?

MR MTHEMBU: It was a white Cressida, Toyota Cressida.

CHAIRPERSON: And this vehicle, it wasn't just stolen, it was forcefully removed from the owner, is that correct? It wasn't parked in the street, you just hot wired it and drove off?

MR MTHEMBU: The car was parked at a yard and at that time we were walking on foot after having alighted from the taxi. We then went into the premises and knocked on the door and it was opened. We then requested the people to give us the keys for the vehicle.

CHAIRPERSON: I take it it was something more than a request, didn't you demand the keys? I mean you didn't give them the right of refusal, didn't you?

MR MTHEMBU: That is correct because we were armed, we did not really request we just instructed them to give us the keys.

MS PRETORIUS: You do not know how many people were killed or injured that night by you?

MR MALAN: Just before you proceed, tell us more about the actual robbery of the car. Did you only take the keys and took the car and left?

MR MTHEMBU: When we went in and demanded the keys they gave them to us. We also asked them if they had a firearm and they said they didn't. From there we went to the bed and pulled up the mattress and we discovered a firearm there which we confiscated.

MR MALAN: Anything else?

MR MTHEMBU: That is what I witnessed. I do not know whether others removed anything else because when we were in court there was evidence to the effect that there was money and property stolen from the house.

MR MALAN: Would you turn to page 45, let us just deal with this and get it over with. You were charged and convicted of robbing R1900, the Toyota, the pistol that you referred to, an identity document, a watch, two pairs of men's shoes, a green jacket, two pairs of men's trousers and also ammunition. Now you're telling us you didn't know that these items were taken by either yourself or your colleagues?

MR MTHEMBU: As I have just explained what took place on my part that is what I witnessed. I'm not saying that they did not take those items but I was only accountable for what I did.

CHAIRPERSON: Are you saying, Mr Mthembu, that you took the pistol?

MR MTHEMBU: That is correct.

CHAIRPERSON: And what about the ammunition? It wasn't the bullets that were in the pistol, it was one box containing approximately 50 bullets?

MR MTHEMBU: Yes there was a box of ammunition and the firearm also had a magazine with bullets.

CHAIRPERSON: And did you see any of your colleagues who were with you carrying clothing or did you notice them coming out dressed differently as to what they were when they went in?

MR MTHEMBU: The house was a four roomed place and we were not all in one room.

CHAIRPERSON: Yes, no I mean when you got to the car did you see any clothing, them carrying clothing or anything like that?

MR MTHEMBU: I did not because that was not that was on my mind.

CHAIRPERSON: Thank you. Ms Pretorius.

MS PRETORIUS: Mr Mthembu, you say you do not know how many people were killed or injured during this attack on Sebokeng?

MR MTHEMBU: I am not aware how many people died but in court it was mentioned that I had killed four persons.

CHAIRPERSON: If you could just give us a bit of detail as to how those people were killed. Did you go into houses or were they standing at bus stops, how did it happen that you shot at people?

MR MTHEMBU: We shot at people that were found at bus stops or taxi ranks and because it was in winter there were fires that were lit in the streets and people would sit around them. Those are other groups of people that were shot at and I'm not aware whether they got injured or died as a result of those attacks.

CHAIRPERSON: Did you actually shoot from the motor vehicle or did you get out of the vehicle and approach these people and shoot them or would you just drive by and lean out the window and fire at people randomly?

MR MTHEMBU: They would be at these bases that I've already mentioned so we alighted from the vehicle, leaving the driver behind and we would proceed to them and shoot them at a closer range. Therefore we did alight from the vehicle.

MS PRETORIUS: Who was the driver of the vehicle?

MR MTHEMBU: The driver was Themba Mabotha who is deceased.

MS PRETORIUS: Did he also shoot at the people?

MR MTHEMBU: Yes he did because he would pull his window down.

MS PRETORIUS: The second vehicle that was robbed that night was a Honda Ballade. Can you tell the Committee more about that robbery? When did that take place in connection with the shootings, before or after the shootings or during the shooting?

MR MTHEMBU: The Honda Ballade was robbed so that we could use it to leave the township. We thought that perhaps we could have been spotted or the vehicle that we were driving in could have been spotted and the people could perhaps call the police who would come looking for a Toyota Cressida. We then decided that it was better to secure another vehicle.

CHAIRPERSON: Just briefly describe how you acquired the Honda Ballade?

MR MTHEMBU: On our arrival at Zonvoet Inn we left the Toyota Cressida and proceeded on foot. We then saw this Honda Ballade driving into a house. We then followed it and entered the premises and as we came closer we realised that it was a woman driving the vehicle. As she was just about to get out of the vehicle we told her to give us the keys and she just handed them over and requested that we do not injure her and we just got into the vehicle and left.

CHAIRPERSON: And you left her behind, you didn't take her with you?

MR MTHEMBU: Yes she requested to get out and went into the house and that is where we left her.

MS PRETORIUS: Did you then leave the township after you had got into the Honda Ballade?

MR MTHEMBU: Yes, we had been in the township for quite a while and we were worried that the police may be on our tails or we left in the Honda Ballade.

MS PRETORIUS: What happened to ...(intervention)

CHAIRPERSON: I'm sorry. Mr Mthembu, I just want to find out, we don't know the area too well. Kwamadala, where about is it, in which area is Kwamadala Hostel?

MR MTHEMBU: It's on the Boipatong side what's Vanderbijlpark.

CHAIRPERSON: And approximately, that's not too far from Sebokeng is it? How far is that from Sebokeng?

MR MTHEMBU: It's not too far. Plus minus one kilometre.

CHAIRPERSON: I hear there's been some reaction but if you had to drive in a vehicle from Kwamadala to the place Zone 3 let's say, how far are you going?

MR MTHEMBU: I am just estimating the distance but it's a 20 to 30 minute drive.

CHAIRPERSON: I just wanted some idea.

MR MALAN: Before you proceed, why did you not kill the woman when you robbed the Honda Ballade? Was that not in Sebokeng?

MR MTHEMBU: We did not kill her for the reason that she had handed her keys over to us, I did not see a reason why she should be killed.

MR MALAN: I think you'll have to explain that to me, what was the reason why the other people around the fires or at the taxi rank had to be killed, what's the difference, was she not also in Sebokeng? Was she not also ANC?

MR MTHEMBU: She was in Sebokeng but you should also look at the fact that we did not kill the people from whom we robbed the first vehicle. The people that were targeted were comrades and we knew where they could be found.

CHAIRPERSON: Ms Pretorius?

MS PRETORIUS: After you had left, did you leave Sebokeng with the Honda Ballade?

MR MTHEMBU: That is correct.

MS PRETORIUS: What did you do with the car after leaving?

MR MTHEMBU: We drove it to up until the road that goes towards Vanderbijlpark. We left it there and proceeded on foot, towards the hostel.

MS PRETORIUS: Did you leave it as it was or did you burn it?

MR MTHEMBU: We left it as it was. The vehicle that we burnt was the Toyota Cressida.

MS PRETORIUS: Where did you burn that?

MR MTHEMBU: In Zone 13.

MS PRETORIUS: In Sebokeng?

MR MTHEMBU: That is correct.

MS PRETORIUS: Was that before or after you had dropped the Honda Ballade?

MR MTHEMBU: It was before we acquired the Honda.

MS PRETORIUS: Why did you burn the Cressida?

MR MTHEMBU: We wanted to remove our fingerprints from the vehicle.

MS PRETORIUS: When you got back ...(intervention)

MR MALAN: How did you set it alight?

MR MTHEMBU: Because we had been driving around the engine was still warm therefore we shot at the petrol tank and it caught fire.

MR MALAN: You say you abandoned the Cressida in the township in Zone 13, you get on foot and you stand there in the township shooting it? Is that how it happened, shooting the petrol tank?

MR MTHEMBU: What I can explain is after we had completed the shooting we proceeded to a certain street and that was where we shot at the petrol tank. Thereafter we proceeded on foot looking for a vehicle that we could use to leave the township.

MR MALAN: I'm not sure that I got your answer from the interpreters. Were you standing next to the vehicle when you shot at the petrol tank, is that what you're saying or did you shoot from a distance?

MR MTHEMBU: When we shot at the tank we were some distance away but one person was closer to the vehicle.

MR MALAN: How many shots did you put into the tank approximately?

MR MTHEMBU: Just one.

MR MALAN: And it immediately exploded?

MR MTHEMBU: Yes, after the petrol poured out of that hole the car exploded.

MR MALAN: Thank you. You didn't use a match or anything to set the petrol alight?

MR MTHEMBU: No, none of us were smokers so we did not have a match.

CHAIRPERSON: Ms Pretorius?

MS PRETORIUS: Where did you go with the Honda Ballade?

MR MTHEMBU: We went on the Golden highway and we then travelled towards the Iscor gate that was used by Iscor employees.

MS PRETORIUS: That is at Kwamadala Hostel?

MR MTHEMBU: That is before the hostel. I was just explaining the roads from Sebokeng, that is we took the Golden highway, past Zone 16.

MS PRETORIUS: And when you left the Honda Ballade on the road where did you go?

MR MTHEMBU: We then proceeded to the Kwamadala Hostel.

MS PRETORIUS: On foot?

MR MTHEMBU: Yes on foot.

MS PRETORIUS: What did you do when you got to the hostel?

MR MTHEMBU: We then reported to Prince Zulu that we had done the job. He then requested the firearms that were used and we handed them over to him. Thereafter he said we should go and cleanse ourselves with Indelesi.

MS PRETORIUS: Did you do that?

MR MTHEMBU: Yes we did.

CHAIRPERSON: Sorry and what about the firearm that you got from the people that you got the Cressida from, did you hand that over or did you keep that?

MR MTHEMBU: We did not hand it over, we did not even show it to him.

MS PRETORIUS: What did you do with that pistol?

MR MTHEMBU: We gave it to somebody from Nomgoma to take home.

MS PRETORIUS: Nomgoma in Natal?

MR MTHEMBU: That is correct.

MS PRETORIUS: So you did not keep it?

