MR RICHARD: May Mr Skosana be sworn in?
CHAIRPERSON: Yes. Mr Skosana, just remain standing. You are Charles Michael Skosana, is that correct?
MR SKOSANA: Yes, that is correct.
CHARLES MICHAEL SKOSANA: (sworn states)
CHAIRPERSON: Thank you. You may sit down. Yes, Mr Richard?
EXAMINATION BY MR RICHARD: Mr Skosana, in and during the end of 1990 and the early part of 1991, were you affiliated to any particular political party or organisation?
MR SKOSANA: Yes, I was a supporter of a political organisation.
MR RICHARD: If so, which one?
MR SKOSANA: The ANC.
MR RICHARD: Were you a member or a supporter?
MR SKOSANA: A supporter.
MR SIBANYONI: Can I just suggest, maybe he brings the microphone a little bit closer to him. Thank you.
MR RICHARD: How did you participate in the activities of the ANC, what did you do to show your support?
MR SKOSANA: I was following the ANC because I used to attend rallies and meetings and what was said in those meetings, I used to follow that. That is all.
MR RICHARD: Now were you also born and educated and reared at Pieterskraal?
MR SKOSANA: Yes.
MR RICHARD: You have heard the evidence of the previous applicants about where and what is Pieterskraal, and do you confirm what they are saying?
MR SKOSANA: Yes.
MR RICHARD: You also heard the evidence of the previous applicants, concerning what is a moloi, ngaka, a sangoma, do you confirm what they say?
MR SKOSANA: Yes.
MR RICHARD: You personally, do you believe in witchcraft?
MR SKOSANA: On those days, I used to believe that there is witchcraft.
MR RICHARD: Now I have asked many questions about what the ANC Youth at the time thought should happen to impimpi's and moloi's. At that time, is that what you thought, the same as your previous applicants?
MR SKOSANA: Informers and witches were the targets of being burnt.
MR RICHARD: Why were they to be burnt?
MR SKOSANA: Because they were not the people accepted in the community. They were dividing the community.
MR RICHARD: When did you personally first become aware of Emma Mtsweni and the fact that she was talking of witchcraft?
MR SKOSANA: I heard for the first time in the last meeting.
MR RICHARD: When you say the last meeting, which meeting was that? Where was that meeting?
MR SKOSANA: The meeting was in a school.
MR RICHARD: What stage of that meeting did you join the meeting?
MR SKOSANA: Towards the end because I was from work.
MR RICHARD: At what time of the day was that?
MR SKOSANA: At about six.
MR RICHARD: Now from whom did you - when you arrived at the meeting, what did you do to find out what was happening?
MR SKOSANA: When I arrived, it was the time when the cars were on their way to fetch the deceased from her home.
MR RICHARD: Did you go with the cars to fetch the deceased?
MR SKOSANA: No, I didn't, I was left in the school.
MR RICHARD: Where did you go next?
MR SKOSANA: We waited for them until they came back, where they went to fetch the deceased.
MR RICHARD: While you were waiting, what did you learn, what was happening, why did they need to fetch Emma Mtsweni?
MR SKOSANA: When they left for the deceased's home, they didn't come back to the school, they went to Vaalbank and when they came back to the school, that is when they were with her.
MR RICHARD: While you were waiting at the school, did you talk to people?
MR SKOSANA: There were no talks, but there were singing and chanting.
MR RICHARD: What was the singing and chanting?
MR SKOSANA: They were singing about Thambo.
MR RICHARD: Did they sing about impimpi's and moloi's and witches?
MR SKOSANA: When they came back from Vaalbank, that is when they started singing about impimpi's and witches.
MR RICHARD: When they came back from Vaalbank, for how long were you still at the school before you went somewhere else?
MR SKOSANA: We stayed there until at about eight o'clock.
MR RICHARD: They came back from Vaalbank and then you all left as you have heard, for the mountain. From the time they came back from Vaalbank to the time you left for the mountain, how much time passed, was it one hour, five minutes, 15, 20 minutes, approximately?
MR SKOSANA: When they came back, they stopped at the gate and they just said they cannot discuss this matter in the school, because they had passed Police stations, therefore we should go to the mountain.
MR RICHARD: Now, did you go to the mountain?
MR SKOSANA: Yes, I did.
MR RICHARD: Why did you go to the mountain?
MR SKOSANA: I had to go together with the comrades.
MR RICHARD: Why did you have to go?
MR SKOSANA: I was also part of the comrades.
MR RICHARD: Now, do you know why they were taking Emma to the mountain?
MR SKOSANA: Emma was questioned about witchcraft.
MR RICHARD: How did you go to the mountain?
MR SKOSANA: We were following the cars behind.
MR RICHARD: Now at the mountain,w hat did you see happening?
MR SKOSANA: She was taken out of the car, July took a five litre container and gave it to Victor.
MR RICHARD: Sorry, who took a five litre container?
MR SKOSANA: July.
MR RICHARD: July? Thank you. What did Victor do with that container?
MR SKOSANA: He took Emma into a certain bush and that is when we all followed.
MR SIBANYONI: Maybe if you can explain what you mean by (indistinct), what structure is that one?
MR SKOSANA: It is a forest, a bush like place.
MR SIBANYONI: Maybe let me just finish what I wanted to ask.
MR RICHARD: Sorry.
MR SIBANYONI: We have never heard from these other applicants, was she, that is Emma, was she walking on her own, was she maybe fastened, what was the position with her?
