Amnesty Hearings

CHAIRPERSON: Mr Sibeko, what is there remaining?

MR SIBEKO: The last application is that of Mr Zwayi, Mkhize Zwayi. It is on page 183, Lusaka B.

ADV STEENKAMP: Mr Chairman, if you can just bear with us for a second, they are just bringing the person up, thank you.

CHAIRPERSON: Mr Zwayi, can you hear?

MR ZWAYI: Yes, I can.

CHAIRPERSON: I want you to please stand and then give your full names for the record please.

MR ZWAYI: My name is Ndzikilelo Jackson Zwayi.

NDZIKILELO JACKSON ZWAYI: (sworn states)

CHAIRPERSON: Thank you. You may sit down please. Mr Sibeko?

EXAMINATION BY MR SIBEKO: Thank you Mr Chairman. Mr Zwayi, will I be correct to say you are presently serving a sentence at Leeukop prison?

MR ZWAYI: That is correct.

MR SIBEKO: How many years were you sentenced to prison for?

MR ZWAYI: I was sentenced to 20 years' imprisonment.

MR SIBEKO: In which year was the sentence passed?

MR ZWAYI: During 1995.

MR SIBEKO: Which court was the sentenced passed at?

MR ZWAYI: I appeared in the Johannesburg Supreme Court.

MR SIBEKO: Before your arrest and sentence, were you a member of the Self Defence Unit at your place of residence?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Where did you reside at the time?

MR ZWAYI: I was staying at Polla Park.

MR SIBEKO: When did you actually join the Self Defence Unit?

MR ZWAYI: From 1990.

MR SIBEKO: Who was your Commander?

MR ZWAYI: My Commander was Mqolombile.

MR SIBEKO: Is this Nondoda Mqolombile?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Were you ever involved in any incidents of violence in 1990?

MR ZWAYI: No, I wasn't involved during that time, there is no specific incident during that time.

ADV GCABASHE: Can I just check very quickly, I see in your application form on page 187, you mention Nondoda Mqolombile and Simon Ngwengwa, explain what capacity or what was the relationship with Simon Ngwengwa? We have heard him, he has been an applicant at these hearings.

MR ZWAYI: I think there has been a mistake. I was at some stage involved, I was involved in the taxi violence at some stage, I think that has got nothing to do with this particular incident.

ADV GCABASHE: Can you please just repeat the answer, I just want to know where Simon Ngwengwa fitted into the applicant's activities?

MR ZWAYI: Simon Ngwengwa is not directly involved with those particular incidents. He was just a community leader in Polla Park. He was a community leader, there is nothing that connects me to him.

ADV GCABASHE: Did he know you as an SDU member?

MR ZWAYI: Yes, I think he did.

ADV GCABASHE: Thank you.

MR SIBEKO: In your application on page 183, you say - in fact before we even touch on there, what is noteworthy in your application is that it was not oathed on this application on page 189 where it is supposed to be oathed. Will you confirm this to be your application?

MR ZWAYI: I don't understand what you are saying. What do you mean, at the time that I submitted the amnesty application, or what are you referring to, I don't understand you?

MR SIBEKO: If you can look at, this is your name, is that correct?

MR ZWAYI: Yes, that is so.

MR SIBEKO: And this is your signature, is that correct?

MR ZWAYI: Yes, that is correct. That is my signature.

MR SIBEKO: When looking at your application here, it is supposed to have been oathed, and it is not oathed, do you confirm that it is still your application?

MR ZWAYI: Yes, it is mine.

MR SIBEKO: On page 183, in question 7 you indicate that you were a member of the African National Congress, do you still confirm that?

MR ZWAYI: That is correct.

MR SIBEKO: And you were a member of the African National Congress from 1990, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: In your application again, the incident that you referred to, you said it occurred on or about the 18th of January 1994, do you mind taking us through the incident?

MR ZWAYI: The incident that I am talking about, I cannot go back and relate the history of this incident, because I am sure that the TRC knows everything that was happening during 1990.

I won't have to take the story back and lay a background, because I think people who testified before me, have done that. I am going to be specific, I am going to talk about my role in this whole incident.

It is well known that in 1990 the Zulu's attacked the Xhosa's, the Zulu speaking people attacked the Xhosa speaking people. The Xhosa speaking people were also staying in the hostels and they were attacked and some of them ran away.

They were even attacked in their shacks in the informal settlement and they ran away, that was in 1990.

After looking at this situation, we decided to protect ourselves. This went on and on and it became very difficult for us Xhosa speaking people, because we were victims. The Xhosa people were victims, being attacked by the Zulu's. It was very difficult for us to have a freedom of movement, even in the townships.

Even if you would be heard in the townships speaking in a Xhosa language, or even in the taxi's, you would be in trouble. The Zulu's would decide to kill every person who would be spotted or heard speaking in a Xhosa language.

As this was still going on, something else came up and the Zulu speaking people were owning taxi's, and the Xhosa's would be taken to the hostels in these taxi's that were owned by the Zulu speaking people.

The Xhosa speaking people who were residing at Polla Park, were those who were most effected by the situation, because most of the Xhosa people were staying at Polla Park.

The number of the Xhosa speaking people was reducing daily. The Xhosa community of Polla Park took a decision, reached a decision, because the Xhosa people would be killed in the hostels. They would be taken to the hostels and they would be killed, and a meeting was convened. The decisions that were taken there in that meeting was that the number plates should be taken, should be written down, the taxi's who were taking the Xhosa's to the hostels.

At that time, I was defending my community. We had our own Commander at that time. When this decision was taken, because this problem was going on and on and the number of the Xhosa's was reducing daily, we had to look for those taxi's.

I was later called, the following day, a day after the meeting I was called Mqolombile, my Commander called me and he told me about this problem, and he told me that there were taxi's and he had the number plates of those taxi's that were actually taking the people into the hostels.

There were two number plates, two different number plates. He told me that we had to go and look for those taxi's and we were to bring the taxi's with their drivers, so as to get more information of what was actually happening.

So the community, Polla Park community had to deal with these people. There was another person who was also an SDU member, who was also called by this Commander. As he was telling me about this, I was with another gentleman whose name was Xolani.

I remember well, at the time, it was during the day. He gave me a firearm, 38 Special. Xolani had a gun at that time, but he did not have the gun with him. It was at his home and it was a bit far from where we were.

I just told him that we can just go, he did not have to go back home and get his firearm, because that would waste more time, because we wanted, we were looking for people and we were not even sure if we were going to get those people or not.

We proceeded. Next to my house where I used to stay, it was next to the road that was used by the local taxi's. We took one taxi, we boarded a taxi there, myself and Xolani and we alighted just under the bridge, the one that is next to the hospital.

The taxi that we were going to, were those taxi's that were going to Johannesburg from Natalspruit hospital.

MR SIBEKO: Which hospital are you referring to here? You said those taxi's were from the hospital to Johannesburg, which hospital are you referring to?

MR ZWAYI: The bridge that is next to the hospital, that is Natalspruit hospital.

MR SIBEKO: Are you by any chance referring to the Natalspruit hospital?

MR ZWAYI: Yes, that is Natalspruit hospital. There is a bridge next to that hospital and under that bridge, there is a taxi rank.

We alighted there, next to the shopping centre. After that, we went down the road, towards the garage. There was a garage at that time, I am not sure whether it is still there now.

There was a garage that was commonly used by the taxi's, the taxi's from Thokoza. We went passed that garage, that petrol station. There is a factory called Hang Girl. When we were next to that gate of that factory called Hang Girl, my firearm was placed on my waist. It fell as we were passing that gate of that factory.

I picked it up quickly. I took it and I gave it to Xolani, the one who was in my company because I thought that it would fall again and there were people moving up and down in that area, and I thought that that would give us problems.

We went passed a place called Four Square in Al Road, there is another firm or factory called Consol. It is next to Wispeco. We waited there and we were looking at these taxi's as they were moving up and down that road.

As we were standing there, we were planning about what we were going to do if this taxi or one of these taxi's come and I told Xolani that I will give him a signal if there is a taxi to be stopped.

ADV SANDI: Sorry Mr Zwayi, you say you were looking at these taxi's and you were going to tell Xolani if a taxi was to be stopped. When were you going to decide that a taxi must be stopped?

MR ZWAYI: Maybe you didn't understand clearly. The way we were planning, I said I would tell him, once we boarded that particular taxi, I will tell him when to stop this taxi, if it comes at a place, a suitable place, a suitable spot.