MR MTHEMBU: No.

MS PRETORIUS: And the bullets, the 50 bullets, what did you do with that?

MR MTHEMBU: We also handed the ammunition to him because it would not have been easy for him to go buy ammunition for that firearm.

MS PRETORIUS: Who gave it to him?

MR MTHEMBU: Please repeat that question?

MS PRETORIUS: Who gave the pistol and the ammunition to the person from Nomgoma?

MR MTHEMBU: It was Themba Mabotha.

MS PRETORIUS: Where was Mtwana Zulu when you came back, where did you meet him, in the courtyard of the Kwamadala Hostel, in his room, in your room? Where did you find him?

MR MTHEMBU: Because it was already at night we found him in his room.

MS PRETORIUS: Was he asleep already or was he waiting for you?

MR MTHEMBU: He was not asleep.

MS PRETORIUS: This was not the first time that you have gone out getting weapons for Mtwana Zulu and getting instructions from him, was it?

MR MTHEMBU: That is correct.

MS PRETORIUS: You had done this before?

MR MTHEMBU: Previously we would go to Sebokeng because I would be in the company of people who grew up there who had friends and relatives living in that area. We had a problem that if we had done this during the day their houses would have been burnt down because they would have been seen in our company.

MS PRETORIUS: Mr Mthembu, the question is did Mtwana Zulu give you orders to go and shoot people in Sebokeng prior to the 12th July 1993?

MR MTHEMBU: No.

MS PRETORIUS: Mr Mthembu, if you think today of these drive by shootings, how do you feel about them and all the people that were killed and injured?

MR MTHEMBU: It hurts me to know that people were killed in Sebokeng as well as for the fact that IFP supporters were also killed there. If perhaps we had taken time to think and discuss these matters thoroughly we could have found an alternative way of dealing with the violence that engulfed the Vaal Triangle. I think at that time our minds were not functioning properly because you were lucky to be alive but I am deeply remorseful for what happened in the Vaal Triangle particularly for the families who lost their loved ones through my deeds. I regret that and I empathise with them because if we had used our heads our leaders could have held discussions that would have produced a better solution than what we did.

MS PRETORIUS: Do you know what the situation is in Sebokeng presently? Do you still have family living there?

MR MTHEMBU: As a person who had girlfriends there I sometimes call and enquire about the situation. I think things have returned to normal because some of the people who had fled the area have since returned and family members have also again embraced one another.

MS PRETORIUS: So there is no more violence in the Vaal Triangle according to you, to your knowledge?

MR MTHEMBU: Because I do read the newspapers and watch television I would be in a position to tell if there was violence. I think the situation has returned to normal.

MS PRETORIUS: At the time, the people in the Kwamadala Hostel, could they go to Sebokeng, go about their daily chores, go to school, go to hospital, go and shop in Sebokeng?

MR MTHEMBU: At that time you could no longer visit the hospital or anywhere else because there was already war. If a person was ill we normally took them to Benoni, not Sebokeng.

MS PRETORIUS: And what was the reason for that?

MR MTHEMBU: For instance if a person who had previously been residing in Sebokeng goes back to that hospital that person would be recognised by township residents and they could be in danger. We were also afraid.

MS PRETORIUS: So it was a war like situation between the residents of the Kwamadala Hostel and the residents of the rest of the Vaal Triangle in the townships?

MR MTHEMBU: Yes I would put it that way. There was a war.

MS PRETORIUS: I have no further questions, Mr Chairperson.

NO FURTHER QUESTIONS BY MS PRETORIUS

CHAIRPERSON: I see now it's just past 11 o'clock and Mr Koopedi had indicated that he would like a short adjournment so that he could consult with his client so this would be a convenient time to take the tea adjournment and if you need more time or whatever, Mr Koopedi, if you would just let us now but we'll take the tea adjournment until half past eleven.

MR KOOPEDI: I'll do that, thanks Chairperson.

CHAIRPERSON: Thank you, we'll take the tea adjournment now.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Are you in a position to proceed now?

MR KOOPEDI: Yes we are in a position to proceed, thank you Chair.

CHAIRPERSON: Do you have any questions that you would like to - sorry, I see we must just wait for the translators. Okay, can we start? Mr Koopedi, do you have questions you'd like to ask the applicants?

CROSS-EXAMINATION BY MR KOOPEDI: Yes Chairperson, there are some questions yes. So I may proceed?

Mr Mthembu, perhaps I might have missed this in your evidence, before you went to Kwamadala Hostel where did you reside?

MR MTHEMBU: (s.u.o.) At Kwamasisa.

CHAIRPERSON: Sorry, whereabout is that Mr Mthembu?

MR MTHEMBU: It's near Zone 14. If you are at Zone 14 one could see the flats, the high rise flats.

CHAIRPERSON: That's Zone 14, Sebokeng?

MR MTHEMBU: Yes.

CHAIRPERSON: Thank you.

MR KOOPEDI: Kwamasisa, is that a township, is that a hostel? What is it?

MR MTHEMBU: It's a block of flats up to the fourth floor but one can call it a hostel because people who resided there were from Iscor.

MR KOOPEDI: Is it a place where you would find legally only males staying there?

MR MTHEMBU: It was not males only, there was another block where females were residing and there was a hostel near the hospital therefore I cannot call it a hostel because people there used to stay with their partners.

MR KOOPEDI: Okay I understand that. Now what made you leave, why did you go to Kwamadala from Kwamasisi, what was the reason?

MR MTHEMBU: I am a Zulu, the reason was that I was speaking Zulu and being a Zulu and there was conflict in that area. In fact within the premises there was conflict between the ANC and the Zulu speaking people. It started after the rally which occurred on the 29th June. After that rally that's when we realised that we were no longer friends we were now enemies. ANC people wanted to know from us why we attempted that rally without discussing with them and we told them that we didn't see any need to tell them because they also had meetings which they never told us about and then there was a conflict and the management of Iscor decided that we should move because we were the minority and the majority was ANC, that's why we moved.

MR KOOPEDI: Okay, so were you employed at Iscor?

MR MTHEMBU: Yes it is so.

MR KOOPEDI: When did you start working at Iscor?

MR MTHEMBU: On the 13th July 1988, that's when I started.

MR KOOPEDI: Okay. Now when you went to Kwamadala did you undergo any political training or did you have any political lessons? Was there anything like that, that is IFP politics?

MR MTHEMBU: At that time I was not politically active or anything and I was not trained but then when I arrived there that's when I got knowledge about politics but I was not trained.

MR MALAN: Mr Koopedi, just before you proceed, to get the chronology? When did you move to Kwamadala, just give us the date?

MR MTHEMBU: Even though I cannot remember a specific date but it was 1990 in November.

MR MALAN: 1990?

MR MTHEMBU: 1990 November.

MR MALAN: So when you said earlier that the conflict started with the rally on the 29th June was that 1990 or when?

CHAIRPERSON: The conflict at Kwamasis or whatever the place is called?

MR MTHEMBU: It started on the 22nd July 1990.

MR MALAN: You earlier said it started on the 29th June, can you recall having said that?

MR MTHEMBU: I think that's a mistake maybe, the interpreter didn't hear me correctly.

MR MALAN: Thank you.

MR KOOPEDI: Thank you Chairperson. Did you undergo any military training, that is were you taught in the use of firearms or in warfare?

MR MTHEMBU: No I didn't.

MR KOOPEDI: Okay, on page 20 of the bundle of documents, that is the second page of the statement made by you, paragraph 6 thereof, you referred to hit squads from Umsinga. Can you kindly explain what these hit squads were, who were these people?

MR MTHEMBU: People who were from Umsinga. I knew that since I was a child that they were trained.

MR KOOPEDI: I'm a little lost, I need to understand. Perhaps I'm asking the question in terms of understanding what these hit squads had to do with the situation at the hostel. Why were they at the hostel?

MR MTHEMBU: Maybe it is not written correctly. These were the people who were protecting the hostel dwellers.

MR KOOPEDI: And according to your evidence these are people who you grew up knowing to be experts in firearms, is that correct?

MR MTHEMBU: Yes that is correct.

MR KOOPEDI: And according to your evidence these people existed even before the conflict we're talking about?

MR MTHEMBU: When I arrived at Kwamadala Hostel I found them there. I didn't leave Kwamasini area immediately after we were told, I wanted to find out whether where I was going to stay, the situation was correct for me to do so and I discovered that the people who came and stayed here were no longer just the old people we were staying with.

MR KOOPEDI: What I was trying to understand and correct me if I'm wrong, is the fact that from your early days when you grew up, you knew that there would be a group of people perhaps from Umsinga who would be trained killers but then at some stage when you were grown up you then went to Kwamadala Hostel and at Kwamadala Hostel you found these trained people, is my assumption correct?

MR MTHEMBU: Yes it is correct. Myself being a Zulu I knew violence a long time ago and I knew areas which were engulfed by violence, that's why I said I knew these people.

MR KOOPEDI: Do you know if these people were being paid anything for services they were rendering at Kwamadala?

MR MTHEMBU: No, I wouldn't know that since I was a youth. There were two committees, I belonged to the youth committee and there was also another committee which was mostly adults and I wouldn't know what they used to discuss.

MR KOOPEDI: Okay, in your evidence you referred to the fact that the people were left behind, that is the people who were still staying at Sebokeng were regarded as ANC. I'd like to have an explanation as to why would there be such a generalisation because some of the victims whom I represent were not ANC members and had nothing to do with the ANC. Can I get an explanation as to why were people regarded as ANC even if they were not?

MR MTHEMBU: We believed that at the time and I cannot dispute that, maybe some of them here never belonged to the ANC but at that time we as IFP believed that everyone who was left behind were ANC, that's how we took it at that time

MR KOOPEDI: What I really find strange in the whole matter and in this explanation is the fact that there were Zulu speaking people who were in the township and these Zulu people were also not members of the ANC or even the IFP. I need to understand why would they then be classified as ANC?

MR MTHEMBU: I wouldn't be able to further clarify that, I think my explanation that I just gave you is the only explanation I can give.