MR SKOSANA: As she was alighting from the car, she wasn't fastened, she had her blanket in her arm and Victor took her and pushed her inside the forest.
MR SIBANYONI: What was her physical condition, was she too old or was she able just to walk normally?
MR SKOSANA: She wasn't an elderly, but she was aged, even though she wasn't that much old, I can approximate to 50 years.
MR SIBANYONI: Thank you Mr Richard. Thank you Mr Chairperson.
MR RICHARD: Did she go with the comrades voluntarily?
MR SKOSANA: I don't think she came willingly because as she was questioned in that forest as to whether she had done this, she said yes, but she wasn't the only one, there was someone also involved, his name is Nkabinde Mahlangu.
MR RICHARD: Did you, were you near when she was questioned, could you hear what was happening?
MR SKOSANA: Yes, I was closer because I wanted to listen and find out if the allegations were true.
MR RICHARD: What did you hear?
MR SKOSANA: She answered and the comrades said Mahlangu was also supposed to be fetched in order for him to be questioned, because the allegations were that she had got the muti from Mahlangu.
MR RICHARD: Thank you. What happened when she said what she said, what happened next?
MR SKOSANA: July had already gone back and also Mahlangu's son had left with a group of comrades to fetch his father.
MR RICHARD: What happened to Emma?
MR SKOSANA: At that time, a petrol was being poured over her.
MR RICHARD: Who was pouring the petrol?
MR SKOSANA: Victor.
MR RICHARD: Anyone else?
MR SKOSANA: Richard Skosana.
MR RICHARD: Anyone else?
MR SKOSANA: Janya.
MR RICHARD: After they had poured the petrol, what happened next?
MR SKOSANA: We heard the roaring of cars and we also saw lights and Speelman was still busy pouring the petrol and Jan asked me and said "Charles, don't you have a match" and I said "yes, I do have", and then he said light, for me to light the body, so I did that.
MR RICHARD: So you lit the match that set her on fire?
MR SKOSANA: Yes, I did.
MR RICHARD: Now, at page 36 of the bundle, paragraph 9(4) you say in reply to the question "nature and particulars of the act for which you apply for amnesty"
"... the comrades were in charge of the area at that time and they accused the deceased of killing the parents of their fellow comrade."
Whose parents did they accuse her of killing?
MR SKOSANA: July Mtsweni and Speelman Mtsweni's parents.
MR RICHARD: Now lower down you say
"... the deceased and the family were the supporters of Mbokodo which was an opponent of the UDF".
What is Mbokodo?
MR SKOSANA: Yes, it was so. She was an enemy of the comrades because they were killing comrades and we were scared that we were going to die one by one.
MR RICHARD: What does the word Mbokodo mean?
MR SKOSANA: Mbokodo is a person like an informer.
CHAIRPERSON: Just read the previous paragraph as well before you go that that one, you say that this was during the violence in the area that was opposing the previous government and Mbokodo, right? What was Mbokodo, was it an organisation?
MR SKOSANA: Yes, it was an organisation that was fighting comrades.
MR RICHARD: Who ran this organisation?
MR SKOSANA: Mbokodo was run by businessmen and they were also working with whites who owned companies and also there were informers among the Mbokodo informing on different people.
MR RICHARD: How did you know that she was a member of this organisation?
MR SKOSANA: I know her that way. I am saying that because members of the Mbokodo used to go to her house and they were doing this during the night, they were never there during the day.
MR RICHARD: I think as with the previous case, I will ask the witness to read paragraphs 10(a) and 10(b). Are you able to read?
CHAIRPERSON: Has he written it? Just ask him, just lay the basis.
MR RICHARD: Sorry, did you write what I am saying here in paragraphs 10(a) and 10(b), is that your handwriting?
MR SKOSANA: Somebody helped me.
MR RICHARD: Can you read what is written there or shall I read it to you?
MR SKOSANA: Would you please read it for me.
MR RICHARD: Thank you. There is a question which asks "please state the political objective sought to be achieved", your answer there was
"... law and order was achieved. People should know that the killing of others by means of witchcraft, would not be tolerated. More specifically when they killed the next-of-kin of the comrades, this affects the soldiers of the liberation struggle."
And then the next paragraph asks the question "your justification for regarding such acts, omissions or offences as associated with a political objective?"
Is the Translator in step with me?
INTERPRETER: Yes.
MR RICHARD: Your answer
"... any person affecting the family of a comrade would make himself/herself potentially target of the comrade. The family whose children have dedicated themselves, the family whose are members of the UDF, who were fighting for the struggle are always protected by UDF. No matter who is touching them, we had a slogan that says an injury to one is an injury to all. Therefore the comrade took a decision after the death of my parents, to avenge their death. I was arrested before the deceased was killed. The Police arrested me because of my political activities. The leadership of the region took the family's decision at a meeting at the Egukhanyeni Primary School, therefore I request help, forgiveness."
Do you remember that being written?
MR SKOSANA: Yes, I do remember.
MR RICHARD: The person who helped you to write that, was that a lawyer or if not a lawyer, who was the person who helped you?
MR SKOSANA: It was a lawyer.
MR RICHARD: And where did the lawyer come to see you?
MR SKOSANA: I think he was from the Minister of Justice.
MR RICHARD: Were you in jail at the time? Do you remember his or her name?
MR SKOSANA: I think I do remember his name, his last name is Mashishi, I don't remember his first name.
