JOHANNES MAJASANA MARINGA: (sworn states)
CHAIRPERSON: Yes, Mr Richard.
MR RICHARD: I am indebted to the Committee for giving me leave to call Mr Maringa. As has been advised off record, Mr Maringa maintains that he did bring an application for amnesty for the incidents relative to the events we heard today and for another incident which took place in 1990 in the Transkei. I proceed to lead his evidence.
CHAIRPERSON: Yes.
MR RICHARD: Thank you.
EXAMINATION BY MR RICHARD: Mr Maringa, at page 113(a) of the bundle, I note ...(intervention)
CHAIRPERSON: Sorry, Mr Richard, just give us a second. We will proceed in a minute, my colleague just needs to attend to something. Yes, won't you just repeat your introduction.
MR RICHARD: Thank you. Mr Maringa, if you look at page 113(a) of the record, you will see that you're given the surname Majasana, not Maringa, which is your correct surname?
MR MARINGA: Majasana is not my surname, it's my second name.
MR RICHARD: Now were you ever known by any other surnames besides Maringa?
MR MARINGA: It's only names like Joe, ...(indistinct), those are the names which they used to call me.
MR RICHARD: But at no stage, even in the struggle, did you assume a war name which didn't look like any of the names that we have in front of us?
MR MARINGA: Yes, there were similar cases.
MR RICHARD: Did you use any names like that?
MR MARINGA: Yes.
MR RICHARD: What were your war names?
CHAIRPERSON: Well, I'm sorry to interrupt you Mr Richard, that was obviously just a typographical error, because on page 113(b), they seem to be referring to Mr Maringa properly as J M Maringa.
MR RICHARD: The reason for my question is that there is a database in Cape Town and if there is ...(indistinct) it might be well to have it on record so that when ...(indistinct - mike not on) there is this application on file.
CHAIRPERSON: Yes, so when you come to the question whether he's applying or not, perhaps you can just ask him under what name.
MR RICHARD: Correct.
CHAIRPERSON: Ja.
MR RICHARD: Did you ever assume any other surname while in the struggle?
MR MARINGA: I used the names Joe.
MR RICHARD: Now you're aware that the problem today is that you say you made an application for amnesty which doesn't appear in the bundle. I'm going to ask you to look at page 4 of the bundle, which is an amnesty application. Do you recognise that form?
MR MARINGA: Yes.
MR RICHARD: Now did you ever complete a form the same as that?
MR MARINGA: Yes, I completed the form and Comrade Sipo is the one who took all our forms, so that they may be able to post them because I am here ...(indistinct)
MR RICHARD: Thank you. Now when did you complete?
CHAIRPERSON: Just a minute. Sipo who are you referring to?
MR MARINGA: Sipo Ngwenya, the guy next to me.
CHAIRPERSON: Oh, who's he? Are there two Sipo's here?
MR RICHARD: What's Sipo's surname, the one next to you?
CHAIRPERSON: Ngwenya?
MR MARINGA: Yes.
CHAIRPERSON: Okay. So you say that Mr Ngwenya took your application?
MR MARINGA: Yes.
MR RICHARD: Now when did you complete the form? Was it 1997, 98, 99?
MR MARINGA: It was 1997.
MR RICHARD: Do you remember when during 1997?
MR MARINGA: I don't still remember ...
MR RICHARD: The month?
MR MARINGA: The month, yes.
MR RICHARD: Now when you completed that form ...(intervention)
CHAIRPERSON: I'm sorry where ...
MR RICHARD: Where were you when you completed the form?
MR MARINGA: I was here in ...in prison.
CHAIRPERSON: You say you were in Leeukop Maximum Prison during 1997. Were you a sentenced prisoner, or what was your position?
MR MARINGA: Yes.
CHAIRPERSON: You were serving a sentence?
MR RICHARD: Chair, if I might put the question this way, during 1997 were you a convicted prisoner serving a sentence in Leeukop?
MR MARINGA: Yes.
MR RICHARD: Now what crime were you convicted of?
MR MARINGA: For a murder case.
MR RICHARD: Now for the murder of whom, where?
MR MARINGA: For the murder of Dlamini.
MR RICHARD: No when - now I had asked you for which murder had you been convicted and sentenced to jail and you gave an answer, could you please repeat your answer?
MR MARINGA: I was convicted for a murder of Mr Dlamini.
MR RICHARD: And what sentence did you receive?
MR MARINGA: I was sentenced to death.
MR RICHARD: And when was that sentence imposed?
MR MARINGA: I was sentenced in 1991 on the 24th of May.
MR RICHARD: 1991?
MR MARINGA: Yes.
MR RICHARD: Now when you completed the form for amnesty, at paragraph 9 (a), you were asked a question where it says
"Furnish sufficient particulars of the acts, omissions or offences associated with a political objective in respect of which amnesty is sought, including dates, places and natures thereof."
In other words, what did you apply for amnesty for. What did you answer?