MR KOOPEDI: Okay, maybe let's go to this incident when you went into this house and ...(intervention)

ADV SANDI: Sorry Mr Koopedi, can I just come in here if you're asking him a question on something different to this? Can you explain this, did you believe that every person who is Zulu speaking would be an IFP supporter?

MR MTHEMBU: No, I knew that there were people who were Zulu speaking and I will put an example. One will find someone who is a Dlamini and a Zulu person, even though that person can speak Zulu you will find that that person was born there in that area. I'm not saying that everyone who was speaking Zulu belonged to a certain organisation.

ADV SANDI: And what about a person who was not Zulu speaking, would you have expected such a person to be IFP, ANC or what?

MR MTHEMBU: There were people who were born in that area and they were speaking Sotho. We know that everyone was speaking whatever language.

ADV SANDI: Thank you. Mr Koopedi?

MR KOOPEDI: Now the incident that happened when you hijacked the Cressida, do you know who were the occupants of this house?

CHAIRPERSON: That is before you went in or ...(intervention)

MR KOOPEDI: The occupants of the house where ...(intervention)

CHAIRPERSON: Yes, prior to them going there or because I think he might have learned the name of the occupants during the court case.

MR KOOPEDI: Well now, does he know these people, their names? Do you?

MR MTHEMBU: No, I don't know them I only knew them in court for the first time and I heard that they are Ndlovu family.

MR KOOPEDI: That's right, that is my point and when you went into this house and demanded or requested the keys as you put it, what language did you use, in which language did you communicate?

MR MTHEMBU: I was speaking Zulu and the other people I was with they were speaking Sotho because they grew up in that township.

CHAIRPERSON: But the people who you were robbing, what language did they speak to you? The Ndlovu's. The Ndlovu family, what language did they communicate in?

MR MTHEMBU: I think they were mixing the two languages, Zulu and Sotho.

MR KOOPEDI: Well you say you think? I will put it to you that my instructions are that they were communicating with you throughout in Zulu. Mr Ndlovu cannot converse in Sotho. Would you deny that?

MR MTHEMBU: And that as well it's possible, I cannot dispute that.

MR KOOPEDI: Now what I really need to understand is why would you attack and rob a person who speaks your language, who speaks the language spoken at Kwamadala and why would this person be regarded as a target, is there any reason?

MR MTHEMBU: No particular reason except that what we wanted was what we just saw. We didn't have any idea as to what was going on inside the Ndlovu house. The only reason we went there is because we saw the Cressida parked outside. When we got in the house we didn't know anything. Even if it was in another house belonging to the Totsetsi we would have done the same thing.

MR KOOPEDI: My instructions are that - perhaps let me ask this question first, did you see a garage inside the yard of, the yard you went into, was there a garage?

MR MTHEMBU: I think there was a garage and I think we saw a kombi but I'm not sure and yes, there is a garage.

MR KOOPEDI: My instructions are that there is a garage and inside this garage was this Cressida. The car was parked inside the garage and the garage doors were closed. Do you have any comment to that?

MR MTHEMBU: I wouldn't be able to say anything except that I just told this Committee what happened. Maybe there was a garage and maybe the Cressida was locked inside the garage but the reason that we went in that particular house was because we saw the car outside.

CHAIRPERSON: But I think it can't be both ways Mr Mthemba, what Mr Koopedi is putting to you is that the white Cressida, the one that you stole was in the garage which was locked. I take it Mr Koopedi it had ordinary doors that you can't see through?

MR MTHEMBU: Yes, my instructions are that the garage door was not locked but closed, they couldn't see through it.

CHAIRPERSON: It's a door, it's a solid door, it's not - so in other words his instructions are that the white Cressida would not have been visible if you were walking past the house because it was in the garage and the doors were closed. Now you say that you went to the house, into the house, because you saw the car. So your answer to what Mr Koopedi put to you, that maybe so, maybe that was so, couldn't be. I mean either the car was in the garage with the doors closed or it wasn't. What do you say it was?

MR MTHEMBU: I do understand. I think it may happen that even though the car was parked in the garage the door was not closed. It's new to me that it was locked inside the garage.

MR KOOPEDI: Thank you Chairperson. Now I'm further instructed that when the four of you who walked into this house, you seemed to be in command, people were taking orders from you, is that correct?

MR MTHEMBU: Yes that is correct.

MR KOOPEDI: Is it also correct that after being handed the keys to the vehicle one of you, one of the four, went outside to the vehicle and only three of you remained in the house, is that also correct?

MR MTHEMBU: Yes that is correct.

MR KOOPEDI: Now I'm further instructed that you then ordered everybody in the house, who was Mr Ndlovu, Mrs Ndlovu and their two children. You then ordered all four of them into the main bedroom, is that correct?

MR MTHEMBU: As I'm sitting here alone I wouldn't be able to say this happened and this didn't happen because I wouldn't see the other two members every time what they were doing.

CHAIRPERSON: I think, correct me if I'm wrong Mr Koopedi, but the impression that I get is that you confirmed that you were in charge of the group that went into the house, you were the leader, now what Mr Koopedi is putting to you is that the family, the Ndlovu family, Mr and Mrs Ndlovu and the two children were then ordered to go into the bedroom. Okay, he hasn't put it to you that it was you who made the order but did you yourself order them into the bedroom?

MR MTHEMBU: It may happen that someone said so because I was not the leader among the four of us. I was the leader of the youth not when we were going to attack. If we were going to attack we were all in one position, I wasn't in command of the group.

CHAIRPERSON: Mr Koopedi?

MR KOOPEDI: Thank you Chairperson, but what I was saying that and perhaps you'll put it on record, my instructions are that you, as the person who seemed in command, ordered the four Ndlovus into the main bedroom. Would you deny that?

MR MTHEMBU: No I think that's a mistake. I wasn't a leader and I wasn't in command there. What was important was we were going to attack and we didn't put anyone in command.

MR KOOPEDI: Well you just said you were in command but I will let that pass. It is my further instruction that when the four were ordered into the bedroom, all three of you that is in exception of the person who has gone out to the car went into the main bedroom with the four Ndlovus, do you remember that?

MR MTHEMBU: What I know is that when we arrived in that house we requested for the car keys. They gave us the key, we questioned them as to whether they had a gun and they said no they didn't. Then we started searching for the gun. We found Mr Ndlovu lying on the bed. We pulled up the mattress and we found the gun.

CHAIRPERSON: I think Mr Mthembu, if you can just listen to Mr Koopedi's questions. What he is asking you, he says - he puts it to you that at one stage all the Ndlovu family, Mr and Mrs Ndlovu and the two children plus the three of you who remained in the house were all together, that's seven people, in the main bedroom and he is asking you is that correct or not correct? Now were you at any stage all seven of you in the main bedroom? Do you accept that or do you deny that, that is the question asked by Mr Koopedi?

MR MTHEMBU: I think I do understand. When we were at the Ndlovus, all four of us were there. Maybe Mr Ndlovu knows that one of us went to the car. All I know is that one person was driving the car but all of us was inside the house.

CHAIRPERSON: Yes we understand that but - okay, so at one stage there were eight of you. Four of you who came in uninvitedly to the house and the four Ndlovus, that's eight. What Mr Ndlovu is saying is that one of you went to the car so that left seven people and he says that at one stage all seven of you were in the main bedroom, do you agree with that or not? Not just in the house but in the actual main bedroom at the same time?

MR MTHEMBU: Maybe it happened, maybe the one who left went to start the car.

CHAIRPERSON: Mr Koopedi?

MR KOOPEDI: You might have to bear with me, Mr Mthembu, because I will be trying to remind you the incidents as per my instructions. Now my instructions are that when the seven of you, three of you plus the Ndlovus were in the bedroom, one of you but certainly not you was holding a gun on Mr Ndlovu's head, do you remember anything like that?

MR MTHEMBU: I wouldn't say I do remember but what is important is that we were all armed with firearms.

MR MALAN: Mr Ndlovu please listen to the question - sorry, Mr Mthembu please, listen to the question and answer the question and only the question please. Will you please repeat the question, Mr Koopedi?

MR KOOPEDI: My question is a statement which I am putting to you. I put it to you that when the seven of you were in the bedroom, one of you but certainly not you, was holding a gun over Mr Ndlovu's head, what do you say to that?

MR MTHEMBU: I wouldn't be able to say anything, it may happen that there was someone doing that but I wouldn't know.

MR KOOPEDI: It is also my instructions that when this person, this one person had the gun on Mr Ndlovu's head, you Mr Mthembu had opened the wardrobes and was ransacking and looking at things, picking out clothing items. What is your comment?

MR MTHEMBU: I didn't do that, I was holding a gun and I couldn't open wardrobes and why would I open wardrobes anyway?

CHAIRPERSON: Sorry, are you saying that you couldn't open a wardrobe because you had a handgun in your hand? Were you holding it with both hands?

MR MTHEMBU: No I held it in one hand.

MR MALAN: Sorry, just before you proceed, I'm not sure yet, can you remember that you were in the bedroom?

MR MTHEMBU: I do remember taking a gun which I found under the mattess.

CHAIRPERSON: Yes, Mr Koopedi?

MR KOOPEDI: Thank you Chairperson. Maybe let's talk about this gun, my instructions are that whilst you were busy ransacking the wardrobe you accomplice, the one who had a gun over Mr Ndlovu's head is the one actually who lifted the mattress and saw the gun, would that be correct?

MR MTHEMBU: I don't have a comment there, I think it's impossible because if I'm holding a gun at your head you will do whatever I want you to do. I don't think they were under pressure these people who gave you instructions because seemingly they know who was doing what.

ADV SANDI: Sorry, that's not clear to me, what do you mean? You don't think they were under pressure? Do you mean that they were not afraid of you?

MR MTHEMBU: Yes that is correct, I think they were not under pressure and they were not scared because now they can relate this all to you, they could see who was doing what.

ADV SANDI: That you say that they were quite happy with what you were doing to them? Ransacking the house, demanding that they give you keys for cars etc?