MR RICHARD: Tell me, did he explain the meanings of the questions before you spoke?
MR SKOSANA: Yes, he was explaining to me.
MR RICHARD: Did he suggest what answers you should give or did you just tell him what your answer was after you understood the question?
MR SKOSANA: I was telling him and then he was writing down and later he was reading it to me.
MR RICHARD: So are you happy that what I have read, is what you said and he wrote down?
MR SKOSANA: Yes, it is.
MR RICHARD: Now, my next question then is very straight forward and simple, how do you think that the killing of Emma Mtsweni assisted the ANC struggle for liberation of South Africa?
MR SKOSANA: Emma's death showed that the Youth can manage to develop the country and also the fact that the youth can educate themselves because they were not concentrating on school, they were concentrating on crimes and stealing goods from other people.
MR RICHARD: Now, there on the side of the mountain, did you see any ANC leaders or UDF leaders?
MR SKOSANA: No, there were no UDF members, there were ANC members.
MR RICHARD: Did any of them give any instructions?
MR SKOSANA: What they said was that a witch is someone to be burnt.
MR RICHARD: What was your reaction to that instruction, did you agree with it or disagree with it?
MR SKOSANA: I agreed with that.
MR RICHARD: Who were those leaders who gave those instructions?
MR SKOSANA: Skosh and others, and I couldn't see others properly, but these ones were close by.
ADV SANDI: Sorry, just whilst you are mentioning names, what about Mashiane whose name you mentioned at page 46?
MR SKOSANA: Mashiane is a chief in Pieterskraal.
MR RICHARD: Where was Mashiane that day, that night?
MR SKOSANA: When this happened, it was after a meeting which I arrived just after it had finished.
ADV SANDI: Sorry Mr Richard, are you going to ask him a question on something else?
MR RICHARD: Go ahead please.
ADV SANDI: Okay. Mashiane, was he a member of the ANC because that is what you say at page 46?
MR SKOSANA: Mashiane was working hand in hand with the chief Mabhoko. He knew about the meeting.
ADV SANDI: Yes, but is it correct that he gave an order as an ANC leader?
MR SKOSANA: The saying that a witch is someone to be killed, an impimpi to be killed ...
MR RICHARD: May I ask you this question? In the bundle there are a number of applications for amnesty, the first one which ends at page 37 was signed by you in Pretoria on the 21st of November 1996 and then later on, at pages 38 to 41 we have another one, signed on the 6th of May 1996 and then on page 42 through to 48, we have another one signed on the 9th of October 1996.
Why did you complete so many application forms?
MR SKOSANA: I received forms, they were in my name.
MR RICHARD: Who brought those forms to you?
MR SKOSANA: They were posted to the prison.
MR RICHARD: You take the one, November 1996, did you tell Mr Mashishi that you had completed other forms?
MR SKOSANA: Yes, I did. I explained to him that I had already filled other application forms and I had already sent them.
MR RICHARD: How did Mr Mashishi come to see you, did you ask him to come or did he come without any arrangements, did somebody send him to you?
MR SKOSANA: I telephoned him to come and help me in prison and I told him I had a problem and he came to see me. He asked me if I had filled in the indemnity forms and I told him "yes", and he told me he was going to bring other forms because it may happen that the first one which I filled, was not, never reached the destination.
MR RICHARD: Did Mr Mashishi say he should get the other forms that you had filled in and have a look at them before completing any more forms or did he just proceed to complete that one dated November 1996?
MR SKOSANA: I had already sent other forms and I explained to him and he said to me probably they were not received, it is better for me to fill in other forms.
MR RICHARD: Did you ask him to explain why certain questions were asked and did he explain the meaning of the questions, why it was being asked?
CHAIRPERSON: Mr Richard, where is this taking us to?
MR RICHARD: Pardon?
CHAIRPERSON: Where is this taking us to?
MR RICHARD: My last question is which form do you stand by, a contradiction?
CHAIRPERSON: Well, he hasn't completed any of these things. You can see from his signature he can hardly write. Mr Skosana, did you complete any of these forms in your own handwriting, did you write any form, or did other people always help to you complete these things?
MR SKOSANA: They were helping me.
CHAIRPERSON: So he hasn't completed any of these forms, so where does it take us?
MR RICHARD: One more question. So you were happy with the last form you completed with Mr Mashishi and that is your application?
MR SKOSANA: Yes.
MR RICHARD: Now in Mashishi's form there is a question which says "did you benefit in any way" and your answer was
"... yes, our aim has been done, therefore we benefitted."
Did that mean that you got any monetary benefit or financial benefit or privileges or did you just win the struggle?
MR SKOSANA: I benefitted in the struggle.
MR RICHARD: I believe I have canvassed this in shorthand and if I continue, I am asking him to repeat evidence that is incorporated by referring to the others. I have no further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Yes, thank you Mr Richard. Mr Mokoena, do you have any questions?
MR MOKOENA: No questions.
NO CROSS-EXAMINATION BY MR MOKOENA
CHAIRPERSON: Thank you Mr Mokoena. Ms Mtanga?
CROSS-EXAMINATION BY MS MTANGA: I have one question Chairperson.
CHAIRPERSON: Yes?
MS MTANGA: Mr Skosana, will I be correct to say the reason that you link the death of Emma Mtsweni to the ANC's political struggle, it is because - I am saying will I be correct to say that the reason that you link the death of Emma Mtsweni to the ANC's political struggle is because the deaths of the parents of the comrades affected the welfare of the comrades?