MR MARINGA: I stated clearly that the deceased was a stumbling block. A stumbling block in these cells as one of the leaders of UDF based there in Standerton.
MR RICHARD: I'm not sure if I understand you. Are you saying you applied for amnesty for the murder in Umtata in 1990?
MR MARINGA: That was in 1990, correct.
MR RICHARD: And then did you apply for amnesty for any other offences?
MR MARINGA: I applied for that murder case and the other cases.
MR RICHARD: In other words the cases that we've been discussing today?
MR MARINGA: Yes.
MR RICHARD: Now did anyone assist you in filling in that form?
MR MARINGA: I filled up the form.
MR RICHARD: And then what did you do with the form?
MR MARINGA: There was no one who sort of telling me exactly as to say what is it exactly what I was expected to write, but I used my own understanding.
MR RICHARD: Now Mr Maringa, you filled in the form and you signed it. Who did you sign it in front of?
MR MARINGA: I signed it in front of Sipo Ngwenya, the person who brought it.
MR RICHARD: Now if you have a look at an application for amnesty, you will see that it ends....(tape ends) ....in front of a Commissioner of Oaths
MR MARINGA: To elaborate, I will put it in this fashion. Since the form was brought to me by Mr Ngwenya, it has been signed now, like it should be now. The only thing that I needed to do is just to fill in the information needed.
MR RICHARD: Now my question is very, very simple and straightforward. After the form had been completed, did you take the form to any official within the prison and say: "I want to take an oath. I want to swear that this form is true and correct"?
MR MARINGA: No, I did not do that, but at a later sage when Mr Matlala arrived, I did again sign in front of him, with the impression that he was from the TRC.
MR RICHARD: I'm going to come to Mr Matlala next. So you didn't sign that form in front of a Commissioner of Oaths.
MR MARINGA: Yes.
MR RICHARD: Then, once you had completed that form, if I understand you correctly what you did next was you gave that form with all the information filled in, to Mr Ngwenya, Sipo Ngwenya.
MR MARINGA: That's correct.
MR RICHARD: Do you know what he did with it once he left you?
MR MARINGA: He told me, yes.
MR RICHARD: What did he tell you?
MR MARINGA: He said he had submitted the forms to the offices which he was supposed to.
MR RICHARD: Now you've mentioned Mr Matlala. When did Mr Matlala come and see you later? How long later? How long?
MR MARINGA: Mr Matlala came to me, if I'm not mistaken, it was after June of 2000, that is when he came to me and said I must till and sign the form, of which I did. He took it and what he said to me is that he was going to consult my fellow comrades who are sitting with me at the present moment. Thereafter he said he will go to TRC and plead that we should be given another date, since he came to me on Friday while we were supposed to appear on Monday.
MR RICHARD: Are you talking about June this year, or are you talking about September/October this year?
MR MARINGA: I'm talking about June 2000.
MR RICHARD: Now the form that Mr Matlala had, did it look like the one I showed you at page 4, or was it just an ordinary piece of paper full of handwriting?
MR MARINGA: I would say, even if I couldn't look at it attentively, but it was a form like that, that is what I assumed.
MR RICHARD: When you say a form like that, what do you mean?
MR MARINGA: The form that is like the one that you are showing me.
MR RICHARD: A form like this?
MR MARINGA: Yes.
MR RICHARD: I'm showing you page 4 again.
MR MARINGA: Yes.
MR RICHARD: Now, I now show you page 113(a) of the bundle. Please, can you read?
MR MARINGA: I can.
MR RICHARD: Now ...
MR MARINGA: Must I read loud.
MR RICHARD: No. I want to ask you a question. You've read a couple of lines. Now when did you write down what you say in this statement? Was it this year, last year, year before?
MR MARINGA: I wrote it in 1997 and I repeated it when Mr Matlala came to me.
MR RICHARD: Now what is said on page 113(a) and 113 (b), was that part of your application for amnesty?
MR MARINGA: Yes.
MR RICHARD: I then proceed to the events that we've been discussing today.
CHAIRPERSON: Just before you proceed. The form that Mr Matlala had that looked like the amnesty application form, was it empty, no information on it and did you then give him information to fill in on the form, or what happened?
MR MARINGA: Will you please repeat.
CHAIRPERSON: That form that Mr Matlala had, the one that looks like the form that the lawyer showed you, was it an empty form, without any information on and did you have to give him information to put into the form, or what?
MR MARINGA: Yes.
CHAIRPERSON: And did he ask you questions, to get information from you?
MR MARINGA: He asked me questions like how do I say this my case is politically motivated.
CHAIRPERSON: Yes and did he write your answers down?
MR MARINGA: Yes, he wrote my answers down and at the end of all that, did you sign the form, or what happened?
MR MARINGA: Yes at the end I signed and he signed too.
CHAIRPERSON: Both of you signed. Okay. Yes, Mr Richard.
MR RICHARD: One last question on that point. This form that both you and Mr Matlala signed, when did you both sign that form? Was it 1997, 98, 99, 2000?
