ON RESUMPTION
CHAIRPERSON: Good morning everybody. Today we will be dealing with the amnesty application of Mr M N Mzelemu. Before we start I'd just like to introduce the Panel to you. On my left is Judge Ronnie Pillay. He is a Member of the Amnesty Committee and he's a judge of the High Court, the Eastern Cape Division, Port Elizabeth. On my right is Mr Ilan Lax, also a Member of the Amnesty Committee. He is an attorney from Pietermaritzburg and I am Selwyn Miller, I am also a judge from the High Court in the Eastern Cape, attached to the Transkei Division.
I'd like at this stage for the legal representatives please to place themselves on record.
MS LOONAT: I am Serena Loonat and I am counsel for Msalaza Nicholas Mzelemu. Thank you.
MS JALEEL: I am Shirene Jaleel and I represent the families of the victims.
MS LOCKHAT: My name is Lynne Lockhat and I act on behalf of the Truth and Reconciliation Commission, thank you.
CHAIRPERSON EXPLAINS INTERPRETATION EQUIPMENT
CHAIRPERSON: Ms Loonat will you be calling the applicant first?
MS LOONAT: Yes, Mr Chairman.
MSALAZA NICHOLAS MZELEMU: (sworn states)
EXAMINATION BY MS LOONAT: Mr Mzelemu please give us your full names for the record.
MR MZELEMU: Msalaza Nicholas Mzelemu.
MS LOONAT: How old are you?
MR MZELEMU: 31. I was born on the 4th of May.
MS LOONAT: How many children do you have?
MR MZELEMU: Three.
CHAIRPERSON: Are you married?
MR MZELEMU: No.
MS LOONAT: Were you employed prior to this incident?
MR MZELEMU: Yes, I was.
MS LOONAT: Mr Mzelemu please tell the Committee Members what political party you belong to, if any.
MR MZELEMU: IFP
MS LOONAT: Do you have proof of membership?
MR MZELEMU: Like what?
MS LOONAT: Either a card or some kind of registration that has taken place between you and the IFP party.
MR MZELEMU: When my house was burnt, my card was burnt as well. I applied for another one but I never received that one.
MS LOONAT: But you are still a member of the IFP party, is that correct?
MR MZELEMU: That's correct.
MS LOONAT: As a member of the party what was your function and your statement?
MR MZELEMU: As a member of IFP I didn't do anything. I was in Durban and then after that I moved back home.
CHAIRPERSON: Were you just an ordinary member, you didn't hold any particular office within the IFP?
MR MZELEMU: Yes, that's correct.
MS LOONAT: How long have you been a member now?
MR MZELEMU: From 1986.
MS LOONAT: So please tell the Committee Members why you were arrested.
MR MZELEMU: Murder.
MS LOONAT: When was this murder committed and on whom?
MR MZELEMU: In 1992.
MS LOONAT: On two people, is that correct? You were charged for murdering two women, is that correct?
MR MZELEMU: I don't know their names because I didn't use the gun to shoot them.
MS LOONAT: According to the records you were sentenced to a prison sentence on two counts on the 4th May 1995 for 20 years imprisonment for the murder of two ladies. Did you know these two ladies?
MR MZELEMU: Yes, I knew them. In fact first time I knew about them was on the day of the murder.
MS LOONAT: But you don't know the two ladies personally?
MR MZELEMU: I only know them by seeing them.
MS LOONAT: When was the first time you saw these two ladies?
JUDGE PILLAY: He just said it was on the day of the murder.
MS LOONAT: I'm sorry. Please tell us, where did the murders occur, in what area?
MR MZELEMU: Dlovinga area at eSikhawini.
MS LOONAT: You say you did not commit these murders. Do you know who did?
JUDGE PILLAY: There was a question, how do you say Dlovinga?
MS LOONAT: Dlovinga.
JUDGE PILLAY: Wait, wait just go slowly.
MS LOONAT: Its on page 22, in this 4th paragraph and it's in the area of eSikhawini which is also on the next line. You say that you did not commit the murders, do you know who did?
MR MZELEMU: Yes, I would like to explain before I proceed. We arrived at that place, the three of us, to the house where this was committed. I wasn't inside the house, I only heard a gunshot and one boy ran away. I tried to shoot at this boy and then my gun wasn't working and then I asked these other guys who were with me, I asked them as to who they were shooting at and they told me that they were shooting at the family members and I asked them why they were shooting at other family members because we were there to shoot at someone, a guy belonging to that house, not other members of the family.
MS LOONAT: Who gave you instructions to go and shoot these two men?
JUDGE PILLAY: He didn't say that there were instructions to shoot the two ladies. Maybe you can clear that up first.