MR SIBEKO: Whilst you were still waiting and looking for any of the two taxi's that you were looking for, you planned that if the taxi arrives, you will stop it, you will get into this said taxi and then whilst in the taxi, you will give a signal to Xolani as soon as you identified a perfect spot where you would demand that the driver stop this said taxi, is that what you are saying?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And then what is the further part of your plan, because all that we have now is that you would stop the taxi, you would get into the taxi, you will go along with the taxi driver until you identified a perfect spot where you would demand him to stop and then from the point of your stopping him, what would happen?

MR ZWAYI: After we had stopped this taxi, we would send him back, we would go with him and go back to Polla Park, because it was where he was needed and we would get information, because the only thing that we wanted was that information. We wanted to know more about this people who were taken to the hostel and there whereabouts, and he was supposed to explain further what happened.

We wanted information basically about these people, as a person who was sent to go and fetch those people and take them into the hostel. We wanted to know what was happening to the people who were taken to the hostel.

After gathering all that information, the community of Polla Park would take a decision. The community would see what to do with those people, but what we wanted was to get that driver in his taxi, and take that particular driver to Polla Park.

Can I go on?

CHAIRPERSON: Yes please, tell us what happened. Did you get one of those two taxi's, or what?

MR ZWAYI: One of these taxi's appeared. Fortunately the driver was all alone in the car. There were no passengers inside. We stopped the taxi, and it stopped.

I occupied the seat next to the driver and Xolani took a back seat. The driver went on. As I had already told Xolani that I would give him a signal at a suitable spot, he was looking at me all the way, he was waiting for my signal all the way. The taxi went passed Apex and there is another place called Mabulalambisa, it went passed that Mabulalambisa, it proceeded to the traffic lights. Just after the traffic lights, I looked behind, looking at Xolani.

When I looked at Xolani, I think in his mind, since he was expecting me to give him a signal if the spot was a suitable one, I think in his mind he thought it was time already to do something.

I just gave him one look and I looked forward. He took off the firearm and he pointed the gun at him and he told the driver to pull aside.

The driver got a shock because that was actually unexpected. At the time, I was not expecting Xolani to take action because I thought that I was going to give him a signal at a certain place. When the driver got a shock, he pressed the accelerator and even the car moved at a very high speed.

There was three lanes that were facing one direction, and this taxi was moving in the middle lane and on the other lane, there were cars that were going towards the same direction, both lanes. When he got a shock, he accelerated and the car moved at a high speed and he was actually trying to pull aside and I was also trying to bring it back to the right lane, but I failed because the car was moving very fast, until it collided with a truck that was on the left hand side, that was where I was sitting. I was sitting on the left hand side.

When this car hit this truck on the left hand side, the door was already opened, the driver had opened his door and I was not expecting that, I was still looking at this accident that was about to happen. The driver opened the door quickly and he got out of the car.

MR SIBEKO: Was the car still in motion when the person opened the door?

MR ZWAYI: When the car collided with the truck, it stopped. It just stopped and he managed to hold the brake and he opened the door and he got out of the car.

MR SIBEKO: Who was it, the driver who got out of the vehicle?

MR ZWAYI: Yes, it is the driver. The driver got out of the car because when it collided with this truck, I think the door was already open when he was hitting this truck. Then he got out of the car.

When I saw him getting out of the car, I told Xolani that here is this guy getting out of the car, but Xolani could see him. I think he was still confused because there was this accident on the other hand.

I told him that this guy was getting out of the car. He is the one who was holding a firearm, Xolani, and Xolani went after him. I also got out of the car. Just within a short distance from the taxi, when the driver got out of the car, he took the opposite direction.

He took the opposite direction from where we were going. There was a noise at the time, because that place is a place, it is a spot where one is not allowed to stop a car and the cars were hooting, there was a noise, there was a lot of confusion.

I alighted from the vehicle, I stood next to the car as I was looking for Xolani. I thought the driver was gone, he had gone at that time, but after that I heard a gunshot, about two times. As I was still looking at that, looking for Xolani who was with me, I thought, at the time I thought that the driver was gone already and there was nothing to do and all that was left for us, was to run away, because all we wanted was the driver, so there was nothing left for us to do if the driver wasn't there.

After these two gunshots, I saw Xolani coming to my direction. I asked him what was happening, and he said I shot him. Everything went wrong and the plan went wrong, and the other taxi's were already there and he thought that we would be attacked by these taxi men.

We decided to run away and we left that taxi there. We went passed a place, a power station, we went up the road. At some stage we saw police vans, and at the same time we thought they were people who were chasing us. Even that scene of the accident, there were people. We just decided to hide.

We decided to take cover at a place that looked like a lake or a small river, but I had to ask Xolani where the gun was and he said the gun was still with him, and I instructed him to give me the gun. He did so.

I tried to bury this gun on the ground, next to our hiding place. There were bushes there or shrubs. Only the handle, a part of the handle that was exposed, it was made of wood.

As I heard some noise, again I could hear that there were people coming. I could hear their noise and I could hear that they were approaching us. We hid ourselves, we had to hide. There were also dogs and these people came to this hiding place of ours. They were telling us to come out, they were Afrikaans speaking people, they were demanding us to come out.

Xolani went to them, but I was left behind in the hiding place, because I was not sure if these people had spotted us or not.

Xolani was shocked and he was also afraid. They asked Xolani where was the other guy and he said, he told them that I was also in that hole or furrow.

I resisted, I thought that they could not see me. One of them took out a firearm and he pointed it at me and I could see that this person, saw me. I understand that Xolani was also assaulted by these people and he revealed more information, and he told them that the gun was with me, because they wanted to know where the gun was and he told them that the gun was with me.

Xolani was younger than myself. I was also assaulted, they demanded this firearm. I tried to resist and deny. They assaulted me, they even put me in a ditch because I knew very well that this firearm would be used as an exhibit and we could be arrested.

But I did not tell them anything about the firearm. I was taken to the bakkie, to the police van. I was a bit dizzy at the time, I couldn't see everything that was happening.

I had a vivid picture, though I couldn't understand everything. Xolani was taken to that hiding place, he was taken there for something like 15 minutes. They came back. They came with this firearm, this white man came to the window where I was in the car and he said to me, here is this firearm, the one you used, the one you said you don't know anything about.

I was in pain at the time, Xolani was taken with another van. We were taken back to the scene of the accident. Even at the time, I still had a picture, I could see but not clearly. I could see that there was a person laying on the ground, I think that was the guy who was killed by Xolani, the taxi driver.

They opened the bakkie where I was sitting. The driver of the bakkie is the one who opened the back of the van, I saw a taxi driver who was a Zulu speaking person, he said here is this dog, the one who is killing our brothers.

I don't even know where did he get that type of information, I was also trying to disguise myself, I was trying to speak Zulu because I did not want them to see that I was a Xhosa speaking person, because that would be trouble for me.

This person could detect that I was a Xhosa speaking guy from Polla Park, and he said that we were the dogs who were killing them. He got in the van and he kicked me. This white man opened the back for him to assault me.

This is where the problem started. I fell unconscious.

MR SIBEKO: So in a sense what you are saying Mr Zwayi, is that you were arrested together with Xolani after this incident?

MR ZWAYI: That is correct yes.

MR SIBEKO: What happened to Xolani because I am under the impression that you were a single accused in this matter?

MR ZWAYI: I think we were arrested and Xolani were taken to Benoni, where he was placed. They managed to cut off the bars and they escaped during the night. That is how he escaped.

I was left all alone in this case. I think that is why I stand as a single accused in this case. Another thing, as they were still assaulting us, I went to Xolani, I told him that he must not reveal any information, he must not tell anyone that he knows me and I will also do the same, I will deny the fact that I know him.

We have got to pretend as if we were passengers in that taxi because it might happen that our statements would conflict or contradict. That is why I suggested that I don't know him. Therefore in my statement I said that I was all alone.

MR SIBEKO: Are you referring to the statement that you made to the police? You have just explained that you told Xolani to pretend as if you didn't know one another when you got into this taxi, and in fact what I am wanting to find out is, your statement to the police is it there that you told the police that you didn't know Xolani, you were alone?

MR ZWAYI: I told them, when I was arrested, I told them that I was all alone, I denied everything about Xolani.

MR SIBEKO: And then you proceeded to make a statement to the police, is that correct?

MR ZWAYI: Yes.

MR SIBEKO: And you also stated in the said statement, that you didn't know Xolani, you were alone and you were a passenger in the taxi, is that correct?

MR ZWAYI: Yes, that is correct. I told the police that I don't know Xolani.