MR SKOSANA: Yes.
MS MTANGA: Is there another reason apart from this, that you would say was the reason why you killed, why she was killed by yourself and other comrades?
MR SKOSANA: Yes, we killed her because she wasn't supposed to do that, because an injury to one is an injury to all. This affected us, it affected the people who were not entirely involved.
MS MTANGA: Tell me what would be the situation where a person, let's assume in this case, Emma had beaten up the parents of July and Ernest Mtsweni, would the comrades have been involved in this instance to kill her?
MR SKOSANA: If you have beaten someone, there is a difference in beating and killing.
MS MTANGA: What would happen if she had beaten them to death?
MR SKOSANA: What she did was evil because she had killed and she killed two people, we killed her because we were also preventing her from killing us.
MS MTANGA: If she had beaten them to death, Mr Skosana, what would you and the organisation have done about her?
MR SKOSANA: We were going to sit down with her because we were going to understand that an accident doesn't always happen and an accident is something that happens to everyone. One cannot run away from that. I may just take a walk and meet an accident.
MS MTANGA: I am not saying they would have had an accident, I am saying she would have beaten them up to death.
CHAIRPERSON: Assume she wasn't aged, she was a very strong woman and she would just beat these two people to death, just imagine that.
MR SKOSANA: It means she was also going to be beaten to death.
MS MTANGA: Can I conclude for you the reason for you to kill her in this situation is because she would have caused the death of your fellow comrades, and therefore affected your fellow comrades' welfare?
MR SKOSANA: Yes.
MS MTANGA: I have no further questions, Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you Ms Mtanga. The fact that she was apparently associated with Mbokodo, did that play any role in the action that was taken against her?
MR SKOSANA: Her witchcraft was the reason she was killed and also that she was part of the organisation which we opposed. In meetings we were told that we were opposing this other organisation.
CHAIRPERSON: Is that Mbokodo?
MR SKOSANA: Yes.
CHAIRPERSON: Thank you. Any other questions from the Panel?
ADV SANDI: Thank you Mr Chairman. Tell me, at the mountain was she confronted about the fact that she was a supporter of Mbokodo?
MR SKOSANA: No, she was not questioned anything about her association with Mbokodo, because at the mountain it was out of control.
ADV SANDI: When did you become aware for the first time that she was a member of Mbokodo?
MR SKOSANA: Members of Mbokodo used to go to her home at night, they never went there during the day.
ADV SANDI: I suppose from what you are saying, you must have seen these members of Mbokodo coming to her house at night, when was that?
MR SKOSANA: I used to see them all the time, and their cars, parked outside her yard.
ADV SANDI: Who were these people from Mbokodo who were coming to her house at night?
MR SKOSANA: They were people from Ndebele, people who came after the violence in 1996.
ADV SANDI: What did you do with that information when you became aware that she had this association with members of Mbokodo?
MR SKOSANA: We watched her and the fact that her children never attended any of the meetings and we were just watching that her members do not kill our members.
ADV SANDI: You say you were watching her, who was that, who are you referring to when you say "we were watching her", yourself and who?
MR SKOSANA: I alone.
ADV SANDI: Was it just yourself?
MR SKOSANA: I raised this in a meeting and it was said that one of her children should join our organisation so that we know what is going on within the Mbokodo.
ADV SANDI: You say you raised it at a meeting, was anyone of your co-applicants present at that meeting, where you raised this thing?
MR SKOSANA: No.
ADV SANDI: Her association as you said, with Mbokodo, was it one of the reasons why she was killed?
MR SKOSANA: No, that is not. I knew this and so she was just my enemy because of this fact because I hated Mbokodo members. Whenever you come across them, they would chase you at night.
ADV SANDI: Yes, but tell me at that time would it not, if a person associated with such a body, the Mbokodo, which was opposed to the liberation struggle, wouldn't that have been something everyone would know in the community?
MR SKOSANA: The community knew about the fact that she had associated herself with Mbokodo, but the community didn't know what time of the day the Mbokodo members were coming to her house, but one would see Mbokodo's cars parked outside her house and if you were walking nearby, you would be chased away, not knowing who the people were who were chasing you.
ADV SANDI: I don't know, if I follow the evidence correctly here, you seem to be the only one who claims that the deceased had an association with the Mbokodo? Why would the other applicants not mention such a thing, that the deceased had this association with the Mbokodo which was seen as a political enemy in that struggle?
MR SKOSANA: I was her neighbour.
ADV SANDI: If the deceased had not made this confession that she was a witch, would she still have been killed?
MR SKOSANA: No, she wasn't.
ADV SANDI: She was killed only because of the so-called confession that she made that she was a witch, is that what you are saying?
MR SKOSANA: Yes.
ADV SANDI: Mr Mahlangu whom she implicated, was that person known to you?
MR SKOSANA: I first heard of Mahlangu Nkabinde and I couldn't understand why one person had two surnames. I heard it for the first time that he was Mahlangu Nkabinde.
ADV SANDI: What did you know about the person concerned,t his Mahlangu? Did you know if he was a person of any political association? Did you know if he had any skill or expertise to use muti?
MR SKOSANA: No, the first time I heard about Mahlangu is when she made the confession that Mahlangu gave her the muti to kill the parents of July and Speelman.
ADV SANDI: Thank you very much. Thank you Mr Chairman. No further questions.
