ON RESUMPTION
CHAIRPERSON: Mr Mohlaba?
MR MOHLABA: Thank you Chairperson. I will now be leading the third applicant, Mr Khubheka, and he elects to give his testimony in Zulu.
MUZI PATRICK KHUBHEKA: (sworn states)
CHAIRPERSON: Thank you. Mr Mohlaba?
EXAMINATION BY MR MOHLABA: Thank you Chairperson. Mr Khubheka, you are presently serving a prison term, and you are the applicant in this matter, is that correct?
MR KHUBHEKA: That is correct.
MR MOHLABA: You are, you have all along been in the same prison with your co-applicants, is that correct?
MR KHUBHEKA: That is correct.
MR MOHLABA: You are applying for amnesty in respect of an offence of murder, attempted murder and robbery with aggravating circumstances, is that so?
MR KHUBHEKA: That is correct.
MR MOHLABA: You heard the testimony of the first applicant, Mr Ngwenya? And do you confirm what he said in so far as it relates to you?
MR KHUBHEKA: Yes, I confirm.
MR MOHLABA: At the time of the commission of this offence, in respect of which you are applying for amnesty, were you a member or supporter of any political organisation?
MR KHUBHEKA: Yes, I was a follower of the ANC.
MR MOHLABA: Mr Ngwenya has indicated that he was in your company when a robbery was committed at Illovo as well as in a shoot-out where a police officer was killed and another injured, do you confirm that?
MR KHUBHEKA: Yes, I confirm that.
MR MOHLABA: I want you to take us through the robbery and I want you to explain specifically the role played by yourself at that house where the robbery was committed, that is no 4 Otto Street, Illovo.
MR KHUBHEKA: Should I start from there, no 4 Otto Street, Illovo?
MR MOHLABA: Yes, we already heard that you were present and the background of how the entire robbery was committed, was sketched out to the Committee.
I want you to explain to the Committee the role played by yourself in so far as it relates to that robbery.
MR KHUBHEKA: I was in possession of a 9mm short, it was myself as well as Mfanafuthi, Mr Ngwenya, the two of us had firearms. When we got there, the door was open and the people were sitting around the table. That is when we pointed the firearms at them and told them the reason for our visit, we indicated to them that we wanted firearms to protect the community.
They told us, or should I say, Mfanafuthi took Mr le Krish along, they went about looking for keys to the safe. I remained downstairs myself, in the company of Johnny and Elvis. Mfanafuthi as well as Jacob Maponyane had gone upstairs.
We remained behind. I am the one who was in possession of the firearm. We made them lay down on their stomachs and Mfanafuthi and Mr le Krish then came down and Mrs le Krish was taken along to go and look for the housekeeper who was thought to be in possession of the keys or knew where the keys were. They came back, in possession of two firearms, a .38 and a .44. One of us was given this .44 by Jacob Maponyane and Jacob Maponyane then went up to the upper room and I heard some noise from the back yard.
I told them to wait there, whilst I went out to investigate and as I was just closer to the door, I heard a gunshot. The gunshot had been fired from whence I came and as a result of that, I could not go back to the house to see what was happening.
I jumped a precast wall and fled into the golf course. That is how I fled.
MR MOHLABA: The position of the occupants of the house, can you explain, were they sitting, laying down, just explain, during the moment when Ngwenya and Maponyane were demanding firearms?
MR KHUBHEKA: We had made them lay down on their stomachs. Only one went up to look for the firearms.
MR MOHLABA: We have noticed from the court record, that some of the victims were streaked of their jewellery, can you comment on that?
MR KHUBHEKA: That is true, some of the family members were robbed of their jewellery. I don't know whether they were wearing it or whether they had it in their pockets, but yes, these were taken off them, because when we met the following day, the jewellery was produced by Johnny, that is when we met the following day, myself, Johnny and Elvis.
CHAIRPERSON: Sorry, are you saying Mr Khubheka, that during the time of the robbery, you were unaware that jewellery was taken, you only learnt that later, is that what you are saying, or what are you saying?