MR MTHEMBU: I'm not saying they were happy. Would you please understand what I'm trying to say?

ADV SANDI: Thank you Mr Koopedi.

MR KOOPEDI: Thank you. What seems to be strange and perhaps what is Mr Ndlovu and his family's main reasons for opposing your application is the fact that you insisted on this firearm when you asked him about a firearm. According to him it was as it you went into his house because you knew there would be a firearm. You were not attracted by a vehicle because his vehicle was inside the garage. What's your comment to that?

MR MTHEMBU: I wouldn't agree with that. It is not easy to know if someone has a gun and I can't agree on that.

MR KOOPEDI: And that is the point you would not if this was just an unfortunate incident, that is you were just there and not have planned, you would then not insist on a gun. Why did you insist on a gun? Why did you not take his word when he said to you "I don't own one"?

MR MTHEMBU: As I've already mentioned it was the four of us and we were not all doing one thing. If one finds a box of ammunition it is obvious that a gun is present.

MR KOOPEDI: I don't understand, what do you mean when one finds a box of bullets, where did you find these bullets?

MR MTHEMBU: What I'm trying to say is that there cannot be smoke without a fire.

CHAIRPERSON: The question, Mr Mthembu, was where did you find the box of bullets, that is what the question was. Whereabout in the house did you find the box of bullets?

MR MTHEMBU: I wouldn't know but we found it in the bedroom where we found and I don't know who found that box of ammunition.

CHAIRPERSON: Now you said that you asked for a gun, not so and then Mr Ndlovu denied that he had a gun, is that correct?

MR MTHEMBU: Yes.

CHAIRPERSON: Yes and then you also said that you yourself found the gun, is that correct?

MR MTHEMBU: Yes.

CHAIRPERSON: Now what Mr Koopedi asked you was seeing that you were not going there for a gun you were only going there for a motor vehicle. Why did you not believe Mr Ndlovu when he told you he didn't have a gun, why did you then go and look for a gun, you'd after all had the car keys, that was what you went there for, why carry on looking for guns and scratching around in the room and that sort of thing?

MR MTHEMBU: It happened because we didn't know that there was a gun but then when we got there and we were pointing guns at these people we thought about it there and then that if we were pointing guns at these people, what if as we were leaving there will grab their gun and try and attack us but then to make sure or to avoid that, that's why we requested for a gun.

CHAIRPERSON: Yes thank you. Mr Koopedi?

MR KOOPEDI: Thank you Chairperson. You ...(intervention)

MR MALAN: Sorry, just before you proceed. On this point, you were ordered to go into Sebokeng and shoot people, why did you fear that they may follow you and have a gun, why didn't you simply shoot them when you got the keys? That was your mission, was to shoot people?

MR MTHEMBU: I wouldn't be able to tell you why we didn't kill those people. We thought about just getting the transport from them and we didn't think about killing them. I think they were lucky.

MR KOOPEDI: Now in the response that you gave which was to the effect that there's no smoke without fire, do you actually mean that it is after having found the box of bullets that you then insisted on the firearm, is that what you mean?

MR MTHEMBU: Yes that is correct.

MR KOOPEDI: Now I have a problem with that in that I seem to have three versions of that issue. I'll start with my instructions. My instructions are that after your colleague had seen and pointed at the gun which was between the mattress and the base set, you then asked where are the bullets. Can you comment on that?

MR MTHEMBU: No, I can't.

MR KOOPEDI: My further instruction is that since you were the one at the wardrobe and busy picking certain items from the clothes, the response given to you was the bullets are exactly where you found those other clothes and that's when you found the bullets. Do you recall that?

MR MTHEMBU: I wouldn't be able to say anything about what you've been told by the Ndlovu family. The reason they are saying I'm the one that found the ammunition is because they're seeing me here today and what worries me is that if they can see my co-accused, they will say the same thing about him.

CHAIRPERSON: You see, what Mr Koopedi is doing is he's putting to you, as you understand, what his clients have told him. Now he says that they say that you yourself personally, you, not one of your accomplices, found the bullets in the wardrobe. Now you can have three answers to that. You can basically agree with it and say yes, that is so, or you can disagree with that and say no, that is not so, I dispute that or you can genuinely say well, I can't remember. Those are the three possibilities. Now Mr Ndlovu or the Ndlovus say that you were the one that found the bullets. Do you agree with that or do you disagree with that?

MR MTHEMBU: I don't remember.

MR KOOPEDI: Now my instructions are further that not only did you take this box from the wardrobe but you took out certain items which would include two pairs of shoes, you basically chose which two pairs to take, you also took money, you asked where the money was, you were told it's in the wardrobe, it was in a purse, you took an amount of R1900. What do you say to that?

MR MTHEMBU: I wouldn't be able to comment on that and the way they told you it's like everything that happened there was done by Mr Mthembu.

MR MALAN: Mr Mthembu, it was just explained to you, you can say yes it's true, no it's not true, I did not take the money or you can say I can't remember but you cannot say you can't comment. Did you do it? Did you not do it or don't you remember?

CHAIRPERSON: And to taking the shoes, two pairs of shoes and a sum of money?

MR MTHEMBU: I don't remember.

MR MALAN: Well just to make it pretty clear, are you saying in other words it's possible but you can't remember it?

MR MTHEMBU: If I'm saying I don't remember I'm trying to say I don't remember because I cannot recall anything because what happened in that house, it was not done by me personally everything, it happened because we were four and also the years had gone by now.

MR KOOPEDI: Well Mr Mthembu, I have earlier on put it to you that according to my instructions you were the person who seemed to be in command, the person who was given orders and you have conceded to that and I am putting it further to you that it was per your instruction that everything was done in the house and I am not putting to you that everything was done by you. Now to go on, I am instructed that one of your colleagues then removed a silver watch on Mr Ndlovu's head, as per your instruction. Do you remember that?

MR MTHEMBU: No, I don't remember but I have a problem with your statement. Now these people instructed you to tell me or to put it to me that I was a commander. How would I have known that because we never put any commander whenever we were going out to these missions?

MR KOOPEDI: I am not obliged to answer your questions. However, I will for clarity sake do that. It is said that you seemed to be in command because you were the person ordering people around, you were the one who came in and demanded the car keys, you were the one who ordered people into the bedroom, you are the one who asked Mr Ndlovu questions as to where is your gun, where are the bullets, where is the money. You are the one who ordered one of your colleagues to take off a wrist watch from Mr Ndlovu. Do you understand why it is said that you were in command?

CHAIRPERSON: Appeared to be in command I think.

MR KOOPEDI: Thank you Chairperson.

CHAIRPERSON: He's not saying you were the commander, he just says that you appeared to be in command. You played the leading or the dominant role of the intruders that night.

MR KOOPEDI: Now did any of you, yourself or any of your colleagues slap, kick or hit any of the Ndlovus?

MR MTHEMBU: Since they perceived me as a commander this is what they perceived, I cannot comment on that. This is how they thought and this is how they saw things.

CHAIRPERSON: Now the next question, Mr Mthembu, was any of the Ndlovus assaulted, physically assaulted? That's the question that Mr Koopedi asked.

MR MTHEMBU: I wouldn't be able to remember that and I cannot say it happened or it didn't happen, I just don't remember.

ADV SANDI: Yes but if such a thing had happened, wouldn't you have seen it? You were there with your colleagues, surely if one of them had slapped one of the members of the Ndlovu family on the face or kick or whatever form of assault? You would have seen that, not so?

MR MTHEMBU: In that house one could see only what was happening in front of you but if it was not near you then one couldn't see.

ADV SANDI: Thank you Mr Koopedi.

MR KOOPEDI: Now if I understood your testimony, you evidence in chief, correct and I would like your guidance and perhaps your comment to this. As far as you were concerned you were involved in robbing the Ndlovus of a Toyota Cressida, a 9 mm Luger pistol and a box of bullets and nothing else, is that correct?

MR MTHEMBU: We robbed them a Cressida and a box of ammunitions and a firearm, that's what I saw. I didn't see anyone of us doing anything, for instance taking watches and shoes. I only heard about this in court.

MR KOOPEDI: And to date you're still denying your involvement in these other items other than the three?

MR MTHEMBU: I am doing my best in relating an incident that occurred a long time ago and as we were doing these things we were not checking each other as to who was doing what. If one of us took the money then that money was taken like they're saying.

MR KOOPEDI: Maybe let me rephrase my question. Do you deny having taken or robbed R1900 cash from the Ndlovus?

CHAIRPERSON: That's you personally?

MR KOOPEDI: Yes.

MR MTHEMBU: Yes I didn't.

MR KOOPEDI: Do you also deny being involved in the taking of the identity book of Mr Ndlovu, his watch, two pairs of shoes, one green jacket, two mens long trousers, do you deny your involvement in any of these?

MR MTHEMBU: That alone is very clear because if you look at me and look at Mr Ndlovu we are not one size and what was I going to do with those things?

MR KOOPEDI: I will take it that your answer is that you deny. I must say that if I look at you and look at Mr Ndlovu I still think his pants and shoes would fit you but I think that is beside the point. What I'm trying to establish here is therefore that you are not asking for amnesty for anything that has got to do with these other items other than the three, am I correct?

MR MTHEMBU: I am here requesting amnesty for what happened and I've already mentioned what I've done. I cannot relate what my colleagues did. I can only request amnesty on what I've done personally. I was used to going to shops and buy clothes.

MR KOOPEDI: Yes I will take it that what you are saying is confirmation of the fact that you're only asking for amnesty for the things you've mentioned, you are not asking for anything else. Now let's go to - when you had shot at people, perhaps let me start there, how many people do you know that you shot at?

CHAIRPERSON: If you don't know the exact amount if you could give an approximation of the number?

MR MTHEMBU: I only know of four.

MR KOOPEDI: How did you know about these four people was it at court or did you know the same time?

MR MTHEMBU: Yes in court.

MR KOOPEDI: Okay.

MR MALAN: Mr Koopedi, not to leave any misunderstanding was your question not how many people did he shoot at?