MR SIBANYONI: Thank you. Mr Skosana, I see on page 35 you say you were a supporter of the Intandwe Isizwe Party which was under the ANC. Was Intandwe Isizwe Party active in your area?
MR SKOSANA: Yes, it was present.
MR SIBANYONI: On page 36, on paragraph, sub-paragraph 4, the second paragraph thereof you said
"... this was during the violence in the area that was opposing the previous government and Mbokodo"
was the conflict between Intandwe Isizwe party on the one hand and Mbokodo on the other hand?
MR SKOSANA: There were conflicts between Mbokodo and Intandwe Isizwe and the ANC.
MR SIBANYONI: And then on page 38 you say you were a member of the Pieterskraal Civic Organisation which was an affiliate of SANCO, is that the information you gave to the person who was assisting you to complete the form?
MR SKOSANA: Yes.
MR SIBANYONI: Then on page 40 you say
"... the Civic Organisation instructed that the area of Pieterskraal had a problem of witchcraft and which had to be eradicated."
At what stage did this Civic Organisation take such a decision, when was it?
MR SKOSANA: It started in 1988, that is when they started resolving the witchcraft problem, they instructed that the witches should leave the area.
MR SIBANYONI: On page 37 you mention Masoldier, who was Masoldier, what were his full names? Page 37, paragraph 11(a)?
MR SKOSANA: Masoldier is one of the accused in this case, but he has then deceased.
MR SIBANYONI: Who were the leaders of the Civic Organisation?
INTERPRETER: Would you please repeat the question?
MR SIBANYONI: Who were the leaders of the Civic Organisation in your area?
MR SKOSANA: Emma Sibego, the one that I know.
MR SIBANYONI: Thank you Mr Chairperson, no further questions.
CHAIRPERSON: Thank you. Mr Richard, any re-examination?
MR RICHARD: No re-examination.
NO RE-EXAMINATION BY MR RICHARD
CHAIRPERSON: Thank you. Mr Skosana, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Is that the case for the applicants?
MR RICHARD: That is the case for the applicants.
CHAIRPERSON: Mr Mokoena, any witnesses?
MR MOKOENA: No witnesses Chairperson.
CHAIRPERSON: Thank you. Ms Mtanga?
MS MTANGA: No witnesses Chairperson.
CHAIRPERSON: Thank you. Mr Richard, have you got any submissions on the merits of these applications?
MR RICHARD: I will be brief.
CHAIRPERSON: Thank you.
MR RICHARD IN ARGUMENT: I start by referring to Section 20 of the Act which compels an Amnesty Tribunal to grant amnesty if three things are satisfied. The application complies with the requirements of this Act; the third one the applicants have made a full disclosure. In this matter I think there is no dispute that both those aspects have been satisfied.
The second one, (b), ought to be read with paragraph, sorry Section 2(g) of the same Section which says -
"... any person who associated himself or herself with any act or admission committed for the purposes referred to in paragraphs (a), (b), (c), (d) and (e) and (f) ..."
When we look at the killing of Emma Mtsweni, I believe it has been established that on the basis that I have argued in the previous matter, she was bona fide and honestly perceived by the applicants to be an opponent of the ANC and that her killing would achieve the political objective of furthering the ANC's objectives and ideals.
We have five witnesses who gave coherent evidence to the fact that she was identified as a witch or moloi, we have it before us that if a person is pointed out to be a witch or a moloi, there is very little that that individual can do about it. The perception then by the applicants was that for that reason and that reason alone, she was seen to be the equivalent of an impimpi and I could argue further as I did last night, a Security Force personnel, an apartheid counsellor and therefore within the framework she became a legitimate objective of an attack as contemplated by this Act.
For those reasons I believe and submit that subsection (1)(b) of Section 20 has also been complied with. The only potential exception to my argument might be the first person, the first applicant to give evidence today.
There he has said that whether or not the youth of the area, the comrades had become involved, he might have done an act. However, I believe his evidence needs to be seen in the context of that particular time. As the last applicant has said, there was perceived to be a witchcraft problem in that area which is corroborated by the various reports that we had reference to. It was perceived that the killing of witches would achieve both the subjective and political objective and when I refer to subsection (g) of subsection 20(2), I have no difficulty in making the submission that the first applicant was a person who associated himself with the acts which fall within the definition of (2)(a) and as read with 20(1)(b).
I can argue at length, but I believe that in view of the time, I should make the offer that I made yesterday, if the Committee would like it, I would prepare written Heads with pleasure.
CHAIRPERSON: I think you should just have your say now. Your clients are in custody, we don't have the luxury of Heads or argument in these matters any more, unless it is really compelling.
MR RICHARD: I believe that the argument that I have outlined is in summary that the killing of Emma Mtsweni was an act committed with a political purpose, by persons who associated themselves with the aims and objectives of the ANC at the time, they have made a full disclosure of all relevant facts and they have complied with the requirements of the Act of Parliament and in the circumstances, are entitled to an amnesty for the murder of Emma Mtsweni.
CHAIRPERSON: Yes, thank you. Mr Mokoena?
MR MOKOENA: No submission Chairperson.
CHAIRPERSON: Thank you. Ms Mtanga?