MR MARINGA: We signed it in 2000 at Leeukop Maximum Prison during the presence of the authorities there.
MR RICHARD: Thank you. Now was Mr Matlala...(intervention)
ADV BOSMAN: Sorry Mr Richard, may I just inquire, did you tell Mr Matlala that you had also filled out a form in 1997?
MR MARINGA: Yes.
ADV BOSMAN: And what did he say then about that form?
MR MARINGA: He said to me he had a problem of tracing where I am. Then it was up until when he visited my fellow comrades, that is when he got the information that I am in Leeukop Maximum Prison, of which he came to me.
ADV BOSMAN: Thank you Mr Richard, I just wanted to clear that up.
MR RICHARD: Thank you. Now one last question. Was Mr Matlala the only investigator from the TRC that ever came to see you, or were there others?
MR MARINGA: There were two when they came, but the person who I spoke to, is Mr Matlala.
MR RICHARD: But nobody else came to see you before Mr Matlala?
MR MARINGA: No.
MR RICHARD: Thank you. Now by arrangement with the Committee and on the basis that they will hear your evidence on a provisional basis, I'm going to proceed to lead you on the events that we've discussed today. I won't talk about the 1990 Transkei incident, that will be investigated and we will hear what happens.
Now you've been here all day and you've heard the evidence given by the six applicants that gave evidence before you.
MR MARINGA: Yes.
MR RICHARD: Did you understand what they said?
MR MARINGA: Yes.
MR RICHARD: Now did you disagree with anything they said?
MR MARINGA: I cannot say I disagree with them.
MR RICHARD: Now ...
MR MARINGA: But to add.
MR RICHARD: What would you like to add?
MR MARINGA: There was the issue of members of MG Pirates who were killed. The statement was clear from us as comrades when we discussed. Basically it was based on those who were taking an active role, to such an extent that I do not remember even one instance whereby one of the MG supporters who were not taking an active role of killing, was harassed or killed.
MR RICHARD: Can I tell you what I understand by your answer, then tell me yes or no, whether I've understood your statement correctly. What I understand you to say is that not one of the Easter MG Pirate Soccer Club members who got killed were innocent of attacking the UDF comrades.
MR MARINGA: Yes.
MR RICHARD: Thank you. Now just listen and follow the questions. Now, today we've heard evidence of six different events, the first one being the killing of Whisky Lulu Louw. Now my question there is, did you know Mr Louw?
MR MARINGA: Yes.
MR RICHARD: Now what role did you play in his killing?
MR MARINGA: I never played a role in that.
MR RICHARD: Did you hear about his killing?
MR MARINGA: Yes, I did.
MR RICHARD: How long after he was killed did you both hear about it?
MR MARINGA: The same day.
MR RICHARD: And what was your reaction?
MR MARINGA: The reaction was to applaud my other comrades.
MR RICHARD: Now my next question is relative to the bus incident. Were you one of the active role players in the attack on the bus?
MR MARINGA: No.
MR RICHARD: And again, did you only hear of the event after it had happened?
MR MARINGA: Yes, I heard.
MR RICHARD: And did you associate yourself with what your comrades had done?
MR MARINGA: Yes.
MR RICHARD: Then the third incident is the killing of Mr Masebuko by Sipo Ngwenya. Did you play any active role in that event?
MR MARINGA: No, there was no active role.
MR RICHARD: And, let me put it this way. Which of the events that you heard today did you play an active role?
MR MARINGA: If I'm not mistaken it's case number 4.
MR RICHARD: Case number 4? Now that was the killing of the three vigilantes. What role did you play there?
MR MARINGA: I went there with my fellow comrades. When we arrived before we could get into that particular house or office, if I may say so, we discovered that there were a lot of people inside and since one of them saw us, he reported to them to say: "The comrades are against us", then the door was locked. The only way of us making them to open the door, was to shoot because comrade Ngwenya had a gun in his possession. He shot, but not pointing at any person. Then the door was opened. That is when the stabbings took place.
MR RICHARD: Did you stab anyone?
MR MARINGA: Yes.
MR RICHARD: Do you remember who you stabbed?
MR MARINGA: I cannot say who, because it was dark.
MR RICHARD: Do you remember how many people you stabbed?
MR MARINGA: I remember coming face to face with one person.
MR RICHARD: Do you remember that person's name?
MR MARINGA: Like I've said, it was dark, I couldn't see who it was.
MR RICHARD: Now, to what organisation did the people in this coal office, coal house belong?
MR MARINGA: Some were supporters of Eastern MG Pirates, others were players, others were just people who used to stay there.
MR RICHARD: Now when you stabbed people, did you know the difference between residents of the house and Eastern MG Soccer Club supporters or players?
MR MARINGA: Yes.
MR RICHARD: How?
MR MARINGA: Because we were exchanging words there and one of them, he came to me and I couldn't hurt that guy because when he said to me "Maringa", I started realising who the guy was and I was sure that the guy knows nothing.