MR KOOPEDI: Yes. Not necessarily those he killed.

MR MALAN: He killed, yes. Mr Mthembu, the question was do you have an approximate idea of how many people you shot at that night? How many people together were in all the groups whether at taxi ranks, bus stops, around fires, how many people did you shoot at? Do you have an idea? Was it a hundred, two hundred or a thousand or four?

CHAIRPERSON: The question is not how many people you either injured or killed but how many - you've explained you shot at people who were sitting around fires and taxi ranks etc., how many people - are you talking Mr Koopedi him personally or the group?

MR KOOPEDI: Him personally.

CHAIRPERSON: You yourself did you shoot at and about how many rounds would you have used that evening in that shooting spree of yours?

MR MTHEMBU: I do believe that maybe you also are owning guns and you know that it's difficult for one to count if you're busy shooting at people you wouldn't count that okay this one is dead and this one is injured and therefore I don't have any idea, it was at night.

CHAIRPERSON: Yes but I think what Mr Koopedi is getting at, let's say there was a group of people around a fire, would you have just walked up and fired in their direction? So you might have fired at four people, you might not have hit anyone. Do you have any idea how many rounds you shot that night? Did you have to reload your magazine? We want some idea as to how many shots you fired, how many people you fired at?

MR MTHEMBU: I wouldn't be able to say how many rounds because when you shoot and your colleagues are also shooting and those people will run away the moment they hear the gunfire they will run away therefore you won't know how many people you shot at.

MR MALAN: Mr Mthembu how many bullets did you take along, how many bullets did according to you did Prince Zulu give you?

MR MTHEMBU: They were in a plastic bag therefore I don't know how many but I will estimate, I think it was about 50 to 60.

MR MALAN: Did you have any of your own bullets or were those the only bullets you got?

MR MTHEMBU: These in plastic bags were just spare bullets because our guns also had bullets in.

CHAIRPERSON: So was that one plastic bag for the four of you or did you each have a plastic bag with 50 or 60 bullets?

MR MTHEMBU: Just one plastic bag we were going to share.

MR KOOPEDI: Did you at any stage during the shootings have to reload your gun?

MR MTHEMBU: No we only used the plastic bag to put the magazines but we didn't reload.

MR KOOPEDI: How many bullets would the gun you had - how many bullets did it have inside the magazine?

MR MTHEMBU: Sixteen and I also had another spare magazine which was full.

MR KOOPEDI: Now did you use the bullets which were in your gun, all of them?

MR MTHEMBU: No not all of them.

MR KOOPEDI: Do you know how many were not used?

MR MTHEMBU: Even though I am not certain but usually whenever I had taken a gun I went on a shooting spree I would leave at least four bullets in my gun in order for myself, to protect myself while I'm escaping the area.

MR KOOPEDI: Okay so according to you and having listened to what your response is, you might have shot about eleven times, it's an estimation of course, is that correct?

MR MTHEMBU: Yes I can agree with you.

MR KOOPEDI: Maybe let's pass that area ...(intervention)

MR MALAN: Well just before you proceed again, I understood you, Mr Mthembu, earlier to say that this was the only occasion, before this occasion you were never ordered by Zulu to go killing people, that this was the only occasion, is that correct?

MR MTHEMBU: I don't think you understood me very well.

MR MALAN: Well it was asked of you earlier whether you had before this incident been ordered by Zulu to go and kill people. It might have put to you in Sebokeng but I remember your reply then as being no? Did he order you on more than one occasion to go and kill people randomly?

MR MTHEMBU: I will put it this way, he ordered us to go and attack on the 12th July but before that we used to go to the township and we'll tell ourselves that we were just going to the township to visit our friends and also my friends grew up in the area and whenever we'll go with them they will be mad because they will think that they used to stay in this area and now they can't stay there and that alone will aggravate their feelings and then we'll start shooting.

MR MALAN: So you went out on a number of occasions on shooting sprees before the 12th but not on orders of Zulu, is that how I am to understand your answer?

MR MTHEMBU: Yes.

MR MALAN: Thank you.

CHAIRPERSON: When you get to a convenient stage in your questioning, I see it's now quarter past one, we will take the lunch break but when you're at a stage that's convenient, Mr Koopedi?

MR KOOPEDI: We could take it now because I might be going to something else.

CHAIRPERSON: Yes thank you, we'll take the lunch break now, nearest 2 o'clock as possible, well before 2 o'clock as possible, it's quarter past one now, if we could start by about 2 at the latest, thanks. So we'll take the lunch adjournment now.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes thank you. Mr Koopedi, you're still busy questioning the applicant, you may proceed.

MR KOOPEDI: (continues) Thank you Chairperson.

Mr Mthembu, I am instructed that by one of the victims, her name is Gertrude Moyani, I believe she, the charge relating to her is charge 51?

CHAIRPERSON: Yes.

MR KOOPEDI: I'm instructed by Gertrude Moyani that she was shot twice on the night of the 12th and that the first bullet that caught her was fired by a pedestrian who was walking behind her. Now do you know if - or if I put it the other way round, did any of you get out of the Cressida at any stage during the shooting spree?

VICTOR MTHANDENI MTHEMBU: (s.u.o.) As I've already explained, we did not shoot from the car but alighted the vehicle.

CHAIRPERSON: Yes I think in the evidence, Mr Koopedi, Mr Mthembu said that three of them alighted and the driver was the only one that shot from the vehicle, they got out and did the shooting.

MR KOOPEDI: Thank you Chairperson, I think I might have missed that. Now I need to perhaps understand why was the Honda Ballade not burned or destroyed as the Cressida was destroyed?

MR MTHEMBU: We would not have been able to burn it down because the area in which we found ourselves was busy, it was along Vanderbijlpark Road.

MR KOOPEDI: Did you not anticipate that the evidence on that car would incriminate you just as would the evidence on the Cressida?

MR MTHEMBU: We tried to wipe whatever we had touched within the vehicle such as the steering wheel.

MR KOOPEDI: Now let's go into the hostel. You report to Prince Zulu. After reporting to him you, in your evidence, you gave him back the firearms?

MR MTHEMBU: That is so.

MR KOOPEDI: However, you did not give him the firearm which was robbed from one of your victims. Now I need to understand why did you not hand over this firearm. Did you see it as something that belongs to you personally?

MR MTHEMBU: That is correct.

MR KOOPEDI: And together with the ammunition, the 50 bullets, you also perceived that to be something that belonged to you personally and not to anyone who had sent you or your organisation?

MR MTHEMBU: What I can say is that because we had acquired it in that fashion it was better to remove it from our midst.

MR MALAN: You deed not report the stolen firearm to Prince Zulu?

MR MTHEMBU: No we did not.

MR KOOPEDI: Now did you or any of your colleagues use this firearm during the shooting spree?

MR MTHEMBU: I don't think it was used.

MR KOOPEDI: Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR KOOPEDI

CHAIRPERSON: Thank you Mr Koopedi. Mr Draht, do you have any questions you would like to put to the applicant?

MR DRAHT: Chairperson, I have no questions.

NO QUESTIONS BY MR DRAHT

CHAIRPERSON: Thank you. Do you have any questions you would like to put?

CROSS-EXAMINATION BY MR VAN DER HEYDE: Thank you Mr Chairperson.

Mr Mthembu, how well did you know the person that was killed, Mr Keshwa, Mr Victor Keshwa?

MR MTHEMBU: I knew him very well because I had a relationship with his sister.

MR VAN DER HEYDE: Okay, I'm going to refer you to page 28 of the bundle, paragraph 25.

"During 1993 we heard that Victor Keshwa was killed. Victor Keshwa was known as the Vaal Monster in Sebokeng and in the Vaal Triangle. The reason for this was that he was known to be a person who was hijacking cars, stealing cars and killing people to do that."

Then you went on to say that he, according to you, he's not a person that did those things. Now do you know how did it come that he was known as the Vaal Monster then? Why would people say such a thing of him?

MR MTHEMBU: All I can say that is the name I got from the police in Vanderbijlpark and I do not know where that name emanated from and all that information about him, hijacking and stealing cars came from the police.

CHAIRPERSON: Sorry, Mr Mthembu, how did Victor Keshwa make his wealth, how did he become a wealthy man?

MR MTHEMBU: What I knew was that he was a person who used to go to the Free State to obtain dagga which he would sell around here and that is how he made his fortune.

CHAIRPERSON: Mr van der Heyde?

MR VAN DER HEYDE: The police told you, am I correct, that Mr Keshwa died because of aids when he was detained by the police, is that correct?

MR MTHEMBU: There was a certain captain that we found at Shakespeare, he is the person who informed us that Victor Keshwa had died but he was not aware of how he died but later on we read in the newspapers that the police had said he had been killed because of aids.

MR VAN DER HEYDE: What did you believe, how did Mr Keshwa die?

MR MTHEMBU: I did not believe that because Mr Keshwa was a very close person to me. Prior to his death he had just been to see a doctor and he had not been informed that he was HIV positive or that he had aids.

CHAIRPERSON: But the question that you were asked was how do you think, what is your belief as to how Mr Keshwa died. What do you think or don't you have any idea of your own as to how he may of died or what might have caused his death?

MR MTHEMBU: I think he was killed by the people who had tortured him at the police station. Even the story that he was in a car that was supposedly transporting him but they were not taking him to the nearest hospital which was Vanderbijlpark. That is why I do not believe he was killed by aids.

MR VAN DER HEYDE: But what I want to know from you is did you at any stage believe that the ANC was involved in killing your friend Mr Keshwa?

MR MTHEMBU: I cannot say that the ANC was implicated because he had been in the custody of the police, I will say the people who are implicated are the police themselves.

MR VAN DER HEYDE: You see Mr Mthembu, what I don't understand is, Mr Keshwa was a very good friend that you said that you were married to his sister.

CHAIRPERSON: He had a relationship.