MR KHUBHEKA: Yes, that is correct because it was not within our plan to rob this family of their jewellery, we only went there solely for the firearms. Maybe at the time when I had gone out, that is when the robbery of the jewellery took place. I cannot comment on that.
MR MOHLABA: I have noticed that in your application forms, you also denied , that is in your statements in support of your application forms, you deny any involvement in the murder and the attempted murder. Do you still stand by those statements?
MR KHUBHEKA: I am involved in the murder as well as the robbery, therefore I am not sticking to the previous statement.
MR MOHLABA: Can you explain why you initially denied any involvement and subsequently changed and admitted your involvement in those offences?
MR KHUBHEKA: As I have explained that we are in the same prison, as well as my co-applicants. When we filled in the application forms, we came to an agreement. You see, nobody was helping us out in the filling in of the application forms, so we came to an agreement that as it were, we also saw the involvement of Mr Dullah Omar, the Justice Minister, involved in the establishment of the TRC, so that we came to a conclusion that therefore the Minister of Justice works hand in hand with the TRC and we agreed that we should use the same statements as we used in court, use them here in our applications.
MR MOHLABA: Thank you. I want you to take us through the incident of the shoot-out. Mr Ngwenya has indicated to the Committee that his firearm was not, was empty, he could not fire a single shot towards the officers, but he realised that there was an exchange of fire. Were you involved in the shoot-out with the police officers?
MR KHUBHEKA: Yes, I did partake in the shooting of the police.
MR MOHLABA: Can you explain briefly how this happened?
MR KHUBHEKA: When we left, remember that I went out of the house and I fled, jumping the precast wall, and as I was just about at the golf course, I saw Mfanafuthi and the others. Mfanafuthi, that is, and Maponyane. I saw their shadows in silhouette I suppose, following me, and we met at the park as people who were supposed to catch a taxi back home because the firearms that we had come for to defend our community, we were not secured.
When we went out of the golf course into a street, that is when we saw some 10111 vehicle belonging to the police, and this vehicle drove passed us and further down, made a U-turn back to us. It stopped at some place that seemed like a closed street, and when they stopped there, we had already made out what was happening, and we had already scattered.
When the police made this U-turn, I didn't see much of the things that were happening, except for the gunshot that I heard. I was also trying to flee to a place of safety where I could hide myself. There was this very high precast wall in this area, and there was some wall on the other area, therefore there was nowhere to flee to. I heard this gunshot and I also reacted the same way as any normal person would on being shot by the police.
We knew that the police, or should I say we knew how the police acted at that time, they didn't want to frisk us or search us, they just fired shots at us. I also reacted the same way, using the same firearm. Even though I was not necessarily aiming at a particular police person, but I was just shooting towards their direction as a result of the fright. I saw two policemen laying down. I got an escape and I fled.
MR MOHLABA: So you accept that you could be the person, or that is you were responsible for the death of the one police officer and for the injury of the other?
MR KHUBHEKA: Yes, I only learnt about that during the trial in court, because I knew that I was the one who was in possession of the firearm that was introduced in court. That is the firearm said to have been used in the fatal shooting of the police and the injuring of the other policeman.
MR MOHLABA: Thank you Chairperson, that is the evidence-in-chief.
NO FURTHER QUESTIONS BY MR MOHLABA
CHAIRPERSON: Thank you Mr Mohlaba. Mr Mapoma, do you have any questions that you would like to ask?
CROSS-EXAMINATION BY MR MAPOMA: Yes Chairperson. Mr Khubheka, are you the person who was found to have been, to have shot the deceased person in court?
MR KHUBHEKA: No.
MR MAPOMA: Who was found to have shot the deceased?
MR KHUBHEKA: Jacob Maponyane because, or should I say, that was only after he had been tortured into confessing.
MR MAPOMA: Your explanation for denouncing the statements that you have made before to the TRC, is that you agreed in prison to do that because you wanted to stick to the court record, is that what I understand you to be saying?
MR KHUBHEKA: Yes, that is correct. We perceived this as we explained that we thought this is the procedure, applications are processed here at the TRC.