MR RICHARD: Now are you certain that you didn't stab innocent bystanders?
MR MARINGA: Yes.
MR RICHARD: And you are also certain that your comrades didn't stab innocent bystanders?
MR MARINGA: Yes.
MR RICHARD: So in other words, if we look at page 1 of the bundle, that's the summary of the events, where the author describes Sipo Ngwenya and five other unnamed UDF members, you were one of those five?
MR MARINGA: Yes.
MR RICHARD: Who were the other four?
MR MARINGA: The other four was Sipo, Dida Twala and Papa Nkabinde are late.
MR RICHARD: Can you remember any more?
MR MARINGA: No.
MR RICHARD: Now with regard to the other incidents that I haven't mentioned, you've already replied to me that you didn't take an active part in them and you knew about them afterwards. Is it correct that once you heard about the incidents, you as a member of the UDF, associated yourself with what your comrades had done?
MR MARINGA: Yes, I did so.
MR RICHARD: Now in relation to the times, I'm going to put a proposition to you with which you must either agree or disagree. If you think I'm wrong, please tell the Committee.
I am right when I say that at the time during 1987, any particular person or association was seen to work in co-operation with the police, or giving evidence to the police or working in co-operation with the apartheid local Councillors, they were seen as "impimpis" and enemies of the liberation struggle?
MR MARINGA: It was like that.
MR RICHARD: Now it is also true that you as members of the UDF in Standerton, saw the members and supporters and players of the Eastern MG Soccer Club as "impimpis" and enemies of the liberation struggle?
MR MARINGA: yes.
MR RICHARD: Now for how long were you in the UDF?
MR MARINGA: I was a member of UDF from 1985.
MR RICHARD: No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Did you hold any positions in that organisation or in its structures?
MR MARINGA: It was like this. It was not being an office bearer as such, because of we had no offices in town and the organisation was not recognised by the then apartheid government, seeing that we had to say, like the person next to me, we used to say: "You are going to be a Chairman" when we were supposed to have meetings and usually we used to be given or to give each other some certain tasks to do, that's why I'm saying it was not to be an office bearer in that sense.
CHAIRPERSON: But you played an active role in the affairs of the organisation, would that be correct, or incorrect?
MR MARINGA: Yes, I did.
ADV BOSMAN: Just while you're busy Chairperson, did you participate in that decision on the 3rd of January when it was decided that you would attack the supporters and the members of the team of Pirates?
MR MARINGA: Yes, we reached an agreement on that day.
CHAIRPERSON: Thank you. Were you charged in connection with the matter of Mabisi, in these incidents that we're talking about today?
MR MARINGA: Yes, I did.
CHAIRPERSON: Was that the only one that you were charged for?
MR MARINGA: I was discharged to all other cases.
CHAIRPERSON: Ja, no, no, was this the only case where you were taken to court? The only incident that you were taken to court for was Mabisi?
MR MARINGA: No, that was ...(intervention)
CHAIRPERSON: I'm talking about just these six incidents that we're talking about today, were you charged with any one of the other?
MR MARINGA: Yes.
CHAIRPERSON: Was it just Mabisi?
MR MARINGA: No.
CHAIRPERSON: Were you taken to Court for any of the other incidents that we spoke about here today?
MR MARINGA: Yes, I did, but I was acquitted before the case was even tried.
CHAIRPERSON: So you were acquitted on all of these, the incidents that we're talking about here that happened in Standerton, you were acquitted. You were never convicted for any of these incidents?
MR MARINGA: Yes.
CHAIRPERSON: The thing that you were convicted of and that you are in prison for, is the other incident down in the old Transkei.
MR MARINGA: Yes.
CHAIRPERSON: Good.
MR MARINGA: But to elaborate further there.
CHAIRPERSON: Ja, I don't want to talk about that Transkei matter, I just was to confirm that we understand your situation correctly.
MR MARINGA: Yes.
CHAIRPERSON: Good. Yes, any cross-examination Mr Nyawuza?
MR NYAWUZA: Only to clear the air as regards the incidents on which he was arrested. I think I'll have to ask him one by one.
CROSS-EXAMINATION BY MR NYAWUZA: Mr Maringa, were you arrested for the killing of Lulu Louw?
MR MARINGA: I was arrested but I was not charged.
MR NYAWUZA: And then for the N3 freeway bus attack, were you charged?
MR MARINGA: No.
MR NYAWUZA: And then for the killing of Mr Masebuko?
MR MARINGA: I was not charged although I was kept for a night at the police station.
MR NYAWUZA: And then for the killing of the three vigilantes, Mr Mabuleka Dlamini, Esau Twala and Mzwaike Mhlapo?
MR MARINGA: I was arrested and charged.
MR NYAWUZA: And what subsequently happened to the case?
MR MARINGA: I was discharged from that case.
MR NYAWUZA: And then on the assault and killing of Mr Mabisi?
MR MARINGA: No.