MR SIBEKO: When you made the said statement, you gave the said statement voluntarily and the police never forced you, is that correct?

MR ZWAYI: Yes, I made the statement willingly. First of all I want to say that though I made the statement willingly, and even the manner of making this statement, I denied the fact that I was staying at Polla Park. The reason being that if the police who were arresting us, knew that we were staying at Polla Park, I think I would be dead by now.

They hated people, the community of Polla Park so much, and if I did reveal to them that I was coming from Polla Park, or I am also in the defence of Polla Park, I am certain that it was - they would demand more information about Polla Park, everything that was happening at Polla Park, because there were people who were wanted by the police at Polla Park.

I thought again that if I can tell them the truth as it was, I would have problems. The police would tell the IFP members, because they were cooperating, collaborating with the Inkatha people, and we would be taken to court and I would be attacked also even in court. That is why I told Xolani not to mention anything about me.

We just wanted to make them lose direction, because even the Polla Park address was not mentioned in my statement, I decided to put a Tembisa address, because if I can say anything about Polla Park, I would be in big trouble.

MR SIBEKO: So in essence, you agree that the statement that you made to the police, was not true? In fact you lied under oath?

MR ZWAYI: Yes, that is correct. I lied under oath because of those reasons, because I could see that I was in big trouble.

MR SIBEKO: And you say the reason why you lied is firstly because you thought if you were to tell the police that you were from Polla Park, they would give you over to the IFP members in the hostels, who were your enemies at that time, is that correct?

MR ZWAYI: Yes, that occurred to me because I knew the police hated the community of Polla Park.

MR SIBEKO: And then you further say if you told them the truth and your true address, your correct address, they would have used you to get the information that they needed out of Polla Park, and you further say that the reason why you told them lies, is because you wanted to protect yourself in court, is that what you are saying?

MR ZWAYI: That is correct.

MR SIBEKO: In essence what you are saying today is that, you will correct me if I am wrong, the violence that engulfed Thokoza took a different turn in about 1994? Am I correct, where individual Xhosa speaking people were targeted, is that your evidence?

What I want us to do now, is to confirm whether I've got the true or the correct picture of what you testified on. If you can tell me whether I am correct or not.

Your evidence is that the violence that engulfed your place of residence, that is Polla Park, took a different turn in or about 1994, where individual Xhosa speaking people were targeted or were killed, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And you further said the mode of operation of the time, that is of the IFP, was to if they, those who were driving taxi's, upon hearing a person speaking in Xhosa, they would take that person into the hostel,is that the Mshayazafe hostel that you are referring to?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And you further say quite a large number of people who were Xhosa speaking, were effected as a result of this operation by supporters of the IFP in the taxi industry?

MR ZWAYI: That is correct.

MR SIBEKO: And then a reasonable number of residents of Polla Park, who were also Xhosa speaking, were also victimised in the process?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Which led to the residents or the community of Polla Park, convening a meeting to discuss this problem, is that what you are saying, and in your application you are saying this meeting was held on the 17th of January 1994, is this correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And you said this problem was discussed and a resolution was taken that those taxi's should be identified and the drivers thereof should be taken back, or should be brought back to Polla Park for questioning and the community would decide on the fate of those drivers, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And then on the following day, that is on the 18th, you were approached by your Commander, Nondoda Mqolombile, who gave you two registration numbers of the said, suspected taxi's so that you could go and hijack, I can say, or kidnap those drivers back into Polla Park, is that what you are saying?

MR ZWAYI: Yes, that is true.

MR SIBEKO: And as part of the team, part of your team, Xolani was also instructed, given the same instructions that he's got to go along with you to try to get these drivers back into Polla Park?

MR ZWAYI: Yes, that is true.

MR SIBEKO: And then, before we proceed, are you by any chance in a position to give us the registration numbers that were given over to you, do you remember those registration numbers? If not, then it is not a problem?

MR ZWAYI: That happened some time ago. I cannot remember, I won't lie.

MR SIBEKO: And then you had in your possession a .38 Special revolver. Xolani didn't have any firearm with him. You nevertheless proceeded to - you took local taxi's up until the bridge near by Natalspruit hospital, is that what you said?

MR ZWAYI: Yes, that is true.

MR SIBEKO: And then you walked for a while until you arrived at - you passed, you boarded a taxi until you said Hang Girl is the name of the industry that you got off the taxi, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: That is where that .38 fell on the ground and you picked it up and you gave it to Xolani, because you thought it would keep on falling and there were a number of people walking about, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: You walked on until you stopped at Consol, that is another industry in the vicinity, is that correct?

MR ZWAYI: That is correct yes.

MR SIBEKO: Will I then be correct that by that time, you were no longer near Natalspruit hospital, but you were in Al Road?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: You waited until you spotted one of the taxi's, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And whilst you were still waiting, you came up with a plan that you will board one of those taxi's, or any of the taxi's that arrive first, you will board that taxi and you will give Xolani a signal as and when you think it was suitable so that you could kidnap the said driver back into Polla Park, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: The taxi arrived, one of those taxi's arrived, it stopped, you got into the said taxi, you went along with that driver, and the driver was alone at that time that the taxi arrived, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Your taxi travelled a while until it reached a certain robot, after which you looked back at Xolani and Xolani took that as the signal that it was about time that he got into action, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: That is when Xolani produced the firearm he was carrying and instructed the driver to pull off, is that what you said, to pull over the road, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: The driver got scared, instead accelerated, is that what you said?

MR ZWAYI: Yes, that is true.

MR SIBEKO: He accelerated until he was about to knock the other cars which were using the same road, and that is when you tried to control the vehicle, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: It went on until, the said kombi went on until it knocked the truck which was on your left, as a result of which your door, the passenger's door was effected, is that what you are saying?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: The driver got out, Xolani followed and you followed thereafter. They disappeared and the next moment, you heard two shots?

MR ZWAYI: That is correct.

MR SIBEKO: Xolani confirmed that he is the one who fired the shots and he confirmed having shot the driver, is that what you said?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: You ran away and you were arrested?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Do you still confirm that your initial intention was to get the driver, kidnap him, take him to Polla Park, in accordance with your Commander's instructions?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: You nevertheless accept the responsibility of the death of this taxi driver, is that not so?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And as a result of your arrest, you gave a false statement to the police so that you could protect yourself in accordance with the reasons that you have already furnished, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Nevertheless the trial continued, you were convicted and sentenced to 20 years?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: And you are applying for amnesty for the death of that person and such unlawful possession, is that correct?

MR ZWAYI: Yes, that is correct.

MR SIBEKO: Thank you Chairperson, I've got no further questions.

NO FURTHER QUESTIONS BY MR SIBEKO

CHAIRPERSON: Thank you Mr Sibeko. Mr Zwayi, is this the only reason why you are in prison?

MR ZWAYI: Yes, that is correct.

CHAIRPERSON: Thank you. Adv Steenkamp, any questions?

CROSS-EXAMINATION BY ADV STEENKAMP: Just one question Mr Chairman, if you will allow me. Sir, are you also applying for robbery with aggravating circumstances, are you also applying for that offence?

MR ZWAYI: Will you please repeat your question sir.

ADV STEENKAMP: My question is are you also applying for robbery, amnesty for robbery with aggravating circumstances?

MR ZWAYI: Yes, that is correct.

ADV STEENKAMP: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY ADV STEENKAMP

CHAIRPERSON: Questions by the panel?

ADV SANDI: Thank you Chairperson. Mr Zwayi, it would seem to me that you had no instructions whatsoever from your Commander to shoot and kill this driver, isn't that correct?

MR ZWAYI: Yes, that is correct.

ADV SANDI: Your instructions were to go and identify a taxi or one of the taxi's that were taking people into hostels, and bring that driver to the Polla Park community so that this person could be asked questions, isn't that correct?

MR ZWAYI: Yes, that is correct.

ADV SANDI: Now, which one between the two of you decided that this particular kombi, this taxi, should be stopped?

MR ZWAYI: The person who was to take a decision to stop the taxi, was myself, because I was going to give my companion a signal to stop the taxi.

ADV SANDI: How were you going to know that this was the taxi to be stopped?

MR ZWAYI: I knew the route, I knew this route and I knew where the perfect spot would be.

MR SIBEKO: If I can be of assistance, I think that there is a misunderstanding.

ADV SANDI: How did you identify this particular taxi?

MR ZWAYI: I identified the taxi with the registration number.

ADV SANDI: I assume you got the registration number from Xolani?

MR ZWAYI: We got the registration number from our Commander.