MS MTANGA IN ARGUMENT: Chairperson, I will be very brief. It is my submission that the killing of Emma Mtsweni arose from a family dispute. This can be referred from the evidence, or the applications of the three Mtsweni's. I will refer the Committee to page 2 of the bundle, that is the application of July Mtsweni, paragraph 9, subsection (a)(iv), he states there
"... this was a family discussion and it was upon my grandma. I left the meeting still on progress and when I reached home, I was told that the deceased had been burnt."
If this is read together with the applications of Ernest and Phillip, on paragraph 9(a)(iv) of Ernest's application, page 13. Phillip also utters a similar view, that it was a family matter.
CHAIRPERSON: Yes, it is common cause that it started off as a family matter, but it didn't end as a family matter.
MS MTANGA: What appears from their evidence Chairperson, is that from the onset the fact that Emma was accused of bewitching their parents, politics were never involved in that situation, it was a family debacle, and it only, they lost control of the situation only when the comrades got involved.
CHAIRPERSON: Well, this thing only really started developing broader when the question of witchcraft surfaced and eventually when she confessed, then it was the end of the road.
MS MTANGA: Yes Chairperson, but the question is the family, the Mtsweni family, the witchcraft didn't arise when the comrades arrived. At the initial family meeting, they were discussing the witchcraft issue.
CHAIRPERSON: Yes and they didn't believe that, they never thought that she would be involved in that, and from the perspective of the family members, that was really only confirmed when she admitted.
MS MTANGA: That is not so Chairperson. When July Mtsweni testified, he indicated that at the time they went to fetch Emma from Vaalbank ...
CHAIRPERSON: He was suspicious.
MS MTANGA: He was already angry and suspicious that Emma was a witch.
CHAIRPERSON: Because she had apparently run away, and he wouldn't know why would she be acting like that?
MS MTANGA: Mr Chairperson, that is so.
CHAIRPERSON: But the confirmation came out of her mouth eventually.
MS MTANGA: But then the argument will also follow that there is no evidence before the Committee that will, or the basis for the applicants to link the killing of their parents by Mtsweni, to the political struggle of the ANC.
CHAIRPERSON: Well, she was killed by the ANC Youth League eventually? They associate themselves with it?
MS MTANGA: Chairperson, it cannot be argued that all the offences committed by political organisations, will constitute political offences.
CHAIRPERSON: No, that is true.
MS MTANGA: Yes, and this is the situation here.
CHAIRPERSON: That is true. No, we must look at the circumstances, but the fact of the matter is as I have said to you earlier, the way I understand this, it started off as a family matter, understandably so, because it concerned mother and father, and then eventually it grew into an issue which the ANC Youth League took an interest in because now it was no longer a family matter, it is matter that concerned the ANC, because here now was an indication that this person could have been one of the people that fell into the category of opponents? That is why it grew into and eventually landed up as an ANC action where these family members were not even present at the scene? She was attacked when they were back to deliver the van to the house.
MS MTANGA: Chairperson, that may be so, but the fact that it was taken over by the ANC Youth League, doesn't make it a political offence.
CHAIRPERSON: Yes, no, no, I agree with you, we must look at the circumstances.
MS MTANGA: That is so Chairperson.
CHAIRPERSON: But it doesn't also not make it a political offence because it is a factor that comes into it, the fact that the attack was eventually taken over by the ANC, as you say quite correctly doesn't automatically mean it is a political offence, it could be a criminal matter, it could be a personal matter, they could have a personal grudge against this old lady. But by the same token it doesn't make it not a political offence, so we must look at it.
MS MTANGA: Yes, I agree with you Chairperson, but I would like to submit that perhaps the Committee should be careful in this witchcraft cases, especially in the areas of Mpumalanga and Northern Province.
CHAIRPERSON: Yes.
MS MTANGA: Where witches were killed broadly by the Youth League or by the ANC as an organisation, and my argument is that should the Committee accept a situation where a person is just, because that person is killed by the ANC Youth League for being alleged to be a witch, then that should be, it can be perceived as a political offence, it could broaden or it will open the floodgates to a lot of cases which took place in this area and which had nothing to do with politics at all.
CHAIRPERSON: Yes, no, I appreciate that, I appreciate that submission, that is why I said to you that that fact is not a decisive fact, we have to look at the case still. But it is just hard to imagine why these people went about and killed the deceased, it doesn't look to have been any personal grudge or any bad blood, or anything personal vis-a-vis the deceased?
MS MTANGA: Chairperson, I would say the killing of Emma Mtsweni is in line with the material that we have received from the Commission of Enquiry and the hearing in the Mavhunga matter where it is said that at some point in the history of this province, the youth took over the killing of witches.
CHAIRPERSON: The question is why? They say the reason for that is because these people were impeding the development of their organisation and by the same token, was obstructing the political struggle that they were engaged in.
That is why I say to you, if you look at that, you have 200 people or 300 people there, the family members have left the scene, there is no indication that there was bad blood or a grudge or anything, vis-a-vis the deceased, and they are saying to us, that is the only evidence that is before us, that it was an action undertaken by the ANC Youth League where there leadership was present on the scene, one of the leaders accompanied the group that went to fetch the deceased where she was with her brother and they killed her in a typical political style killing, with a necklace.
MS MTANGA: Chairperson, I would like to still argue that in this particular case where a person gets killed because she is a witch and she is alleged to affect the welfare of the youth in the area, the political link that is being created here, is very far fetched.
ADV SANDI: Sorry if I understand you correctly, are you saying that these ANC activists who participated in this incident, were actually used to settle a private dispute?
MS MTANGA: Chairperson, I would agree with that.