MR NYAWUZA: And then on the shooting of Mr Spundla Mpila?
MR MARINGA: No.
MR NYAWUZA: Okay. No further questions thank you.
NO FURTHER QUESTIONS BY MR NYAWUZA
CHAIRPERSON: Thank you Mr Nyawuza. Ms Mtanga?
MS MTANGA: I have no questions, Chairperson.
NO QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you. Has the Panel got any other questions.
ADV BOSMAN: I've got no questions, thank you Chairperson.
ADV SANDI: No questions.
CHAIRPERSON: Any re-examination?
MR RICHARD: No re-examination.
NO RE-EXAMINATION BY MR RICHARD
CHAIRPERSON: Yes, Mr Maringa, thank you, you're excused.
WITNESS EXCUSED
CHAIRPERSON: Are you calling any witnesses?
MR RICHARD: I re-call Mr Ngwenya.
CHAIRPERSON: You re-call Mr Ngwenya? Very well. Mr Ngwenya.
SIPO A NGWENYA: (s.u.o.)
CHAIRPERSON: Mr Richard.
MR RICHARD: Thank you.
RE-EXAMINATION BY MR RICHARD: Mr Ngwenya, we've just heard Mr Maringa give evidence.
MR NGWENYA: That's correct.
MR RICHARD: Who organised the completion of the applications for amnesty for you and your comrades?
MR NGWENYA: We wrote a letter requesting application forms from the Cape Town office. That letter was posted by fast mail.
MR RICHARD: Did you organise the getting of the forms and the completion of the forms?
MR NGWENYA: That's correct.
MR RICHARD: Did anyone assist you in doing that?
MR NGWENYA: No one assisted us, it was just the comrades and we were together as we wrote the form and filled it in. However, we did not receive any assistance from a legal adviser or somebody of that nature.
MR RICHARD: Now the six of you who gave evidence first, did you also give them forms to complete and collect the forms from them?
MR NGWENYA: Yes, I did. I gave them the forms and I collected them thereafter.
MR RICHARD: Now, I would like to show you pages 4, 5, 6, 7, 8 and 9. Now that is Philip Toto Madonsela's application for amnesty. Now who gave him this application form?
MR NGWENYA: The forms were posted in one envelope.
MR RICHARD: No, you're not answering my question. Who gave Mr Madonsela this form? Did you give it to him?
MR NGWENYA: Yes.
MR RICHARD: Now on the 14th of April 1998, who arranged for Mr Madonsela, as is evidenced by page 9, to go to the Standerton Magistrate's Court and to take an oath?
MR NGWENYA: We were all together as comrades when we went to the Magistrate's Court. I also had Mr Maringa's form on that occasion and we all proceeded to the Magistrate's Court to take the oath so that the forms could be then posted to Cape Town.
MR RICHARD: And so it's not surprising that when I compare page 41 to page 9, that all these affidavits are dated 14 April 1998, because you all went down to the Standerton Magistrate's Court to swear the oath.
MR NGWENYA: That's correct.
MR RICHARD: Now how did the form get to Mr Maringa? Did you take it to him?
MR NGWENYA: I took it personally to Leeukop Prison.
MR RICHARD: Now did Mr Maringa sit down there and then during that visit and complete the form, or did you leave the form with him?
MR NGWENYA: I did not leave it, I sat there whilst he filled it.
MR RICHARD: And then, did you remember what crimes he made application for amnesty for?
MR NGWENYA: He applied for incidents that took place in Standerton as well as the crime that was committed in Transkei.
MR RICHARD: Did you read the form yourself and see that is what he said in his application form?
MR NGWENYA: When he filled it in, we were together and we discussed it as he was writing.
MR RICHARD: Now when it came to taking the oath, how did you go about doing that?
MR NGWENYA: I took Mr Maringa's form to the Standerton Magistrate's Court on the 14th of April, so that when we all went to take the oath at the Magistrate's Court, I also took Mr Maringa's form along.
MR RICHARD: And did the person who took the oaths sign Mr Maringa's form in his absence?
MR NGWENYA: Yes, the oath was taken and the form was stamped.
MR RICHARD: Now do you know who signed the form and put the stamp on it? Do you know the person's name?
MR NGWENYA: I do know the person, but I've forgotten his surname.
MR RICHARD: Now you had seven applications which were now in your opinion completed, what did you do with them?
MR NGWENYA: We then went to the post office and we posted them to Cape Town by fast mail.
MR RICHARD: So then, I haven't checked all six that are in the bundle, but it's not surprising that if I compare page 4 to page 86, it appears that both those amnesty applications were received on the 22nd of April 1998. You see the date stamp? Now think very carefully, was Mr Maringa's application in that bundle of seven applications that you posted to Cape Town?
MR NGWENYA: I am certain it is so. There may have been a problem because myself and Toto Madonsela experienced difficulty to the effect that the Cape Town office informed us that they had not received our form, when we explained that they had been sent in one bundle, they later then recovered them.