ADV SANDI: I understand you say you were a member of the ANC Youth League. When did you join the ANC Youth League?

MR ZWAYI: I was a member of the ANC Youth League and during the fight, I was under defence. We were assisting, we were one thing, we were assisting one another, but our structures were different.

There was a Youth League who had their own structure, but when it came to protecting the community, we were united. If there was any conflict that we would be involved in, all the structures would combine and fight the enemy.

ADV SANDI: Are you able to remember who was the National President of the ANC Youth League at that time?

MR ZWAYI: Will you please repeat your question.

ADV SANDI: Who was the National President of the ANC Youth League at that time?

MR ZWAYI: I cannot remember well.

ADV SANDI: Do you know of any person who may have been a member, do you know of any person who may have been the National President of the ANC Youth League at any stage before that?

MR ZWAYI: The one person that I can remember from the highest authority, it was Peter Mokaba.

ADV SANDI: Did you say in court, there were some other passengers in the taxi?

MR ZWAYI: Yes, I did mention that. I said there were other passengers in the taxi, that appeared on my statement, on the very first statement.

ADV SANDI: Why did you say there were other passengers in the taxi, why - I assume that you were lying to say that to the Court?

MR ZWAYI: The reason for me to do that, it is because I was trying to - I was trying not to mention the fact that I was living at Polla Park.

I pretended to be an ordinary passenger, because I knew very well that if I can reveal all that information, they would need more information, they would use me for information. That is why I am saying that in the very first statement of mine, I lied. It is because I knew that they would use me to get information about Polla Park, so I had to lie and say I was just an ordinary passenger. That is why I even gave them the wrong address, but did not mention anything about Polla Park, but Tembisa.

I knew that that would give me more problems if they can get information that I was staying at Polla Park. I knew the police were collaborating with the Inkatha Freedom Party, I knew that there would be problems coming my way.

ADV SANDI: But how was that going to help you, to say that there were passengers in the taxi, when in fact there were no such passengers?

MR ZWAYI: First of all, in this statement, the one that I am referring to as a wrong statement, is a statement that I was using because I did not want to reveal my address. That statement is wrong, the one that was used in court.

I was trying to protect myself, I was trying to cover up some information, I was trying not to tell everything because I knew my life would be in danger. That is why I decided to lie and say I was just a passenger and I even denied knowing anything about my co-accused.

I knew that a lot of information would be revealed. I remember when my co-accused escaped in Boksburg, I realised that if I did mention the fact that I knew him, I was going to be forced to go and fetch him wherever he was. I was going to be used to provide information about him, that is why I was never asked about anything concerning his whereabouts, if I did mention that I knew him.

I was going to be assaulted, and they would force me to go and fetch him.

ADV SANDI: Thank you Mr Zwayi, you have answered me. Thank you Chairperson.

ADV GCABASHE: Mr Zwayi, just tell me, let's go back to Simon Ngwengwa, at the time that you were living in Polla Park, what position did he hold in the community?

MR ZWAYI: Mr Ngwengwa was in the ANC Branch, he was a leader. He was a well known leader at Polla Park.

ADV GCABASHE: You don't know what position he held in that leadership role?

MR ZWAYI: I cannot remember, I won't lie. I don't even want to say he was something, but I knew that he was in the Polla Park ANC Branch leadership.

Whoever needed something, whoever would come or any information from Shell House and other places, he would go there and get the information. We just regarded him as a leader, but I don't know what position he was actually occupying.

ADV GCABASHE: Did you attend that first meeting that he called, the first meeting of the Polla Park community, to discuss the problems the residents were experiencing? This meeting was in 1990 if I recall correctly?

MR ZWAYI: What was the subject, what was in the agenda of that meeting?

ADV GCABASHE: That was the first meeting that was called to discuss the difficulties the Polla Park community were having with the hostel dwellers and the IFP and if I recall correctly, it was the only one that he actually called and Chaired. Do you recall that meeting, were you at that meeting?

MR ZWAYI: In that kind of a meeting, I was not present. I was home during that period, that was just before December, I had to go home. I am sure that I was not in that meeting, that is why I cannot remember a thing.

ADV GCABASHE: When you came back from home, do you recall what had been decided at that meeting, if you heard about it at all? I am just trying to ascertain your relationship with the community, your activities in the community?

MR ZWAYI: I heard about meetings that were convened, it was actually more than one meeting. I got a report that there were meetings and that there - we were people who were directly in the conflicts of fight, we used to attend meetings but most of the times, we would rely on our Commander, if the Commander attends the meeting, he is the one who would give us more information thereafter.

I would get a report only if I was not present at a meeting.

ADV GCABASHE: The other person, I would like to ask you about is Mr Davis Bhenkindile Ndwangu, do you know him?

MR ZWAYI: I have been away for a very long time, so some things just slipped my memory bit by bit. I cannot remember him well, but I think I know the name because I have been away for quite a long time and some things slip my memory. Maybe I can be able to identify him if I see him, but now I can't match the name with the picture.

ADV GCABASHE: Do you know a Ceba, either Mr Ceba or his first name would have been Ceba, who was also involved in Polla Park in the mid-1990's, you know up to 1993, 1994, at that time?

MR ZWAYI: Yes, I think I know something about Ceba.

ADV GCABASHE: What was his role in the community?

MR ZWAYI: He had a role to play, but right now I cannot remember. It is one of those things that slipped my memory.

I can still remember him, but I am not sure what role he played, but he had a certain position that he was occupying. I cannot remember clearly what it was.

ADV GCABASHE: In terms of the structures you have referred to, you are saying the structures that were operative at Polla Park were the ANC Branch, the ANC Youth League and the SDU's, is that correct?

MR ZWAYI: Youth League had its own structure, and the SDU had its own structures, they were different structures.

ADV GCABASHE: Were any of the separate activities of those structures, coordinated by anybody when you were a member of the SDU?

MR ZWAYI: What is it that you are talking about, will you please repeat your question?

ADV GCABASHE: You know, you referred not so long ago to meetings that would be held and the structures would meet to discuss certain things. If these were the three structures, was there a general convener of those meetings for example, or was there anybody who would bring those structures together, to check on who was doing what, to help defend and protect the community? You know that type of thing?

MR ZWAYI: I get your question now. As we were involved in a war, there was nothing that was directed to a specific structure, but as we were protecting the community, we would just fight the enemy at that particular time.

Nothing was directed to a specific structure. The structures would discuss their own meetings at their own times, but when it comes to protecting the community, we were not separated, we would be one thing, and drive the enemy away.

There would be meetings for different structures, that showed we differed, the Youth League would sometimes have their own meetings to solve their own problems, that had nothing to do with the violence.

They were discussing their own issues, but when the enemy comes, we would come together, all of us and fight.

ADV GCABASHE: Nondoda, do you know who he reported to, whom he was accountable to?

MR ZWAYI: I remember that he sometimes would work with a person called Mawawa. He was also in the SDU's. I think they were working together.

He was also there as a Commander.

ADV GCABASHE: Mawawa?

MR ZWAYI: Yes, it is Mawawa. There would be different sections, sometimes there would be an A Section, D Section and so forth.

There would be a Commander for a certain Section and they would contact one another.

ADV GCABASHE: Nondoda and you as somebody who served under him, which Section was he responsible for?

MR ZWAYI: He was under the SDU's, Nondoda was working under the SDU, he was under A Section, that is where I was also serving.

ADV GCABASHE: We have heard evidence of Shangaans who used to live in Polla Park and who fought with you. Do you know anything of this? Fought with you, meaning on your side, not against you, but together with you?

MR ZWAYI: When that was happening, I was present. The SDU groups would be on the other side and the other group of SDU's would be on the other side, and when I took a closer look at this thing, this did not come up with a member of the SDU.

This person was a person who had contact with people who were organising the arms, this Shangaan speaking person. Maybe it is a person who had contact with people who were supplying arms.

ADV GCABASHE: I am just - can you just quickly clarify, this person, who are you talking about?

MR ZWAYI: This person, I remember something happened. A person called David who was limping, he was using crutches.

I think this whole thing came up with this person. There were some items that were taken, I don't know what was happening, but I was never involved in that. I just saw it happening in front of me, but I was never involved.

That is why I don't have enough information as to what happened because it ended up as something that the SDU's and the community had to discuss and they had to put it to end.

I remember because I was there when it was happening. Some of the SDU's who were there were not involved in that, but some of the SDU's were involved and some of them were not involved. That is why I am saying this was a domestic issue.