MR MAPOMA: And you were found of having robbed jewellery, in court you were found of having done that, is that not so?
MR KHUBHEKA: Yes, we were charged for the robbery of jewellery.
MR MAPOMA: So why then don't you stick to that record and admit responsibility for robbery of the jewellery in line with your agreement with your co-applicants?
MR KHUBHEKA: The robbery of the jewellery, as I have explained earlier on, that we only saw the jewellery the following day, that is only when it occurred to us that there was jewellery, but that was not our intention.
MR MAPOMA: Yes, and you deny, in fact you deny that you robbed jewellery from those persons, you yourself?
MR KHUBHEKA: I personally did not rob them of any jewellery.
MR MAPOMA: In fact your version is that none of you, the three of you now here, participated in the robbery of the assets of those persons, apart from the firearms, is that correct?
MR KHUBHEKA: I have explained earlier on that we only learnt about the jewellery ...
MR MAPOMA: No, no, just answer my question. My question I just want you to confirm, my understanding is that, your version is that none of you as applicants there, was involved in the robbery of the jewellery and other belongings of those persons, other than the firearms? Is that correct or not?
MR KHUBHEKA: That is correct.
MR MAPOMA: Now let me just get clear here, when you arrived there, you say you caused the persons you were robbing, all of them to lay down, except for Mrs le Krish, is that correct?
MR KHUBHEKA: Yes, we made them all lay down. Mr le Krish came and he left in the company of Mr Ngwenya. Mr le Krish is the one who volunteered to show us the keys to the safe.
MR MAPOMA: Yes. And you were left there, keeping guard of those who were laying down?
MR KHUBHEKA: That is correct, indeed.
MR MAPOMA: Now, what were you doing at the time when Mr le Krish and Mr Ngwenya were somewhere else in the house, what were you left doing there?
MR KHUBHEKA: We watched over these people to make sure that they don't try tricks, because we were not quite sure whether there was anyone among them who has a firearm hidden somewhere in their possession or something. We wanted to make sure that they didn't start tricks that might disturb us.
MR MAPOMA: Yes. Now, amongst you who were keeping guard over those persons who were laying down, you are the only person who had a firearm with you, is that correct?
MR KHUBHEKA: That is correct.
MR MAPOMA: And once you heard a bang and a shoot-out, then you ran away?
MR KHUBHEKA: I went out of the house to investigate what was happening, because there was some noise and the person who was in possession of the firearm and now that these people were laying down, they certainly could not arise, and I took the opportunity to go and investigate outside. I heard a firearm or a fire shot and I then had to flee to save my skin.
MR MAPOMA: And your colleagues as well, fled?
MR KHUBHEKA: Correct.
MR MAPOMA: So, from that, when do you think then the robbery of those jewellery and other things took place? At what stage do you think that may have happened, given the explanation of the events that you have just given now?
MR KHUBHEKA: I cannot be specific as to the actual time, except to say that they were robbed of the jewellery, yes, because we saw it the following day, but as to how they were robbed of this, I really cannot say.
MR MAPOMA: Mr Khubheka, I put it to you that you must have witnessed robbery of the jewellery during that day, and if you say you did not witness that, you are not telling the truth before this Committee?
MR KHUBHEKA: I am telling you the truth, because had I seen the person who robbed them of the jewellery, I would not have allowed that, that was not within our plan, we went there solely for the firearms. I would therefore have stopped any attempt to rob these people of their jewellery.
CHAIRPERSON: Sorry Mr Mapoma, if I could just intervene. In the statement that you made to the Truth and Reconciliation Commission, I am looking at page 32 of the papers, right at the bottom it says
"... whilst running (this is after you had seen the police) I noticed a police car coming from Corlett Drive straight to my direction. I then (slipped or something) threw away some few rings in my possession ..."
what rings were you talking about there?
MR KHUBHEKA: That statement was derived from statements arising from confessions in court. I was being tortured and I therefore confessed to the police as stated there in the statement, but there is no way where I came across the police in the golf course as I was fleeing. We only met the police at Corlett Drive.