MR VAN DER HEYDE: He had a relationship, excuse me and Mr Keshwa was then killed, well he died. What would have prompted you so much to have listened to a person to go actually and kill ANC people because your friend has died, why did you go and do that? You actually speak of on page 6 about - I'm sorry, on page 4 of the bundle about a revenge killing to the ANC? This is your first application that you have given. Why would you want to go and revenge your friends death on the ANC?

MR MTHEMBU: This was not the first instance that ANC people were attacked, there was this ongoing war between the ANC and the IFP.

MR MALAN: Mr Mthembu ...(intervention)

CHAIRPERSON: I think - sorry, Mr Malan. Mr Mthembu, if one reads your statement, this affidavit here and as pointed out by Mr van der Heyde, one gives the impression that the shooting sprees that you've described that took place on the 12th July, one of the reasons for it, one of the reasons why you were given an order was linked to the death of Victor Keshwa. You must correct us if that's the wrong impression or not because otherwise what's even the point of mentioning Victor Keshwa at all? Now what Mr van der Heyde was saying is why did the death of Mr Keshwa in any way lead to the shooting spree which took place on the 12th July. What was the link between his death and the events of the 12th July, if any. If there weren't any at all then you must just say so?

MR MTHEMBU: There was no connection between Mr Keshwa's death and the shooting spree that happened, there was just this ongoing conflict between township residents and the IFP.

MR VAN DER HEYDE: No, Mr Mthembu, really. On page 12 at the bottom, paragraph 32 it states where you're saying that Prince Zulu said this to you guys

"Your friend is dead, what do your people say? The people in the location, that is the members of the ANC are very happy that your friend is dead."

Prince Zulu said you people must go out in the location and kill the ANC people. Do you want to come now and change your version and say that your friend's death has nothing to do with this?

MR MTHEMBU: That is what Mr Zulu had heard at work, that is prior to him giving us the instruction to go and attack the township. The information was that the township residents were rejoicing after the death of Victor Keshwa because he was an enemy, regarded as an enemy in the township.

CHAIRPERSON: So there was, in other words, there was some connection between the attack and the death of Mr Keshwa?

MR MTHEMBU: I meant to say that the residents of Kwamadala Hostel were effected badly by the death of Mr Keshwa and that is one of the reasons that prompted the attack.

MR VAN DER HEYDE: Can you remember the date on which Mr Keshwa died?

MR MTHEMBU: I may not recall a specific date but I think it was the 10th July 1993.

MR VAN DER HEYDE: So it was about a month before these attacks were launched?

CHAIRPERSON: Not a month, two days?

MR VAN DER HEYDE: Two days that your friend had died until you went out to go and shoot people in Sebokeng, a very short time?

MR MTHEMBU: That is correct.

MR VAN DER HEYDE: The Ndlovus house that you went to, is this a big house? The first car that you stole from, the Cressida? That house that you went to, is it a big house in relation to the other houses there in the surrounding area?

MR MTHEMBU: It's a four roomed house, I think there was a garage that was an extension of the house.

CHAIRPERSON: Was it much bigger than the houses next door and across the street or was it similar to the other houses in the immediate area. I think that's what Mr van der Heyde is wanting to know. Did it stand out as being bigger than the other houses in the immediate area or not?

MR MTHEMBU: I cannot explain that because it was at night.

MR VAN DER HEYDE: You see why I'm asking this, Mr Mthembu, is that well I might be totally wrong but it is not in every man's house that you could in the middle of the month get R1900 and things, these are quite well off people, aren't they, that you went into their house to?

MR MTHEMBU: I am not in a position to respond to that question.

MR VAN DER HEYDE: Okay. Why did you take the pistol, there was a pistol there, why did you take it for yourself?

MR MTHEMBU: We took it so that the owner would not be in a position to use it on us.

MR VAN DER HEYDE: Why did you not declare it to Prince Zulu as you would have given the other weapons back to him according to your version?

MR MTHEMBU: It did not occur to us to give him that firearm.

MR VAN DER HEYDE: And the Honda Ballade, you took it but a certain point near the Kwamadala Hostel but then you left it. What happened to the Honda Ballade then?

MR MTHEMBU: I can only assume that it was later discovered by the police.

MR VAN DER HEYDE: Wouldn't the people of Kwamadala Hostel started asking questions about where does this Honda come from if you drove in there with a Honda, would they have asked questions?

CHAIRPERSON: Oh, you mean if they did, yes, you're just asking him?

MR VAN DER HEYDE: Yes.

MR MTHEMBU: Please repeat that question?

MR VAN DER HEYDE: If you took the Honda Ballade and drove with it back into Kwamadala Hostel after you came back from whatever you did in Sebokeng, shooting people and taking things, if you came back into Kwamadala Hostel there through the entrance, wouldn't the people have started to ask questions where does this man get this car from?

MR MALAN: Mr van der Heyde, is that on the understanding that that was his evidence?

CHAIRPERSON: No, I think it's a supposition. Well put in in another way, why didn't you take it to the hostel, why didn't you drive it right back to Kwamadala and take it to the hostel?

MR MTHEMBU: We knew that the car did not belong to us moreover the police at the entrance at the hostel would have questioned us because when we left we had been on foot.

MR VAN DER HEYDE: You see, Mr Mthembu, I'm going to tell you why I've asked you these questions, I have instructions from Prince Zulu. He said that you were very closely related to Victor Keshwa and that you and certain other people formed a gang which went around shooting people in Sebokeng and stealing things, robbing cars, that you were common criminals, nothing to do with politics? Can you answer to that?

MR MTHEMBU: That is not true.

MR VAN DER HEYDE: And according to Prince Zulu this is the only time that you would have asked for amnesty is because you were caught doing these things, the other times as you have already said that usually you had four bullets remaining in your gun on previous occasions went you went to Sebokeng on certain missions. You already acknowledged that you were part of crimes earlier but you never asked for amnesty for that.

MS PRETORIUS: I'm sorry, I do not think he said he was part of crimes earlier?

CHAIRPERSON: Yes I think that the evidence, correct me if I'm wrong, is that this wasn't the first time that he'd been in Sebokeng when the shooting had taken place?

MS PRETORIUS: Absolutely.

CHAIRPERSON: And I think now the question is when you were giving evidence in chief, Mr Mthembu, you said this wasn't the first time that you were involved in shooting in Sebokeng. Mr van der Heyde is now asking you if that is the case why are you now not applying for amnesty in respect of those other matters when you went into Sebokeng and used your firearm?

MR MTHEMBU: I cannot address myself to suggestions that has been made by a person who is not present here whereas that is the very same person who issued us with orders. I think he is just saying those things to protect himself, because he is not here, I am.

MR VAN DER HEYDE: Mr Mthembu, I'm his legal representative so I'm here on his behalf, that's why.

CHAIRPERSON: We've heard that so you're basically disputing what Mr van der Heyde has put to you about Prince Zulu's views on this matter but the question that he asks you was why didn't you apply for amnesty in respect of the other shooting sprees in Sebokeng that took place before the 12th July 1993 that you mentioned in your evidence?

MR MTHEMBU: I do not know the incidents that he is referring to because those incidents that I am implicated in I have applied for amnesty.

MR VAN DER HEYDE: Mr Mthembu, I'm going to give you the last instructions from my client. Prince Zulu says he never gave you instructions to go into Sebokeng to go and kill people because somebody was dead and he never issued you with firearms or ammunitions. Do you want to say something about that?

MR MTHEMBU: That is not correct.

MR VAN DER HEYDE: Thank you Mr Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR VAN DER HEYDE

CHAIRPERSON: Thank you. Mr Steenkamp, have you any questions to ask?

ADV STEENKAMP: No questions thank you.

NO QUESTIONS BY ADV STEENKAMP

CHAIRPERSON: Ms Pretorius, do you have any re-examination or would you prefer to for the Committee Members to put their questions and then do it after that?

MS PRETORIUS: I would prefer that, Chairperson yes, if that suits you.

CHAIRPERSON: Let me ask Advocate Sandi if there are any questions he would like to ask?

ADV SANDI: Yes I do, thank you Chair.

How long did it take you, Mr Mthembu, when you went around Sebokeng on your shooting spree, about how long would it have taken you?

MR MTHEMBU: Although I cannot recall the exact time but I do not think it was over an hour, I think it was under an hour.

ADV SANDI: When Mr Zulu gave you this order to go and randomly attack people at Sebokeng, did you tell him that that was something you were already doing?

MR MTHEMBU: It is not something that I was already doing. Whatever used to happen the Prince and other leaders were aware of.

CHAIRPERSON: I think if we can just clear this up, there seems to be some sort of grey area here. Prior to the 12th July 1993 the date that you describe these incidents, had you ever been involved in any shooting incidents at all in Sebokeng before that day?

MR MTHEMBU: There were instances where people shot at us in Sebokeng and at those instances we went to the police station to report but I did not fire my gun on those instances.

CHAIRPERSON: Yes thank you. Advocate Sandi?

ADV SANDI: Who were those friends of yours you were talking about?

MR MTHEMBU: I'm referring to people like Victor Keshwa and Mr Mabotha. I would be with different people at different times but I was usually with Mr Keshwa.

ADV SANDI: You say you never fired back at these people in spite of the fact that they were shooting at you?

MR MTHEMBU: Yes, it did not happen because I was in a car whilst my colleagues had gone into a certain house and ...(indistinct), I just heard gunshots and saw people jumping over a fence and fleeing. I then thought maybe they were shooting at my friends and they did, they came out immediately and informed me that some Umkandosi's, people had been shooting at them.

ADV SANDI: I don't know Mr Chairperson, maybe you can help me? I thought the witness had said there were several occasions on which he was involved in Sebokeng where they were randomly shooting at people?

CHAIRPERSON: Yes that was the impression then we said earlier that's why I asked him pertinently now again whether he had, the applicant had been involved in shooting and now he says he didn't say so.

ADV SANDI: I've got no further questions Mr Chairperson.

CHAIRPERSON: Mr Malan, do you have any questions?