The others were in favour of this other one, and the others were in favour of the other one, but it is something that I saw so happening in front of my eyes. It is something that had to come to an end quick.

ADV GCABASHE: How many of you were there in your Unit?

MR ZWAYI: How many were us in the Unit? Will you please be specific, I don't understand your question. What Unit are you talking about, will you please clarify that question.

ADV GCABASHE: Your SDU Unit that reported to Nondoda, who many of you made up that team of SDU members in Section A?

MR ZWAYI: It was quite a large number of us. I cannot say, I cannot tell the specific number, it was just a number of us.

ADV GCABASHE: What other activities were you involved in as a member of that SDU?

MR ZWAYI: There is no other incident that I was ever involved in, that would be visible except the case that I am here for today.

There are things that were happening, some of the things I would find them there, I would hear people telling me that something like that happened. I am just like a person who was not present, because I would just come after the story.

ADV SANDI: Sorry?

MR ZWAYI: The only one that I know that I was involved in, is the one that I am here for today.

ADV SANDI: Mr Zwayi, you see my problem with your testimony is that part of what you say is very vague, and general. You don't seem to know the personalities that were involved during this conflict.

Do you know the person that was the Chairperson of the ANC at this time at Polla Park?

MR ZWAYI: I remember now, it was Mr Ngwengwa. Mr Ngwengwa was the Chairperson, he would convene meetings. Most of the time he would be present. He would chair the meetings.

ADV GCABASHE: Let's get to this particular incident. When you were speaking with your Commander, he said to you here are registration numbers of taxi's that take our people to Mshayazafe hostel, that is correct?

MR ZWAYI: Yes, that is correct.

ADV GCABASHE: But it is also correct that different drivers, can drive a particular taxi that is owned by one person, so you can have five different chaps that drive Gcabashe taxi's for instance, just a quick example?

MR ZWAYI: Please repeat the question.

ADV GCABASHE: Let me rephrase the question, you had the registration of two taxi's, those taxi's were owned by either one person or two different people, yes?

MR ZWAYI: I won't know about ownership, but we had two different number plates that were found because there would be people that would escape this kidnapping. They would escape, sometimes right inside the hostel.

The people who would escape, because the people would ask you what is an elbow, therefore in Xhosa you say it is "ingqiniba" and in Zulu it is called "indololwane", that is how they would determine whether this person was a Xhosa speaking or not, about the elbow. If you ask me what is an elbow in my home language, I will tell you it is "ingqiniba", but they will know if you say it is "ingqiniba", they will know that you are a Xhosa speaking person, but if you say "indololwane", they will know that that is a Zulu speaking person.

There are people who would escape and they would come back to us and give us information of what was happening and what happened there, therefore we would get such number plates from such people.

ADV GCABASHE: My question really is, how were you assured that the driver could give you that information that you needed? How did you know that it is not the owner of the taxi who is the person who can give you the information?

MR ZWAYI: We would get all that after this person was captured, and we take this person to Polla Park, and during questioning that type of information would arise.

We would be able to determine or detect if this person was the culprit during questioning. It is correct that you did not reconnoitre or try and check on the routes these two particular taxi's were using, when you might find them, that kind of thing, reconnoitre your target?

MR ZWAYI: We could not reconnoitre this route, we would just go there because the order that we were given, was to go there and take them with the kombi, the only people who would investigate, were the people of Polla Park, the community of Polla Park, and they were the people who would take decisions and also give us a way forward.

Our job was just to go there and take this person with the kombi, not to reconnoitre. We would just take this person and bring it to the community, and the community would deal with this person.

ADV GCABASHE: You see to my mind, and we don't look at things the same way obviously, reconnoitring would have helped you ascertain where it is easiest to catch these particular people you are after.

How did you know that going to that particular spot, would get you a good result?

MR ZWAYI: I don't understand your question, when you talk about inspecting the place or reconnoitring the spot. I would request you to repeat your question, I just want to answer straight.

I don't want to be irrelevant when trying to answer your question, will you please repeat it.

ADV GCABASHE: That is quite in order. How did you know that going to that particular place, would get you the result you wanted, that you would find one of those taxi's there?

MR ZWAYI: First of all, we were told that the taxi's who used to do all these things, what taxi's were known to be doing these things, and we were even told about the route that these taxi's were using.

Even the planning, we were planning on the basis that if it happens that this taxi that we were waiting for, comes this particular way, we wouldn't just board a taxi, but we were just planning on the possibility that if this is really true and if this taxi comes to this road, therefore our plans were based on that.

That was our planning.

ADV GCABASHE: Who did you go through this plan, with?

MR ZWAYI: I was with Xolani.

ADV GCABASHE: Was that at the time that you were waiting for the taxi to arrive, or did you plan the detail before you waited for the taxi?

MR ZWAYI: We planned as we were waiting for this taxi to come.

ADV GCABASHE: Just as a matter of interest, was Xolani in your SDU? Was he a member of your SDU?

MR ZWAYI: He was in the K-Section, not A-Section. Xolani was not in my Section, he was in K-Section.

ADV GCABASHE: In your discussion, I understand the signalling, my question is, how were you going to finally execute your mission?

You know, once you had given the correct signal, what was Xolani supposed to do and how were you then going to move from that point, back to Polla Park? You know, the plan, I am not talking about what happened, I am talking about the plan that went so wrong?

MR ZWAYI: If I had given Xolani a signal to stop the taxi, the taxi would pull aside, and after that, we would take a driver, we would take the driver to the back seat and the one was going to drive the taxi, because the driver would give us problems, he wouldn't drive ... (tape ends) ... driver to the back seat and after that, we would take him with in the car, and I would drive the car to Polla Park, to the community.

ADV GCABASHE: Thank you very much Mr Zwayi, thank you Chairperson.

CHAIRPERSON: Thank you. Perhaps we can just briefly conclude this, Mr Zwayi, your Commander knew that you were armed, is that correct?

MR ZWAYI: No, we used to get the firearms from the Commander. I did not have a gun.

CHAIRPERSON: So that .38 Special, you got from the Commander?

MR ZWAYI: Yes, that is correct.

CHAIRPERSON: And he knew that you were taking this to execute the order, to kidnap the drivers of these two taxi's?

MR ZWAYI: Yes, that is correct.

CHAIRPERSON: Were these taxi drivers regarded as part of your enemy?

MR ZWAYI: Are you talking about taxi drivers in general or these two taxi drivers, or are you talking about the taxi drivers in general?

CHAIRPERSON: Sorry, I should have been more specific, these two drivers of those taxi's in respect of which the registration numbers were given to you?

MR ZWAYI: Yes, we regarded them as our enemies, because their taxi's were used to kidnap people. They were our enemies, because their taxi's were identified, but not their names. If their names were revealed, we would just go and fetch them in person, but we didn't know their names, we were only given their registration numbers.

The person who would be driving that particular taxi, even if he was not the culprit, he would be heavily effected, because we would take him, we had only the registration numbers, we were given only the registration numbers.

Everything would be dealt with by the community and the community would determine if the person was innocent or not.

CHAIRPERSON: Did you expect that there would be a likelihood of the driver resisting if you tried to kidnap him in this particular instance?

MR ZWAYI: If you are about to kidnap a person, you would expect resistance, that is why we had a firearm, we anticipated that this person could resist, but the firearm would be used to threaten him. Even if the person wants to resist, he would stop resisting and come with us.

I have lost your question now, I would like to go on answering your question, would you please repeat your question.

CHAIRPERSON: No, I think you have actually answered it. I have asked you if you expected that there was a likelihood of these drivers who was about to be kidnapped, resisting and you said yes, and that is why you took the arm.

Was there anything that you wanted to add to that?

MR ZWAYI: Yes, I would like to add something else. As we were about to kidnap him, we were expecting anything. We were even expecting that he would be armed and he could shoot at us.

CHAIRPERSON: Were you ever subsequently reprimanded by either your Commander or the community of Polla Park for what happened in this particular incident?

MR ZWAYI: We were arrested on the very same day of the incident. That never happened because we were arrested.

CHAIRPERSON: Surely you had contact with people from the community, was there ever an indication that the community and the Commander and even your Self Defence Unit structures in Polla Park was reprimanding you or distancing themselves from what you had done?

MR ZWAYI: As we were given that order by our Commander, he knew very well everything depends on the situation prevailing at the time, we were not going to kidnap a person who was just lying low, we went to kidnap a person.

I think my co-accused, Xolani, escaped in jail and he went back to the community. I think he did explain everything about the occurrences of that day, because I did not hear anything. I think that he did explain that because when I came back, they already knew about what happened that particular day.