MR RICHARD: Who did you speak to at the Cape Town office when you had the trouble?
MR NGWENYA: I cannot recall the lady I spoke to.
MR RICHARD: But your answer is none the less clear, you had seven applications, which included the six, whose applications were heard today, plus Mr Maringa's application, that makes seven and all seven were posted to Cape Town.
MR NGWENYA: Yes, I swear that is the truth.
MR RICHARD: And did anyone else see you post the envelope or help you post the envelope to Cape Town?
MR NGWENYA: All of us except Mr Maringa were there when we went to the Post Office.
MR RICHARD: Thank you. No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Thank you Mr Richard. Mr Nyawuza, have you got any?
MR NYAWUZA: No questions, Chairperson.
CHAIRPERSON: Thank you. Ms Mtanga.
MS MTANGA: No questions, Chairperson.
CHAIRPERSON: Panel?
ADV SANDI: Yes, maybe just one question from me, Mr Chairman. Sorry, can you just tell us, amongst yourselves who was responsible for the actual filling in of the forms because I see that the handwriting looks very much the same in all these forms?
MR NGWENYA: I filled all my form. Some were assisted by comrade Sipo Dlamini. He would read the question from the form and he would give the response.
ADV SANDI: Are you sure? Because the handwriting looks very much the same in all of them. I look particularly at the S of Standerton. The S shape is similar in all of them.
MR NGWENYA: Page 97 is my handwriting. Page 68 is Mr Sipo Dlamini's handwriting.
MS MTANGA: Chairperson, if I may come in, I think the handwriting of Dlamini and Ngwenya, the handwritings are very similar, but Sipo, if you check the e, I also checked that, they are totally different.
CHAIRPERSON: I'm happy to be in the presence of such distinguished experts on this field, so I bow to your authority.
ADV SANDI: Thank you.
ADV BOSMAN: Can I just ask you one question Mr Ngwenya, which isn't clear to me. The affirmation, the person who took the oath, did he also sign Mr Maringa's form?
MR NGWENYA: That's correct.
ADV BOSMAN: Because that I don't quite understand. Who took the oath to say that what was in Mr Maringa's form is right, because Mr Maringa wasn't there.
MR NGWENYA: We went to the Chief Magistrate's office and the forms were submitted there. I and other comrades were known in the Standerton area, because we had been in and out of prison, so the Magistrate just stamped all the forms, after we'd explained to him that we were making applications to the TRC. We thereafter took those forms and put them in one envelope and sent them to Cape Town.
ADV SANDI: I understood you to say that you have forgotten the name of this Magistrate. Can you please give us a physical description? How does he look like?
MR NGWENYA: Yes.
ADV SANDI: How did he or she look like, this Commissioner of Oaths? Could you just say how this person looked like?
MR NGWENYA: He's about that tall. He was with us, he spoke to the clerk and we were shown inside the office and he wore spectacles. On that day he wore a white shirt, a red tie, with a Court emblem.
ADV SANDI: Thank you.
ADV BOSMAN: Could we perhaps try this. If you look at page 92 for instance, there is the Magistrate's signature, if it was a Magistrate, there is his signature. Doesn't that prompt your memory in regard to his name at all?
MR NGWENYA: No, I do not want to lie, it does not.
CHAIRPERSON: Did I understand you correctly? Did the office of the Commission in Cape Town at one stage tell you that your own form and the form of Madonsela was not there in the office?
MR NGWENYA: That's correct.
CHAIRPERSON: Then you told them but you sent all these forms together?
MR NGWENYA: That's correct.
CHAIRPERSON: Did they then look again and then later found your form and Madonsela's form as well?
MR NGWENYA: Yes, they informed so by way of a letter.
CHAIRPERSON: Yes. Ms Mtanga, what was that second cut-off date?
MS MTANGA: It was 30th September 1997 or 1998, Chairperson, I'm not sure. 98, 30th September 1998.
CHAIRPERSON: Yes, I think so, ja. Yes, thank you. Have you got ...
MR RICHARD: I have no further questions for this witness. NO RE-EXAMINATION BY MR RICHARD
MR RICHARD: I don't think I can take it further. I would ask the Committee for an indication. The evidence has been that all six, or most of the six were in the process of signing affidavits and posting affidavits, do I really need to call any more than Mr Ngwenya, which I've done? I don't believe I need to.
CHAIRPERSON: Can I just ask you just one other thing, just about dates. Mr Maringa seems to be under the impression that he signed these things in 97 and the forms were attested or signed by the Commissioner of Oaths on the 14th of April 1998. Now can you just be of some assistance there, Mr Ngwenya? Is Mr Maringa correct when he says he completed it in 97, or is he mistaken about that date, because you only signed it before the Magistrate in April of 98.
MR NGWENYA: Thank you Chair. I think he is confusing the years because there was no way of recording everything not anticipating this problem. I think that's the reason why he is confusing the dates. That is why in some instances we indicate that we cannot recall the dates, because we were not recording everything as things were unfolding.