MR MALAN: Mr Mthembu, I just want to take you to page 69 of the bundle, it relates to the charge number 27, the Honda Ballade from Mrs Magdalene Maselo. I'm not sure, we haven't been told whether she's present and Mr Koopedi did not ask any questions about that but she says ...(intervention)

CHAIRPERSON: Sorry if you could just explain, page 69 is a copy of the transcript of the court judgement where the judge is describing the evidence that he heard at your trial?

MR MALAN: Now she gave evidence and he has a summary in here, the judge, where he says

"Mrs Maselo was on her way back to her home having visited her daughter's home when she turned into the street where she lived. A vehicle passed her, she heard gunshots, she looked in her rear view mirror and she saw that you were waving arms, she reduced speed, she moved into her home, your vehicle passed her, then she brought her vehicle to a standstill and the Cressida in which you travelled stopped in the driveway at the gate."

Now she said then 5 people got out and she talks about that. Is that correct or what is your comment?

MR MTHEMBU: I cannot comment on that because she was approached by five people who could have been different individuals.

CHAIRPERSON: No, but what she says Mr Mthembu is that the people who took her Honda which we know is you, okay she might have made a mistake about the five people but she said that she was followed by this white Cressida, she looked in the rear view mirror, she saw it even before she stopped, shots were fired at her, she then turned into her yard, the Cressida then came and stopped at the gate, people got out, took the keys, asked her for money and stuff like that and then eventually drove away in her Honda. Now you said to us that you were walking on foot after having burnt the Cressida, you'd burnt this vehicle but you say in the light of that what's your comment on this evidence?

MR MTHEMBU: That may be an incorrect statement because we left on foot from Zone 13 after having burnt the car and we proceeded on foot until we met her.

MR MALAN: You see Mr Mthembu, also on page 70 the opposite side of the bundle, there's a summary of the evidence of Mr Daniel Ramso who also refers to the Cressida seeing four people getting out of the Cressida?

CHAIRPERSON: He was a person who lived across the road I think.

MR MALAN: Now he also refers to the Cressida stopping there. Could it be possible that you first stole the Honda, then drove away and then burnt the Cressida or are they both lying here, are they giving false evidence, that you did not arrive in the Cressida?

MR MTHEMBU: What we did was after we had finished our mission we decided to burn the car. We did not use the Cressida when we hijacked the Honda Ballade. At that time we were worried that we might be found out by the police in that Cressida.

CHAIRPERSON: Sorry, Mr Malan if I could just while we're on this point? Mr Mthembu, you were still in Sebokeng when you burnt the Cressida, is that correct? Were you still in Sebokeng?

MR MTHEMBU: That is correct.

CHAIRPERSON: And as far as you were concerned that was enemy territory?

MR MTHEMBU: That is correct.

CHAIRPERSON: Now why did you give up your means of escape, your wheels, your transportation by burning it when you're still in enemy territory? I mean what happened if you didn't find another vehicle to hijack, then you'd be stranded, walking on foot in enemy territory? I'm trying to understand the reasoning why you'd burn your car before you're safe?

MR MTHEMBU: We did that out of fear of the police. Moreover we were armed so if we had approached or come across any danger we could have tried to protect ourselves.

CHAIRPERSON: Ms Pretorius, do you have any re-examination?

MS PRETORIUS: I have no re-examination.

NO RE-EXAMINATION BY MS PRETORIUS

CHAIRPERSON: Do any of the other legal representatives have any questions arising out of questions that were put by the members of the Panel?

MR KOOPEDI: I do not have any further questions Chairperson.

CHAIRPERSON: Thank you. Mr Mthembu, thank you, that concludes your testimony. Thank you very much.

WITNESS EXCUSED

CHAIRPERSON: Ms Pretorius?

MS PRETORIUS: Chair, that is the case for Mr Mthembu. I do not intend calling any witnesses.

CHAIRPERSON: Thank you Ms Pretorius. Mr Koopedi?

MR KOOPEDI: Chairperson, I also will not be calling any witness but will address their concerns by making submissions.

CHAIRPERSON: Thank you Mr Koopedi. Mr Draht, I take it you wont be calling any witnesses?

MR DRAHT: No Mr Chairperson.

CHAIRPERSON: Mr van der Heyde?

MR VAN DER HEYDE: No Mr Chairperson.

CHAIRPERSON: Mr Steenkamp?

MR STEENDAMP: Thank you, none Chairperson.

CHAIRPERSON: That then concludes the evidence in this application. What remains now is for the legal representatives to make submissions and I'll ask Ms Pretorius if she's in a position to proceed?

MS PRETORIUS: At this stage unfortunately I am not Chair. I did prepare Heads of Argument but in light of the evidence of the questions asked to the applicant by Mr Koopedi there are some things that I will have to follow up. Unfortunately I do not have the court record or the dockets at my disposal. I tried to get hold of the Attorney General, I know who prosecuted in the criminal case and it's my submission that it will be necessary to look at that and maybe supply the Commission with some affidavit which I will also get to my learned friend Mr Koopedi if I get hold of it.

CHAIRPERSON: So what are you suggesting then Ms Pretorius, to submit written heads at a later stage?

MS PRETORIUS: I would appreciate that if the Committee would allow me to do that?

CHAIRPERSON: Let me here what the attitude of the other people are. We want to be as democratic as possible here.

Mr Koopedi?

MR KOOPEDI: Chairperson, if the Honourable Committee would allow me I have no objection to the suggestion by my learned friend that she be afforded an opportunity to file written heads, I would however ask that those of us that can be allowed to give our submission and ...(intervention)

CHAIRPERSON: What we can do is to hear anybody who is prepared to, even Ms Pretorius at this state insofar as she wants to submit written heads and then allow for me to submit oral representations and then to allow for any written heads to be filed and of course if there are written heads everybody will have the opportunity to respond to them.

MR KOOPEDI: That's right.

CHAIRPERSON: Yes I'm happy with that but Ms Pretorius we would have to put some sort of time limit because we don't know when the process is going to end but one thing that concerns me about what you've said now is that you know you might have to wait indefinite period of time to get these documents you're looking for from the Attorney General's office. That sort of thing is out of your hands and we don't wait forever for Heads of Arguments.

MS PRETORIUS: I realise that Chair and I would ask for indulgence of say two weeks.

MR MALAN: Ms Pretorius, I'm not sure that I understood you correctly. I cannot see why further evidence by way of affidavit will be introduced. As far as I understand the process now the case for your client is closed?

MS PRETORIUS: It won't be evidence Chair, it will be - I can maybe get hold of the portion of where the Ndlovus testified in court and the affidavits that they've made to the police. That's the only thing that I think that may be necessary.

CHAIRPERSON: You mean just to submit if it exists transcripts of existing documents?

MS PRETORIUS: That is correct, it won't be new documents Chair.

MR MALAN: It won't be any evidence?

MS PRETORIUS: It won't be evidence.

MR MALAN: Because if you're going to introduce any new evidence we'll have to give all the parties and opportunity to sort of reopen the case?

MS PRETORIUS: I realise that, it won't be evidence, Chair.

MR MALAN: Thank you.

CHAIRPERSON: Ms Pretorius, so do you want to make any submissions now or would you prefer to make your whole submission written?

MS PRETORIUS: I would prefer to make the whole submission as one otherwise I won't remember what I said and what I hadn't said.

CHAIRPERSON: You mean you might contradict yourself?

MS PRETORIUS: I may even contradict myself, Chair.

CHAIRPERSON: Mr Koopedi, if you want to make submissions on the understanding that when Ms Pretorius submits her written heads copies will be distributed to the other legal representatives who can then supplement any argument they make now with further written argument in response to hers.

MR KOOPEDI: I understand that, that seems to be a perfect solution.

CHAIRPERSON: Thank you Mr Koopedi.

MR KOOPEDI IN ARGUMENT: Chairperson, Honourable Committee Members, I have a very brief submission to make on behalf of the victims whom I represent and perhaps I should also point out that Magdalene Maselo, the victim on charge 27 is not here and therefore I did not have any instructions from her hence I did not pursue any questioning on that but then I wish to put on record that I am instructed to voice out the opposition which these victims have on the amnesty application of Mr Mthembu.

My instructions are that there is clearly no political motive or even a political objective which the applicant and his friends would rely on. The fact that there was a political turmoil in the area, it is not good enough a reason for anyone to go out of the hostels and go about shooting people and robbing people. It is also clear in our minds here that a reason was given for the alleged order which reason is that Keshwa had died in police cells and according to the applicant and according to what he says in his application form they were sent out to go and revenge. I will underline the word, they were sent out to go and revenge Keshwa's death. It is common cause, Chairperson, Honourable Committee Members, that Keshwa was not killed by any members of the community. It appears that Keshwa died somewhere, perhaps in police custody, we do not know.

CHAIRPERSON: Well I think even on the applicant's own evidence he did say that the ANC weren't implicated in his death, that he died in police custody and if there was anybody responsible for his death it would be the police rather than the ANC but what he did say was that the people, the ANC supporters at Sebokeng were rejoicing at the death and that was what caused the anger and triggered off the situation.

MR KOOPEDI: Thank you Chairperson. I am trying to narrow this to the ...(indistinct) that people had to go and revenge. There was no reason to revenge, no one had done anything. Applicant has not shown you anything that corroborates the fact that anyone was rejoicing Keshwa's death for them to want to then kill these people. But the long and short of my first point is that according to the victims there was clearly no political motive. People just went out to shoot for their own reasons and to rob.

My second point is that there was personal gain. It is my submission, Chairperson, Honourable Committee Members that it is common cause for anyone to be granted amnesty this person must not have had personal gain. Our submission, that is myself and the victims, is that items were robbed from the Ndlovu family which items included a vehicle. For arguments sake we would want to say this vehicle was necessary for them to continue with their mission. It is however not clear why the other items were taken away. However it becomes clearer when we reach the stage where the applicant then reports at the hostel when he does not hand over this firearm together with the bullets. What is clear is that these items were personally gained by the applicant perhaps and his colleagues. Therefore my submission is that in as far as that incident is concerned there was clear personal gain.