Whatever happened, would be on Xolani's shoulders, because I am not the one who fired, it is Xolani. I think they got all the information from Xolani.

Xolani said the driver came straight to Xolani, seeing that Xolani had a firearm. Maybe the driver undermined Xolani because Xolani was shot, therefore Xolani had to shoot him, because I did ask him why did you shoot the guy and he said the driver came straight to him, he wanted to catch him, and he decided to shoot as the driver was undermining him.

I think he gave that explanation to the community as well as the Commander.

CHAIRPERSON: Is the nett result of all that that the Commander and the community were satisfied with what had happened, they were not distancing themselves from you or reprimanding you, is that really what you are saying?

MR ZWAYI: I spent six months in jail, I did not hear anything about that. I don't know how far did they go with the discussions.

I cannot say that they were satisfied or not satisfied, but when I went back there, no one was talking about that any more, we were discussing general issues.

CHAIRPERSON: Just to round it off, you personally were never reprimanded?

MR ZWAYI: I told the Commander about what happened on that particular day and nothing further, and nothing went on after that.

CHAIRPERSON: Just give us an idea, at what stage did you discuss the matter with the Commander?

MR ZWAYI: After I was out on bail, that was when this was discussed with my Commander.

CHAIRPERSON: All right, we are going to adjourn at this stage for lunch. We are adjourned.

COMMITTEE ADJOURNS

NDZIKILELO JACKSON ZWAYI: (still under oath)

CHAIRPERSON: Mr Sibeko, re-examination?

RE-EXAMINATION BY MR SIBEKO: Only one aspect Mr Chairperson. Mr Zwayi, do you still confirm that you also apply for amnesty for the offence of robbery?

MR ZWAYI: The manner in which I am asking for amnesty, I am not asking for amnesty with regard to robbing in particular, but with regard to the incident as a whole, that is the shooting and killing. Our intention was not to rob. I was involved, that is why I am asking for amnesty, because I was involved in this particular incident of shooting, but not robbing.

MR SIBEKO: In essence what you are saying, you went there, it was not part of your mission to go and rob that person of his kombi, is that correct?

MR ZWAYI: No, we did not go to rob the taxi, we wanted the person that is the driver of the taxi himself.

MR SIBEKO: Thank you Mr Chairperson, I've got no further questions.

NO FURTHER QUESTIONS BY MR SIBEKO

CHAIRPERSON: Mr Sibeko, we are minded to handle this matter independently from the rest of the matters that we have heard for one, it seems to relate to incidents in respect of which we have had no other testimony and relating to a particular area where we have heard one or two more witnesses, but clearly in respect of the matters that were raised by this applicant, the application does not seem to be particularly linked closely to any of the others, so we thought it expedient to handle this on its own and then of course, moreover your client seems to be in custody in respect of this incident. If for no other reason, that reason also would weigh with us in dealing with the matter independently.

As I have indicated, it concerns fresh material in respect of which, unlike some of the other applications, we haven't heard any other testimony. We are not sure whether you are calling any other witnesses in support of this application or not, and furthermore of course, we would prefer you to deal with the matter, address us on this matter quite independently from the rest and not to deal with it as part of the bigger whole that we have agreed on some modus operandi, in respect of.

I am not sure what your position is on this. Are there witnesses that you are calling in respect of any of the issues that have been raised by the applicant firstly, if you can respond to that?

MR SIBEKO: At this stage Mr Chairman, I don't have any witness or witnesses in as far as this applicant is concerned.

My instructions are that unfortunately this Commander by the name of Mr Mqolombile has since passed away and then the whereabouts of this Xolani are not known, so as far as this applicant is concerns, he stands alone in the whole operation which we heard about in this application.

At this particular stage I don't have any witness.

CHAIRPERSON: Yes, we didn't quite expect that he would be able to call Xolani, we would have thought that there might have been some understandable difficulties surrounding Xolani on the version of the applicant.

You say that the Commander is deceased and there is nobody intend to call or that is available to confirm the situation around the taxi's and the decisions to bring these drivers in for questioning and that sort of stuff?

MR SIBEKO: Mr Chairman, with due respect, I would submit that already there is evidence on record firstly by Ms Sally Sealey to the effect that amongst the people who were victimised in this fashion, were the late Treasurer of the then ANC or the Civic by the name of Mr Danny Mahlango and Mr Ngwengwa or Mr Ndwangu also gave testimony to that effect.

Unless this forum requires that we bring further evidence to that effect, that can be organised Mr Chairman, but I thought that already there is evidence to the effect that the modus operandi of the taxi drivers had already been placed on record.

CHAIRPERSON: Yes, no, that is so, we have heard testimony around the fact that people were apparently let's call it abducted by these taxi drivers or by means of these taxi's and taken into the hostels and killed, dealt with.

That is quite true, that is on the record. I just raised the question, of course you are free to deal with the matter as the client instructs you to do. I just thought that there might be some other assistance forthcoming to the panel, but it is of course your matter and you deal with it as you are instructed. If you are happy, then of course that is the way the matter would be dealt with.

The context in which I have raised the matter particularly in regard to Polla Park in 1994, I had thought that you know, there might be a possibility of further testimony, confirming that particular situation at that stage and the fact that there was the decision to act against these taxi drivers in the way that was explained to us and so on. But as I say, that is just a thought that comes up you know. You deal with the matter as you are instructed.

ADV GCABASHE: If I might ask Mr Sibeko, have you got other clients, applicants from Polla Park who would give - whose applications turn on a similar set of facts, events? I know we have heard three already over the last two days. Are there any other applicants who may be coming to give similar evidence in terms of those circumstances, certainly in 1994 and differentiate that from the Thokoza situation, the situation that pertained in Thokoza in that 1994, early 1994 period?

If I recall well, the evidence we have about abductions, relates to key personalities, who were known by the IFP and deliberately abducted because of their leadership qualities and roles within the community of Thokoza and it is really just to assist with the Polla Park link, you know how that fitted in to that general way that the IFP targeted people who they perceived to be their opponents, that would be of assistance.

MR SIBEKO: Firstly, this was the last applicant from Polla Park, which would mean this is the only case with its own facts, in so far as Polla Park is concerned.

I would further request that I be given an opportunity to quickly consult with the applicant so that I can get proper instructions in as far as the availability of a person who may come in and confirm this situation as it is, in as far as this incident is concerned. If I may be given that opportunity.

CHAIRPERSON: I think that is a fair request. We will take a short adjournment and you will indicate to us when we can reconvene. We are adjourned.

WITNESS EXCUSED

COMMITTEE ADJOURNS

MR SIBEKO: Thank you Mr Chairman. Mr Chairman, I would like to request that Ms Sally Sealey be re-called as a witness.

CHAIRPERSON: Do you want Ms Sealey sworn in?

MR SIBEKO: That is correct so Mr Chairman.

CHAIRPERSON: Ms Sealey, won't you please rise and again, give us your full names for the record.

MS SEALEY: My name is Sally Sealey.

SALLY SEALEY: (sworn states)

CHAIRPERSON: Thank you, please sit down. Mr Sibeko?

EXAMINATION BY MR SIBEKO: Thank you Mr Chairman. Ms Sealey, we have heard this morning evidence to the effect that there were abductions of mostly Xhosa speaking people, they were taken in taxi's and put into hostels and a lot of things would happen to them.

Throughout the years you spent in Thokoza during the violent era, do you know anything about this?

MS SEALEY: If I can just begin, when I first started working in Thokoza, it was in 1990, the taxi's at the very beginning of the year, used to serve the entire area of Thokoza, however with the advent of the violence, particularly towards the end of 1990 and the beginning of 1991, it became quite clear that people that lived sort of from Buthelezi Street going down towards Polla Park, it was unsafe for people to use the taxi's that used to - well, the taxi's that used to run straight through Khumalo Street.

There was a decision that there would be two routes into the area. The first route used to - and that route was mainly - the drivers from that route, were mainly hostel residents, and those particular drivers used to use Khumalo Street up until I think just before you get to Sweet Xhosa Street, and then a second route was established, where drivers were residents of the Thokoza township themselves, and they used to use a route that used to go via Polla Park.

There was a middle section and in fact, this is the situation up until today, there is still two routes in Thokoza, there hasn't been a reconciliation in terms of the taxi route so to speak. The route via Polla Park used to come into Khumalo Street from the bottom end of Thokoza, passed Polla Park and that route used to stop at Sekonyela Street. There used to be a middle section in the township, which was not served by taxi's.