CHAIRPERSON: And this was just a purely criminal act?
MS MTANGA: This was a purely criminal act.
CHAIRPERSON: It had nothing to do with politics?
MS MTANGA: Yes Chairperson, it had nothing to do with politics.
CHAIRPERSON: All of these people, 200 to 300 people were somehow persuaded to indulge in a totally criminal act against an innocent person, that they had no personal reason to harm?
MS MTANGA: Chairperson, I find it difficult to agree that because 200 and 300 people mobilised themselves and attacked a person, then because of the numbers involved, we should sort of infer that because they were organised, then it must have been a political motive. There are many instances in these areas where people are killed and they are being killed by a group of people, and it shouldn't be argued that because there was a mobilised crowd, then it was political.
CHAIRPERSON: Yes, it could have been a criminal gang, it could have been the Naughty Boys or whatever, but now we need material, we need evidence.
The evidence before us suggests that this was a politically motivated matter, it wasn't a criminal matter. If you are submitting that we must disregard that and we must actually find that these people are lying to us, that they were really a bunch of criminals who had gone to execute this lady for no reason, innocent victim ...
MS MTANGA: If the Committee is of the view that if an offence is carried out by, even if it was not initially in a political context, if by the fact that it is embraced by a political organisation, then it becomes political, then I have no, I have nothing else to say.
CHAIRPERSON: No, you must, the point that I am making is that if you submit that it is not political, it is criminal, then you must persuade us in some or other way. The obstacle that I am pointing out to you is that there is certain evidence placed in front of us, and nothing else.
MS MTANGA: Well Chairperson, I will agree with you on that, because the family is not here to contradict what is said, and maybe point out to some other reason why Mrs Emma Mtsweni was killed.
CHAIRPERSON: Yes. Of course it doesn't mean that because there is only one version before us, that we are forced to accept that version or accept it in its totality. We are entitled to reject a version that is put before us which doesn't persuade us and doesn't satisfy us, and that is why I am saying you've got to actually put something that is compelling, before us, so that if you want us to make the finding that you are arguing for.
MS MTANGA: Chairperson, it is difficult for me to do that because I don't have any material evidence that I can put before the Committee, except to argue that it is, it will be quite a dangerous thing for the Committee to accept the mere fact that the offence was embraced by a political organisation, then in the absence of any other evidence, then it qualifies as a politically motivated crime.
CHAIRPERSON: Yes, that is right, an uncritical acceptance just of that evidence, that is a failure of the duty that the Committee had.
MS MTANGA: Yes Chairperson.
CHAIRPERSON: We have to be satisfied and in order to be able to be satisfied, we have to apply our minds and be persuaded in some way that this is indeed a politically motivated and not just as you are submitting, just a random act of violence by a bunch of blood-thirsty youth who had nothing else to do on that night, but to attack the deceased? If so, then they are not entitled to amnesty.
MS MTANGA: That is so.
CHAIRPERSON: We have to bear that in mind, I am with you on that submission.
MR SIBANYONI: Is it perhaps your submission that in that area witches were not legitimate targets?
MS MTANGA: Chairperson, witches were legitimate targets by the youth, particularly the ANC Youth League at that time, that is the evidence that we have from the material that we have, and we have also heard from these applicants and the applicants that we had yesterday. However, I would like to refer the Committee to the argument of my learned friend in yesterday's matter where he said perhaps the Committee should make a distinction between a perception that is based on reasonable grounds in the logical sense and the perception that is based on the reasonable grounds in the cultural sense.
With that one will have to look for evidence that creates the basis for the perception that this person was a witch and her witchcraft affected the political organisation and this must have a basis in the cultural sense of the applicants.
CHAIRPERSON: Yes, I understand that, we have to be satisfied at the very least, subjectively, these people first of all held the belief, the applicants, or the people that lived in that area, society, and secondly that objectively looking at the case, there was some grounds for bona fide believing that they were acting against a political opponent, because that is the requirement of the Act. It must be an act bona fide in furtherance of a struggle against a political enemy. There must at least first be the subjective belief which satisfies us and secondly, that is not the end of the story because if it is so unreasonable on the objective facts of the case, then of course we are entitled to find that there was no bona fides in the particular instance. We have to look at both those two elements.
MS MTANGA: Chairperson, I would like to end my submission of this matter.
CHAIRPERSON: Thank you Ms Mtanga. You do raise issues of importance. Yes, Mr Richard?
MR RICHARD IN REPLY: My reply to my learned colleague is I must point out that the circumstances and context of this event was the struggle in 1990. It was a period when as I argued last night, make the country ungovernable, was the crime.
The deceased by her confession, however it was obtained, established in the minds of the crowd and that is certainly the third, fourth and fifth applicants, that she was associated with witchcraft.
We have argued the position of witches in the context of the time before. They were perceived to be the enemy of the struggle. My learned colleague then seems to create two categories - one is the Mtsweni family and that of the others. Without labouring or repeating my previous argument, subsection 20(2)(f) speaks of any person who associates him or herself with an act committed within the meaning of subsection 20(1)(b) as read with 20(1)(2)(a), (b), (c), (d), (e) and (f).
While it might well have been as has been pointed out at the initial stages of the transaction, that it was a family affair, as soon as the talk of witchery penetrated into the comrades' minds, it became a very public affair. Whether and I believe the only one who might be affected by my learned colleague's argument is the first applicant, July ...