CHAIRPERSON: But this statement here, page 32, is not part of your confession. This is a statement that you made when you made your application, or after you made your application to this Committee?
MR KHUBHEKA: As I have stated earlier on when we met to fill in the application forms, we saw it appropriate to fill in the application forms based on the confessions because we didn't have much knowledge as to the operations of the TRC.
CHAIRPERSON: But notwithstanding, whatever you tell me, why say you "threw away a few rings?"
MR KHUBHEKA: It is because the police were torturing me and persuading me into admitting that I threw away some jewellery and therefore I would not say I was not in possession of these things, they were persuading me to that.
CHAIRPERSON: Thank you, Mr Mapoma.
ADV SANDI: Sorry Chair, if I can just take this a little further. Wasn't there a trial within a trial in court, where you told the Court that these confessions had not come from you willingly and freely and that you had been tortured by the police to make a confession?
MR KHUBHEKA: Would you please repeat the question?
ADV SANDI: Did you not tell the Court that you had been tortured by the police to make the confession?
MR KHUBHEKA: Yes, I did.
ADV SANDI: When you prepared a statement for submission to the TRC, you still relied on the very confession which you had challenged in court?
MR KHUBHEKA: Yes. That is because we regarded the TRC as the pure court, and realised that our chance for robbery is almost non-existent, as opposed to our chances for murder.
ADV SANDI: Thank you Mr Mapoma, sorry about that. You can continue.
MR MAPOMA: Thank you Chairperson. In your evidence,
are you aware at all that a video machine was robbed in that house?
CHAIRPERSON: While you are at it, and a camera?
MR MAPOMA: Yes, yes Chairperson.
CHAIRPERSON: I think it was an Olympus camera and a video machine, VCR?
MR KHUBHEKA: I disagree with that. No video machine was removed out of the house in my presence and certainly there is no camera that was removed from the house. That was a lie that was told in court.
MR MAPOMA: Thank you. Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Do you have any re-examination, Mr Mohlaba?
MR MOHLABA: None Chairperson.
NO RE-EXAMINATION BY MR MOHLABA
CHAIRPERSON: Judge Motata, do you have any questions that you would like to ask?
JUDGE MOTATA: I've got none, Chairperson, or rather let me put it, in your statement again, just before then you say what my brother read to you on page 32, that earlier you say
"... two guns were found and some jewellery was also found."
You can have sight of it before you noticed the police coming down Corlett Drive?
MR KHUBHEKA: Yes, I can see that.
JUDGE MOTATA: So you say you saw the jewellery when it was produced by Johnny the next day?
MR KHUBHEKA: That is indeed correct. I saw the jewellery the following day when Johnny produced it.
JUDGE MOTATA: When you regrouped after running away, was it only the three of you, that is before the shooting with the police?
MR KHUBHEKA: There were four of us.
JUDGE MOTATA: Who was absent?
MR KHUBHEKA: Johnny was the one absent.
JUDGE MOTATA: So you cannot vouch for Johnny for instance, that he might have hidden some other stuff he had taken from the house, you wouldn't know that, would you?
MR KHUBHEKA: What I know is what he produced, that he did without our permission, I am talking about the jewellery.
JUDGE MOTATA: Thank you Chairperson, I've got no further questions.
CHAIRPERSON: Mr Sandi, any questions?
ADV SANDI: No question, thank you Chairperson.
CHAIRPERSON: Just one question, what happened to the jewellery that Johnny produced?
MR KHUBHEKA: Once this jewellery was shown to us, he put it in a pocket and it was exchanged for ammunition.
CHAIRPERSON: Thank you. Any questions arising, Mr Mohlaba?
MR MOHLABA: No thank you Chairperson.
NO FURTHER QUESTIONS BY MR MOHLABA
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: None Chairperson.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Thank you Mr Khubheka, that concludes your testimony.
MR KHUBHEKA: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Mohlaba?
MR MOHLABA: Thank you Chairperson, I would like to call the second applicant, Jacob Maponyane.