The reason for this alternative route, was indeed the fact that many residents of the townships found that when they took a taxi, very often that taxi used to be stopped at the hostel.

Those people who were fortunate enough, managed to run away, but there were those people that were actually taken into the hostel and a lot of people actually lost their lives in that way.

People, a number of bodies were found behind the hostel, many of those bodies were never identified mainly due to the fact that a lot of them had been left there for quite some time, and were unfortunately unrecognisable by the time that they got to the mortuary.

There has been a taxi problem in the area. I know that during the course of my work at the Independent Board of Inquiry, Thokoza wasn't the only area that experienced this particular problem with taxi's being used to take people into the hostels. I know for example in the Vaal Triangle, in the townships of Sebokeng, Boipatong, Paballong, very similar incidents used to take place.

I recall that when I was working at the IBI, we were given a list and on the top of the list, if I can remember correctly, it was warning residents that they actually shouldn't use various taxi's that had been listed below.

If I can remember correctly, it was a very, very long list, six or seven pages of particular taxi's. I am not too sure what the evidence was for putting those particular taxi registration numbers in the document, but I was aware that there was such a list.

ADV GCABASHE: Can I just ask you to assist us in terms of dates. The list, when would you have had that list?

MS SEALEY: I think we would have got that list towards the middle of 1993, end of 1993.

ADV SANDI: The abduction went on until when?

MS SEALEY: I beg your pardon?

ADV SANDI: When did the abductions stop?

MS SEALEY: Sorry sir, I can't hear you.

ADV SANDI: When did the abduction stop?

MS SEALEY: With the changing of the routes, there was definitely a reduction in the number of people that were taken into the hostel, but there was still a problem. For example, if you took a taxi from Johannesburg, taxi's that operate from Johannesburg, operated by the Faraday Taxi Association bringing people into Thokoza, and very often, where you would have to get off the taxi, it is very near the hostel, so there were still some abductions, although not as many.

The real serious problem was sort of beginning to the middle of 1993, but towards the end of 1993, with the changing of the routes, there were less problems. But that did use to happen every now and again.

ADV GCABASHE: You see, we are here looking at an incident that occurred on the 18th of January 1994 and we are looking at a community decision that was taken on the 17th of January in Polla Park. Having understood from other applicants that there were these two routes, I wondered to what extent and I still wonder to what extent Polla Park residents would be effected by the abductions as opposed to Thokoza residents, who were going into the centre of Thokoza.

MS SEALEY: I think that the vast majority, once the taxi routes had changed, most people from Polla Park, would have used the alternative route.

But there were still for example, if you wanted to go to Johannesburg, these two routes that I am talking about in the townships, are local routes, they are not the routes that for example go to Johannesburg. That has only been a recent development, that you can actually catch a taxi from Polla Park, from the corner of Polla Park itself, to Johannesburg.

Normally what you would have to do is, you used to take a local taxi from the bottom of Polla Park, get off at Natalspruit and then that is where you would have to get a Johannesburg, a taxi on to Johannesburg. So there was a possibility that if you took a taxi from Johannesburg, you would still have to get off pretty near the hostel and there was a possibility then of the taxi you know, instead of stopping at the hospital, just continuing on and going into the hostel.

That is a possibility, I am not saying that that necessarily happened, but that could have happened. I mean that is on that route, on the Johannesburg route, on the Faraday route, that could have happened.

ADV GCABASHE: You are saying there was a fully fledged taxi rank at Natalspruit hospital?

MS SEALEY: That is correct yes, even up until today, there is a huge taxi rank there.

ADV GCABASHE: How far is Natalspruit hospital from Thokoza/Polla Park?

MS SEALEY: I am sure it is at least two to three kilometres, it is right at the top of the township, whereas Polla Park is right at the opposite end.

ADV SANDI: In your investigations and research, were you able to ascertain as to whether any people from Polla Park had been abducted through the use of taxi's?

MS SEALEY: We had a number of cases, specifically from Polla Park. I recall there was an incident where, I am not too sure of the date, but I know that a taxi was taken into the hostel. It could have been sort of middle 1993, those were people that were from Polla Park, were actually on their way to Polla Park, but had to get off.

I am not too sure if I am explaining myself too correctly on these taxi's, because there is definitely - during those days, you couldn't get from Polla Park, straight through to Johannesburg. You had to go behind the back of Polla Park, get to Natalspruit hospital, and there you would take a taxi.

You would actually have to pass passed the hostel. There were incidents for example when people were trying to get to Johannesburg, that they would end up in the hostel. I do recall an incident, I think it was in 1993, where a taxi was actually taken into the hostel and people, some people did survive that attack. If I recall correctly, we took some statements from those people and they basically said that they were on their way to Johannesburg and they were actually taken into, if I am not mistaken it was Mshayazafe hostel.

ADV SANDI: If decisions are taken by members of a community in an open meeting, would you as a Researcher, would you be aware of such decisions?

MS SEALEY: No, I mean I did not attend public meetings in Polla Park. I assume it was a possibility that such a thing could have happened, but personally I don't have any knowledge of specific orders being given in a public meeting, no.

ADV SANDI: General counter-strategies, would that be known to you?

MS SEALEY: Can you perhaps explain?

ADV SANDI: Where people decide that they should do X, Y, Z to counter what is being done on them, would you generally be aware of such counter-strategies?

MS SEALEY: The only time I would become aware of such kind of counter-strategies, if the people ended up being arrested. Then what would happen is, one of my duties when I was working at the Independent Board of Inquiries, once a person was arrested, to actually try to find out what were they arrested for, who had knowledge of what they were arrested for and how did they get themselves into that position.

During possibly those investigations, then discover that the person claimed that they had done this on the order of a particular person or they were at a meeting and this was said. I think one of the problems is that people attended meetings, possibly they attended meetings, perhaps a general thing was made that one should defend oneself, but nothing specific, and maybe people took it upon themselves how best was the way to end up defending yourself, and perhaps also they saw what other people were doing and possibly took the cue from that, that if that person is doing that, then possibly I can follow on. Specifically I don't know, no.

ADV SANDI: Is that to say that you were not aware that there was this idea that taxi drivers should be abducted so that they could be questioned as to who was behind these abductions?

MS SEALEY: I do not specifically have knowledge about the taxi drivers, but I am aware of a case where a certain person by the name of Peter Siwasi was abducted by people from Polla Park and people from Extension 2 and the reason why he was abducted was because there was a rumour that he had been supplying weapons to the IFP.

He was abducted into Polla Park and I think eventually he was killed. I do know of a second case of a man who owned taxi's, a Paul Ngubani. The reason why he was also abducted, because during 1991 or 1992, there used to be a certain taxi owner by the name of Pete Mbele who used to drive a black Mercedes, and Mr Ngubani, unbeknown bought this Mercedes once Mr Mbele had died, and it would seem that there was a case of mistaken identity and mr Ngubani was basically taken by people from Polla Park and then he was killed, and his body was dumped behind the stadium.

I do know of those particular abductions, but not specifically related to this incident of abducting people into the hostel.

CHAIRPERSON: Mr Sibeko?

MR SIBEKO: Thank you Mr Chairman. Mr Sealey, that being the case, would I be correct if I say that it is still possible that the taxi drivers were also abducted as you have already stated that a few individuals, Mr Ngubani was abducted? It is possible that this operation might have been undertaken?

MS SEALEY: I think it is possible, but I personally don't have any knowledge of that particular decision, so to speak.

ADV GCABASHE: Did you have knowledge of this particular case before evidence was given today?

MS SEALEY: No, I had no knowledge of this specific case.

ADV SANDI: Would you generally follow cases that go to court?

MS SEALEY: Generally, yes.

CHAIRPERSON: Mr Sibeko?

MR SIBEKO: The list that you referred to to have circulated, did that list circulate around Thokoza or in Sebokeng?

MS SEALEY: No, it was a list that circulated around all the various townships that were having - you know, specifically where hostels were a problem. My understanding was that it was circulating around Soweto, the Vaal townships and as well as the East Rand townships, and not just the Katorus area, but in places like kwaThema and other areas where there were hostels.

I mean if I remember correctly, it was something like a two, three, four page list and it just had registration numbers and it was a warning on top to people using taxi's, please don't use these taxi's because there have been incidents where people have been harmed or taken into the hostel.

I don't quite know what criteria, what evidence was used to actually draw up this list, because I don't know who actually drew it up to be quite honest with you.

MR SIBEKO: Thank you Mr Chairman, I've got no further questions.