CHAIRPERSON: Even that, I don't quite read subsection (g) as referring to a person in the position of the first applicant in these proceedings. That seems to my mind to refer to people who don't fall into any of the categories which are spelt out there, a supporter, member of a political organisation or a liberation movement or a member of the Security Forces, those categories that are sketched in the earlier subsections of (20). If, the way I understand subsection (g), if you have somebody who stands completely outside of those categories, he is not a supporter of any political organisation, he is not a member of any political organisation, he is not a member of the Security Forces, he is outside of the formal structures of the contending Forces in the political struggle, he stands completely outside of those categories, he can still quality for amnesty if he can show that he associated himself with an act committed by a member or a supporter of a political party organisation.
But that applicant, if I understand his evidence correctly says, he puts himself in category (a), he says I am a supporter of the ANC.
MR RICHARD: Correct.
CHAIRPERSON: So he is not outside of the category?
MR RICHARD: Correct Chairperson, but he did make the statement which I did allude to earlier that even if the comrades had not been involved, he might have done something.
CHAIRPERSON: Yes, it is just indicative of his subjective state of mind. It is indicative of his view that it was justified to act against the deceased.
MR RICHARD: And clearly on the evidence before us, even if that was one of his points, a person may have more than one intention in their mind at one time.
CHAIRPERSON: Isn't the determining factor that he did associate himself with the ...
MR RICHARD: That is my argument Chairperson.
CHAIRPERSON: And he expressly testified to that effect, he said "I wasn't there, I came back with the Police, but certainly I associate myself with what happened there".
MR RICHARD: With the political motive of the context and the time.
CHAIRPERSON: And I am a supporter of the ANC so I fall into category A and my association makes it a common purpose, it is a crime that I have committed and there it seems to me that the matter rests.
MR RICHARD: My second two points were the political nature of the offence, the evidence is overwhelming. It certainly cannot be said to be far fetched. Taking the various reports that we have available, plus the evidence of these applicants, taken in conjunction and the context of evidence in other matters, I don't see any reason to doubt or be suspicious or impute fabrication to these applicants that there was a political motive.
Witches as I have already argued, were perceived to be the opponents, and that was the subjective and bona fide belief. I don't want to re-argue other matters, so I am going to leave it there.
CHAIRPERSON: Yes, the point that Ms Mtanga quite rightly makes is that that is not really where the matter ends, because we must also be satisfied that the conduct is bona fide. So assume for example that the victim was a five year old girl, really totally harmless, then of course the objective looking at the facts in order to determine bona fides, of course will weigh more heavily against the applicant.
I think that is what she is referring to, that you have to actually go that second step as well, and you must look objectively and be satisfied that there were bona fides in these circumstances.
MR RICHARD: In this case we are not looking at a five year old girl.
CHAIRPERSON: Of course, of course.
MR RICHARD: We are looking at the age group of the typical witch.
CHAIRPERSON: Yes, I thought I will just illustrate the argument that Ms Mtanga raises, which to my mind is a proper approach to the exercise that we must engage in.
MR RICHARD: My answer is that on the test of bona fides, there was nothing to repugnant to logic and reason in this matter, so as to come to the conclusion that it is not bona fide, it is male fide.
CHAIRPERSON: Yes. Ms Mtanga argues that we are under duty not to uncritically just accept everything at face value, that we have to actually apply our minds.
MR RICHARD: That is a valid point.
CHAIRPERSON: I don't think there is a difference between you ...
MR RICHARD: No, that is a valid point. And I believe on a critical examination of this evidence, in as much as there is an onus on an applicant in an amnesty application, the evidence is before the Commission to satisfy itself quite properly and critically that there was bona fides in the act.
Again we are dealing with witchcraft, witchcraft is a subjective perception. I believe the evidence is overwhelming that the perception of these applicants was that a witch was an enemy of the liberation struggle and hard as it might be, ten years after the event in a different context in time, to believe what happened then, at that time in the context of the struggle, a belief was both honest and bona fide and that is what the perception that the applicants acted with. I rest. To take it further means re-arguing this in other cases.
CHAIRPERSON: Yes, we appreciate you not doing that Mr Richard. There are some other matters that we must still attend to.
MR RICHARD: That is why I tried to curtail.
CHAIRPERSON: Yes, thank you very much. That concludes the application. As you have gathered from the discussion here at the end, that it is a matter that will have to be considered, it is a matter in which a decision cannot be given immediately, but the Panel will still even given the constraints that we operate under normally, logistically, we will endeavour to formulate a decision as quickly as the circumstances permit and we will then notify the parties once that decision is available.
MR RICHARD: As the Committee pleases.
CHAIRPERSON: The decision is reserved. Thank you very much. These applicants can stand down at this stage, they would be excused. There is one more applicant, Mr Tladi, who is accommodated in Pretoria and we would like to finalise that matter so that the Correctional Services who have gone to great difficulty to get to the venue here, are able to be released finally, because they wouldn't have any other person to actually deal with, once Mr Tladi's case is finalised, so we would like to really deal with that one and hopefully complete it as well.
MR RICHARD: I believe we can deal with it and complete with it tonight, it is not a long matter, Chairperson. May I request the indulgence of a five minute adjournment?
CHAIRPERSON: Very well, we will stand down just briefly, just a few minutes, just to re-arrange. We will reconvene and deal with Mr Tladi's matter.
MR RICHARD: Thank you Chairperson.
COMMITTEE ADJOURNS