CHAIRPERSON: You were not for example sitting around with his form for months before you sent it to Cape Town? Did you try to do all these as quickly as possible?
MR NGWENYA: Chair, the forms did not spend even two weeks with us. Upon received of the forms we filled them in and that one particular weekend I drove to Leeukop Prison to complete the form with Mr Maringa and we went back to Court for a stamp and a signature.
CHAIRPERSON: They were with you for about two weeks roughly, it couldn't have been much longer than that.
MR NGWENYA: Indeed so, not even the whole week upon receipt. We received the forms on that particular day, filled them in and on the weekend drove to Leeukop because we wanted to post them back speedily because the closing date was nearing.
CHAIRPERSON: So Maringa's form must have been filled in in 1998?
MR NGWENYA: That is correct.
CHAIRPERSON: Yes, alright, that clarifies it, thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Richard the evidence doesn't seem to be in dispute, so I don't believe that its going to add significantly either way to call all of the remaining applicants to come and confirm that that is what happened, so although it's your call ...
MR RICHARD: I'm more than happy not to call the next five persons to give evidence about what happened in the post office and what happened in the Magistrate's office. I think it's on record.
CHAIRPERSON: Yes, as I say, look, it doesn't appear to be in dispute, so in terms of weight it's neither here nor there, really.
MR RICHARD: And on that note, I close the applicants' case.
CHAIRPERSON: Yes, thank you. Mr Nyawuza.
MR NYAWUZA: Thank you Chairperson and Honourable Committee Members. The victim, being Mr Aubrey Mabola, Mr Aubrey Mabola had to leave for East London but he advised me that he's withdrawing his testimony that he wanted to testify and the in that both he and Mr Mpila are going to confirm what the applicants have said and in the light thereof, we don't see any reason why we should call them because they'll be saying the same thing that transpired during that era. So in the light thereof we are not going to call any witnesses.
CHAIRPERSON: Yes, thank you Mr Nyawuza, we've noted that and it is correct indeed that we have heard quite a great deal of evidence about that situation, so I think there's merit in your decision in that regard. Ms Mtanga?
MS MTANGA: I have no evidence to lead, Chairperson, thank you.
CHAIRPERSON: Thank you. Mr Richard, on the merits of the amnesty applications as well as the position of Mr Maringa, any submissions?
MR RICHARD IN ARGUMENT: On the merits of the applications, I submit firstly that the six applicants whose applications were enrolled for hearing today, were made in compliance with the Act. No challenge has been raised. If a challenge were to be raised, the form of their completion might have been an issue, in other words, I don't think I can really submit that each applicant applied in specific detail for all the transaction that he might have applied for amnesty for, if we
were going to take a super-technical approach to the completion of the amnesty applications. So that means in relation to the form of the application, my submission is that on the face of each application, it is clear which sequence of transactions the applicant wanted to apply for amnesty for. The fact that the evidence today goes further than the particular application form and spell out more and better detail and particularity should not be held against them. In other words, it's not a case where no information at all was disclosed. I'm comparing it to other matters where from a victims point of view made a case that, where nothing is disclosed there is no application, but where something is disclosed, which is developed in evidence, there is a good application and I draw a big distinction between the two, so I do not believe that the form should be held to the prejudice or detriment of any particular applicant.
Then in relation to the substance and merit of the applications, we have a straightforward and what has now become typical situation. The United Democratic Front members were confronted with the reality that some of their members had been attacked and killed by persons who were perceived and I stress the word perceived, to be collaborators with the South African Police and supporters of the apartheid Councillors of the time. Whether objectively that was in fact true, is not necessarily the test. The test is only whether that perception stands a critical and close examination.
It is not seriously contested that the members of the Easter MG Pirates Soccer organisation did not co-operate with the police, in fact the evidence is to the contrary, they were seen to be in co-operation with the police. Taking into account the circumstances of the time, the environment, the killings and the reality of tit for tat violence, I don't believe that there was anything frivolous or irrational about how the UDF activists perceived members of the MG Pirates Football Club.
So indeed it is submitted that in relation to each of the attacks and murders and assaults outlined in the six events under discussion, it is correct to hold and I submit proper to hold that there were attacks on people perceived and held in the bona fide belief of my clients to be opponents of the liberation struggle against whom, as my Learned Colleague admits, there was a war against, there was a state of war.
When I refer to my Learned Colleague and the facts of the matter, it is well to note that my Learned Colleague makes the assertion that were he to have called his witnesses, they would corroborate and confirm what was said, so I do not believe that there can be any serious challenge to the facts of the matter.
I must address the Committee further on the political nature of the acts. There I can be short. The victims of the attacks at the time, were perceived to be enemies, people who killed members of the United Democratic Front and it is plain that their killing was an act done in furtherance of the UDF and it's principle, the African National Congress.