NO FURTHER QUESTIONS BY MR SIBEKO

CHAIRPERSON: Any questions, Adv Steenkamp?

CROSS-EXAMINATION BY ADV STEENKAMP: ; Just one Mr Chairman. Ms Sealey, the place where this incident occurred, was this on any of those routes that you have just described to us?

MS SEALEY: From what I understand, the incident took place on Swartkoppies Road, and that would be the route that was taken by the Faraday taxi's to Johannesburg, and they would come out of Al Road, turn left to Swartkoppies and then right onto the highway.

So it would definitely be a Faraday taxi, because they held the onus of that particular route.

ADV STEENKAMP: Am I right in saying, does that mean basically by people who were supporting the IFP or members of the Taxi Association?

MS SEALEY: I don't think it would be fair to say that the entire Faraday Association members, are members of the IFP, but there certainly were elements.

There have been a number of conflicts in Thokoza itself, between the Faraday Taxi Association and the Greater Alberton Taxi Association, which is the local Taxi Association.

There have been, I mean some of those conflicts have had a political tone to them.

ADV STEENKAMP: I know you have done some investigation into trying to get more information on the family of the victim in this matter, do you know, or do you have any information of whether or not the victim in this case, belonged to any of those Taxi Associations?

MS SEALEY: I actually contacted a Mr Syekle of the Greater Alberton Taxi Association because I know that they have a list of taxi's that are under their Association as well as a list of their members that have passed away, but he informed me that this Mr, I think the gentleman's name is Mr Dlangamandla, that Mr Dlangamandla wasn't a member of the Greater Alberton Taxi Association.

I then contacted Faraday Taxi Association and unfortunately up until now, they haven't actually got back to us, but there is a possibility that the driver in this matter, may have been a member of the Faraday Taxi Association.

ADV STEENKAMP: Thank you Mr Chairman, no further questions. Thank you Ms Sealey.

NO FURTHER QUESTIONS BY ADV STEENKAMP

CHAIRPERSON: Thank you. Any questions by the panel?

Thank you.

ADV GCABASHE: Just one question Ms Sealey. You say this would possibly then have been a Faraday Taxi, meaning that it was going towards Germiston/Johannesburg, not coming towards Thokoza?

MS SEALEY: Going from Thokoza to Johannesburg.

ADV GCABASHE: But again if it was a Faraday Taxi or if it did belong to them, no, but we have established that it did not belong to the Faraday Taxi Association, isn't that right?

MS SEALEY: We have established that he did not belong to the Greater Alberton Taxi Association, we haven't heard from Faraday yet as to whether he belonged to them.

ADV GCABASHE: Because my question was going to be, would that be the kind of taxi that would have come into Thokoza, Polla Park at any stage?

MS SEALEY: It would have been a taxi that would have gone to Natalspruit, to the taxi rank at the hospital, and then further down to - I am not too sure if I am correct here, but I think the last street in, the last stop in Khumalo Street, would be Sweet Xhosa Street.

ADV GCABASHE: So using the Khumalo route, not the Polla Park route?

MS SEALEY: (No audible reply)

ADV GCABASHE: Thank you Ms Sealey, thank you Mr Chairperson.

CHAIRPERSON: Ms Sealey, if I understood you correctly, after the establishment of the two different routes that you had referred to, the greater likelihood of taxi passengers being attacked by hostel dwellers, would be in respect of a Faraday taxi's who would often load passengers off fairly close to the hostel? Would that be a correct understanding?

MS SEALEY: That is correct, yes.

CHAIRPERSON: In respect of the local taxi's, the division was fairly clear ... (tape ends) ... those taxi's that would operate in Polla Park?

MS SEALEY: That is correct, yes.

CHAIRPERSON: And you say there seems to be a likelihood that this particular taxi was a Faraday taxi that was involved in this particular incident?

MS SEALEY: It seems to be the most likely, yes.

CHAIRPERSON: Would this kind of incident where taxi passengers were attacked, injured or killed in hostels, even if to a lesser extent, would it still have been happening towards the end of 1993, early 1994?

MS SEALEY: In fact, I recall it was still happening quite - towards the late end of 1993, the early part of 1994, I remember that we had a number of meetings with the local police station, the Thokoza police station which is just really a stone's throw away from the various hostels, and there was a request by local residents that could they not possibly post a couple of policemen at the gates of the hostels, in order that should a taxi come into the hostel and it is full of passengers, to actually off load those passengers before it came in.

Although these requests were made on a number of occasions, we never actually, they never actually put anybody at the gates, because we actually felt that that might be a way of you know, putting a stop to this problem.

CHAIRPERSON: Thank you. Mr Sibeko, any re-examination?

MR SIBEKO: None, thank you Mr Chairman.

NO RE-EXAMINATION BY MR SIBEKO

CHAIRPERSON: Ms Sealey, thank you very much, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Sibeko, is there anything else?

MR SIBEKO: That will be it for this application Mr Chairman.

CHAIRPERSON: Are you in a position to address us?

MR SIBEKO IN ARGUMENT: I may proceed Mr Chairman. Mr Chairperson, it is my submission that the applicant has satisfied the requirements of the Act in that he has informed this forum about the resolution which was taken in this meeting of the 17th of January 1994 which led to a specific incident of the 18th of January the same year, after he received an instruction or a command from his Commander together with his comrade, who ended up being his co-accused, with a specific instruction that they had to go and abduct the driver or drivers of the taxi's with the registration numbers that they were given.

Unfortunately the mission went wrong. It never occurred in that fashion, it actually led to the death of the driver. The applicant has made the required disclosure in as far as this particular incident is concerned, although no particulars of the registration numbers or the name of the driver, which is a bit, it is reasonable under the circumstances.

He has explained that it occurred in 1994 and such information, he doesn't possess any more. Furthermore he has also accepted that as a result of their conduct, it led to the death of this particular person, although it is not a requirement of the Act.

Furthermore I would state that in as far as the political motive is concerned, it is my submission that this said conduct is or was politically motivated or politically linked. Evidence has been led by various applicants in as far as the feud between the IFP and the ANC, the feud between the Xhosa speaking and the Zulu speaking people of the whole community which ultimately led to this particular incident occurring.

Here the picture is clear, the community met, it took a resolution, instructions were given to the Commander who in turn instructed the applicant. The applicant has already testified and it is already on record that they were actually carrying the orders or the instructions of their Commander when all this went wrong.

I therefore submit that all the relevant sections of the Act, have been complied with. Unless there is any specific issue which this forum would want us to deliberate on, I therefore request that the application be granted as requested. Thank you Chairperson.

CHAIRPERSON: Adv Steenkamp?

ADV STEENKAMP IN ARGUMENT: Mr Chairperson, I don't have any argument but if I could ask to be allowed to say something about the requirements of Section 19(4) regarding victims, I would like just to do so, if I can do it now.

The position regarding Section 19(4) is the following: None of the family members or the next of kin, could be traced, whatsoever. We also perused the police docket, the Bracken Downs Murder and Robbery docket. No information in the docket, related to any addresses regarding any of the victims or the next of kin.

Further inquiries were made to both the Taxi Associations and no information could be obtained from those sources as well. I would therefore submit with respect Mr Chairman, that all the reasonable steps have been taken to meet the requirements as stipulated in Section 19(4) of the Act.

Thank you Mr Chairman.

CHAIRPERSON: Is it your submission that the matter should be dealt with as an unopposed application for amnesty?

ADV STEENKAMP: As you wish, Mr Chairman, thank you.

CHAIRPERSON: I assume you won't have anything further to add Mr Sibeko?

MR SIBEKO: That is correct so Mr Chairman.

CHAIRPERSON: Have we decided on a specific time tomorrow at which we would take the argument in respect of the remaining applications, we just said we would do it in the course of the day.

I suppose it would be of some assistance to you if we do it in the afternoon or what?

MR MOPELI: Mr Chairman, if I am not mistaken, the agreed time was two o'clock.

CHAIRPERSON: That suits you?

MR SIBEKO: It suits me together with Mr Mopeli.

CHAIRPERSON: All right, we will consider this matter and postpone this matter at this stage, until two o'clock tomorrow afternoon.

We are hoping to give a decision in the matter at that stage. The representatives of the Department of Correctional Services, would ensure in the circumstances that Mr Zwayi is present at this venue tomorrow.

We will then adjourn the proceedings to take the arguments in respect of the applications that we have already heard and in all likelihood give a decision in this particular matter.

We will adjourn until two o'clock tomorrow afternoon.

COMMITTEE ADJOURNS