CHAIRPERSON: Yes because I think you've heard as often as we have, Mr Koopedi, is that often guns were stolen for personal protection because of the war situation that was prevailing but here that wasn't the case that was sent home.

MR KOOPEDI: Precisely, there was no need for getting more firearms. My understanding of the applicant's evidence is that they had enough firearms in the hostel. As and when they would need to go out they'd be issued with firearms, these firearms would come back.

CHAIRPERSON: And this stolen one went to Ngoma?

MR KOOPEDI: This one was sent home as a personal property to go and do whatever we do not know and therefore my submission is that there was clearly personal gain here and perhaps one should also go to the fact that the victims in this matter believed that there hasn't been any full disclosure here. The only matters which the applicant has spoken about are the matters where he was convicted. It is very clear from my instructions that there are other things which the applicant was involved in. He has corroborated that in answering one of the questions posed to him he clearly stated that from time to time when they would go into the township and shoot at people he would leave four or five bullets to facilitate his way out. He was asked later around the same question, he then turned and said he never shot at anyone. There would be instances where they are attacked and shot by people and his friends would respond but however, we argue that there hasn't been any full disclosure here. The contradictions found in his evidence also points towards this.

At some stage the box of bullets was found by the applicant under a mattress. Later on in his evidence this box is found elsewhere and it is actually the reason why they insist on getting the firearm because there couldn't be bullets without firearms. It is my submission therefore that the applicant hasn't been completely truthful.

I will also point to the fact that the applicant has failed in his evidence in otherwise to show any corroboration whatsoever to the fact that he was ordered by Prince Zulu to carry on his deeds. I believe that in a matter of this nature it was incumbent upon the applicant to at least try and show that and of course we have heard that Prince Zulu denies ever having given such an order.

In as far as the other events are concerned, the applicant has clearly stated that on the robbery committed on the Ndlovus he is not asking for amnesty for the other things which might have been stolen, he is only asking for amnesty for the firearm, the car and the bullets. It is therefore my submission and perhaps my humble plea that if the Honourable Committee would consider granting amnesty he should not be granted amnesty for the things which he thinks he has not taken.

CHAIRPERSON: Just on that, just seeing that you raised it, I don't know what the evidence at the trial was but he was convicted of stealing all those things right? The shoes, the watch, the trousers, the jacket, all of them. Now let's just assume that he only stole three of those seven items whatever it is. The conviction is surely correct on the basis of common purpose etc. I mean if four of us go into a house and rob and you grab an armful of stuff and I grab an armful of stuff and we all grab an armful of stuff and we all get caught, we're all going to get convicted of everything that was stolen, not just the stuff in each of our own arms, isn't that so?

MR KOOPEDI: That is so.

CHAIRPERSON: So the mere fact that he says I'm only asking -the only stuff I took was that, I'm not saying that we're going to make any findings, just for purposes of argument, I only took the gun and the bullets and the car and that's what I'm asking amnesty for. Well we know he is not a lawyer and doesn't appreciate the common purpose doctrine and everything else. We wouldn't be bound by that, would we?

MR KOOPEDI: Well the point I was making Chairperson is that I asked a pertinent question to him and prepared him for this line of argument whether is he applying for amnesty for the other things or is he only applying for amnesty ...(intervention)

CHAIRPERSON: But then he's talking as a layman, he says I'm only applying for what I did but I think he would be entitled to have amnesty in respect of the others if that is the way to go. You know, when it gets down to a question of assessing the evidence as well, you know, we know that a jacket was taken. Now you can't put a jacket in your pocket. We know that two pairs of shoes were taken, we know that you can't put two pairs in your pocket or two long pants, nothing seen, it's that sort of - the probabilities as well that we must assess.

MR KOOPEDI: Well Chairperson, I would not push that point because perhaps my next argument would be that even if he is a layman he is legally assisted at this point but perhaps just to wrap up, the victims are opposing amnesty and for what it was worth it was mentioned by the victims to me that it's better to let him stay in prison than let him go out because the victims would not have any amnesty committee to go to when people who would have done what they would do to him. I'm mentioning this just to show what the victims say, the victims oppose amnesty. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Koopedi. Mr Draht, I take it you have no submissions to make, do you?

MR DRAHT: No submissions.

NO ARGUMENT BY MR DRAHT

CHAIRPERSON: No your client hasn't been seriously implicated in this matter.

MR DRAHT: That is correct.

CHAIRPERSON: Mr van der Heyde?

MR VAN DER HEYDE IN ARGUMENT: Mr Chairperson, Mr Koopedi has done almost all the hard work for me. All that I want to say is if I look at the political reason which the applicant must have political motivation. He mentioned three things. The first thing was that Mr Keshwa died, his friend died. The only other two reasons that he could have given was that the ANC was rejoicing because his friend was killed and the third one was revenge. I do not think that any one of these three constitutes enough reason and political motivation to go out and to go and kill those people and then come back and come and hang it around the hook of political motivation.

CHAIRPERSON: On that Mr van der Heyde, if you're in a situation and I hear what you say that you're living in a hostel, an IFP set up and all that and the Induna or the leader in the hostel says okay, here's some guns, you go out and kill. Let's not even think about it in relation to this incident but we've heard it so often.

MR VAN DER HEYDE: Yes.

CHAIRPERSON: That the fact that an order has been given to kill. Whether or not there's a strong political motive by the person giving the order for the killings, how relevant is that to the foot soldier who has been given the order and he comes and says although the applicant hasn't said it, you know, he comes and says "I was ordered, it wasn't for me to reason why, it was for me to do or die", you know in other words "I just had to go and do it because of an order."

MR VAN DER HEYDE: Yes Mr Chairperson, I agree with you there, of course when a foot soldier gets a message to go and do something which is normally that they didn't even ask what it was for, they just went and did it but it also comes to the full disclosure here, it was my instructions from my client that these people belonged to a gang and they were really never politically involved in anything, they just went on their own rampages and killed people and stole things. What is a bit disconcerting to me is that there were people killed outside, might have performed a robbery, might have - I could not get the reason behind why he would drive by and shoot at people that's sitting around fire or somewhere. In connections with those things it might be that there was a political - some political motive for it because I do not for one moment think that a person who is robbing would just drive around the streets and shoot the people as well, there must be some motivation for that but other than that I cannot take it further.

MR MALAN: May I just ask you Mr van der Heyde, you quoted the so-called ...(indistinct) since the death of Keshwa, the ANC rejoicing and the revenge motive, if I understood him correctly he was saying that was what your client told him and that he relies totally on the order of your client. Now you say you cannot find a reason why they would have done it, are you saying to us that - are you suggesting that we may on behalf of your client come to a decision that they indeed did receive that order?

MR VAN DER HEYDE: No Mr Chairperson, Mr Keshwa was his personal friend.

MR MALAN: Yes?

MR VAN DER HEYDE: He did not have anybody just to tell him that his friend has died and what the reason for that - he himself has said that he did not believe what the reasons was for his friend that died so there's nothing further that I'd say ...(intervention)

CHAIRPERSON: So what you're submitting is that your client didn't give the order or any order or didn't supply them with firearms that they went in there as a gang initially with the intention to rob which they did?

MR VAN DER HEYDE: Yes.

CHAIRPERSON: And that whilst they were there they shot people and that may have been the random shooting of unknown people, may have been politically motivated just on the basis that they were IFP supporters and they were in ANC territory.

MR VAN DER HEYDE: That's right Mr Chairperson, I think I've heard it from the applicant himself that these things have happened before as well.

CHAIRPERSON: Yes. Mr Steenkamp, do you have any submissions to make?

ADV STEENKAMP: No submissions thank you Chairperson.

NO ARGUMENT BY ADV STEENKAMP

CHAIRPERSON: Ms Pretorius, how long do you think you'll need in order to submit your Heads of Argument?

MS PRETORIUS: Chairperson, if I submit it by the 17th March will that suit the Committee?

CHAIRPERSON: Yes. I think probably the best way to do it would be - I don't know, it would go to Mr Steenkamp, if he can give you information and then Mr Steenkamp's office or if not somebody in the TRC will be able to then get copies of your submissions through to Mr Koopedi, Mr Draht and Mr van der Heyde who may then supplement or respond to anything if they want to in writing and gentlemen, once you've received those copies, would ten days be sufficient for you to respond if you want to respond?

MR KOOPEDI: I think that's fair Chairperson.

CHAIRPERSON: Thank you, so then when these copies are sent, a date, approximately 10 days will be put on it and then - which means that by the end of the month we'll have all the arguments.

MS PRETORIUS: I'm indebted to the Chair.

CHAIRPERSON: Thank you. That then ladies and gentlemen brings us to a conclusion in this matter. We're not going to make a decision now because Ms Pretorius, as you've heard, has required time to make written Heads of Argument, she wants to put argument for her client on paper and submit it to us and we'll have to take into account that argument before we make up our minds but that's her argument, copies will be made available to all the legal representatives who will be able to answer to that argument and if they want to attack it they can attack it. So that then brings us to the end of this hearing, we will have to necessarily reserve our judgement, our decision, which will be handed down as soon as possible in written form and I would just like to thank all the legal representatives for their assistance in this matter, it's much appreciated. Thank you very much.

Mr Steenkamp, I believe we have one more matter on the roll, that of Mr Nosenga?

ADV STEENKAMP: That is correct, Honourable Chairperson, we've tried our utmost best to put it mildly to get in contact with the attorneys.

CHAIRPERSON: Yes well perhaps if we could just take an adjournment now, you can have another try. Do you think there's any chance of starting today? I don't know if any people here are interested in that matter as well or if they're just here for ...(intervention)

ADV STEENKAMP: I don't think so, Chairperson, but there's a possibility that certain people may have attended in the meantime but we will find it out in the meantime quickly.

CHAIRPERSON: Yes because I see that it's 3 o'clock now and if we can get a kick off today so much the better.

ADV STEENKAMP: I'll do that.

CHAIRPERSON: Thank you. We'll now adjourn, thank you.

WITNESS EXCUSED

COMMITTEE ADJOURNS