Proportionality needs to be considered. In this case, certainly attempted murder and murder and necklacing were perpetrated but as has been held in many amnesty applications, in the context of the mid eighties to the early nineties, taking into account the emotional fever, the pitch, the political passion felt at the time, drastic though the remedies might have been, disproportionate not.
Full disclosure. I believe that in this matter, it is easy to argue that most of the applicants, by coming forward, in fact rendered themselves liable to prosecution, not to release from a conviction and they came forward and confidently and with candour, disclosed many matters which are very painful for most to recount and it was with precise and particular detail and there was no avoidance of awkward or difficult situations.
In the circumstances, it is my submission that as the requirements of the Act have been satisfied, certainly the first six applicants are entitled to the amnesty for and there I look at the summary: The murder of Whisky Lulu Louw. In that case there was no abduction. Then in relation to the second incident, there I believe the acts for which amnesty should be sought are arson, malicious damage to property and attempted murder. The third one and that is the killing of Mr Masebuko, there I believe it's simple murder. The fourth, there again there was no abduction or kidnapping, so its straightforward murder, as with the fifth and then with relation to the sixth, there the victim survived, so it's attempted murder.
Now Mr Maringa's situation needs particular consideration. On the evidence presented today, even though there is no proof that an application was received in Cape Town, the overwhelming probability of the evidence heard is that indeed one was received and that is was received timeously and in proper form. The only question ironically is the attestation of the oath.
When I led the witness in this regard, I decided that it was appropriate to argue that even if the Commissioner did not attest the oath properly and in the manner prescribed by the legislation, it should not be held as a fatal error in the application and should be condoned. The applicant was in prison, he was assisted by a non-legally trained comrade and they did all they could with their non-legal minds to comply with the Act and to penalise the applicant, the seventh applicant, I believe would be to perpetrate and injustice.
My submission in that regard is that his evidence should in the circumstances be treated as if there is a proper application before this Committee. No further evidence or investigations is needed and in fact will contribute nothing. I would point out that if the investigations in the Cape Town office reveal that they can find nothing, it establishes nothing to negate that an application was made timeously and my submission is, and my request to the Committee is that it find that there is a proper application for it.
I'm aware that that finding in relation to the Umtata 1990 event, has consequences because it would have the consequence of requiring that amnesty application to be heard, but in my submission that would achieve the purpose and the intent of the Act, not defeat it. The man, on the face of it, in relation to the 1990 event, certainly it has not been established, but prima facie, committed a crime with the required political motivation and is entitled to have an amnesty application heard by a Committee and that consequence is not one which I think should persuade the Committee not to allow the Standerton sequence of events to be treated as properly proved and established and to make a decision. I leave it in the hands of the Committee.
CHAIRPERSON: Thank you. Mr Nyawuza.
MR NYAWUZA IN ARGUMENT: Thank you Chairperson. Since we mentioned that the application of the applicants is not opposed in any way, I would wish to add that in relation to the signature on Mr Maringa's alleged amnesty application form, the Committee will realise from the testimony that has been led that the applicants before the Committee are very unsophisticated people, even their struggle was not one with hand grenades, bombs and AK47's. That should be noted and even in the application forms, they didn't have the opportunity of the application forms being filled by the Priscilla Janas or the Paula MacBrides, they did everything on their own, so I would add on my Learned Colleagues submission that the "unsophistication" of their struggle should be taken into cognisance when Mr Maringa's application for amnesty for today's deeds, is taken into cognisance. Thank you.
CHAIRPERSON: Thank you Mr Nyawuza. Ms Mtanga.
MS MTANGA: Chairperson, I have no submissions to make.
NO ARGUMENT BY MS MTANGA
CHAIRPERSON: Thank you. Anything further that you might wish to add? I know it's a dangerous invitation, Mr Richard.
MR RICHARD: ...(indistinct) to rest.
CHAIRPERSON: Yes. Well thank you very much. That concludes the hearing of this matter. There are obviously matters that we will have to look into further and to consider before we are in a position to prepare a decision in this matter, but even so, we want to give the indication that we always give, that in spite of all these drawbacks and in spite of the pressures that are brought to bear on the Committee we do our best to decide these matters as soon as circumstances permit. This matter will be not exception, so we will have to, in the circumstances, reserve the decision in the matter and we will then notify the parties with an interest as to the outcome of the application. So the decision will be reserved.
Mr Richard we thank you for your assistance and Mr Nyawuza for your assistance as well and of course Ms Mtanga. I need say no more. We appreciate it.
That takes care of the role for today, I hope.
MS MTANGA: Yes, Chairperson, that's the case.
CHAIRPERSON: Are you asking that we adjourn at this stage? Very well. Tomorrow is Friday and we have some matters that stood over until tomorrow from earlier in the week, so I'm going to adjourn the proceedings, Ms Mtanga, until 9 o'clock tomorrow morning in the hope that we will be able to complete our matters at a decent hour tomorrow. So we'll adjourn and reconvene at 9 o'clock tomorrow morning and you're excused. Thank you.
COMMITTEE ADJOURNS