MS LOONAT: Mr Mzelemu ...(intervention)
JUDGE PILLAY: Let's put it this way. Why did you go to the house?
MR MZELEMU: When I was at home in the morning I was from the forest where I slept and Geza Mapoyinti came. He was together with a Shange boy called Ndjebe. Ndjebe said to me Sipho had sent them to me to fetch me back to where Sipho was at Induna's place. When I arrived at the Induna's place Sipho asked me have I heard that the boys from Sikobe had come back from Durban and I said to Sipho "No, I didn't know" but then he told me that they were back and then I asked for a bullet from Sipho and I told him that I was going there.
JUDGE PILLAY: Why did you ask for the bullet?
MR MZELEMU: I was asking for gun bullets.
JUDGE PILLAY: Why? What did you want to do with it?
MS LOONAT: Excuse me. Can I just interrupt? I'm not getting the interpretation here.
MR MZELEMU: They were not enough. I asked them because I wanted to use them.
CHAIRPERSON: Sorry, there's difficulty with the translator. Have you got channel 2? Can you hear that now?
JUDGE PILLAY: What I don't understand is that when you heard these boys had come back from Durban you immediately asked for a bullet. Was there any connection with the bullet that you asked for and the arrival of these boys back home?
MR MZELEMU: Yes there is a connection. Lindelo Cele came to me after my uncle's mother had been shot and told me that they were the ones who were involved in burning down my home and I didn't even know him before.
JUDGE PILLAY: Do I understand you correctly then that you wanted to go injure at least these boys because they had burnt your house down?
MR MZELEMU: Yes.
CHAIRPERSON: Do you know why your home was burnt down? Why would somebody burn down your home?
MR MZELEMU: No, I don't know.
JUDGE PILLAY: Did you make that decision on your own to go and shoot at them or to go to their house to at least injure them or was that as a result of an instruction from anybody?
MR MZELEMU: I will put it this way. The organisations in my area were in conflict and we were belonging to two different organisations but my aim of going there was not going to injure them, but to kill them.
JUDGE PILLAY: Did you decide that yourself, that you were going to kill them?
MR MZELEMU: We had a leader and we used to discuss various things with him. At this time he didn't send me to go and do it but then I had a gun and I knew what to do with that gun. I knew that if I was in any conflict with anyone I was going to use it to kill the person.
JUDGE PILLAY: Maybe you don't understand my question. All I want to know is the reason for you going to that house or is that a decision taken by yourself because your home had been previously burnt down, allegedly by these two people or some people. Was your trip to their house based on an instruction from anybody that gave direct instruction?
MR MZELEMU: I took the decision myself after I heard that they had arrived.
MS LOONAT: Mr Mzelemu you say that you were called to Sipho Ngcobo's house. Why were you instructed to come to his house?
On page 22, third paragraph.
MR MZELEMU: He called me to tell me that they, the guys have arrived.
MS LOONAT: And what were you supposed to do not that they have arrived?
MR MZELEMU: According to him he wanted me to be careful but since I had already taken a decision myself I wanted to go to them first and attack them.
JUDGE PILLAY: Because you thought they'd burnt your house down previously?
MR MZELEMU: Yes.
CHAIRPERSON: Sorry Mr Mzelemu. What sort of firearm did you have?
MR MZELEMU: Z 88.
CHAIRPERSON: Is that a pistol? A handgun?
MR MZELEMU: It's a 9mm.
MS LOONAT: Please tell me, did you actually go to Sipho Ngcobo's house then and did you have any discussion with them?
MR MZELEMU: Yes, I did.
MS LOONAT: And what was the discussion?
MR MZELEMU: We were talking about matters of the organisation and about the fact that we'd been attacked, as to what to do next.
MS LOONAT: And you were in the company of Mbulu and Shange at the time, is that correct?
MR MZELEMU: Yes.
MS LOONAT: Having, okay, what did you do after you had this discussion with Sipho Ngcobo?
MR MZELEMU: I left him and I went together with Geza Mapoyinti. They went to their places to go and have something to eat because they were also sleeping in the forest and I told them that we were supposed to go and attack those men.
MS LOONAT: You say, we were supposed to go and attack these men, why do you say "we"? Who made that decision?
MR MZELEMU: I made the decision.
MS LOONAT: So this is not a follow-up from the discussion you had with Sipho?
MR MZELEMU: After I had spoken to Sipho he didn't tell me to go and attack them, but he only told me that they had arrived. I told him I needed bullets and he gave me the bullets. He knew that I was going to attack those men.
MS LOONAT: What is the position of Sipho Ngcobo in that area? Is he a leader?
MR MZELEMU: His brother was a leader. He wasn't a leader but now he is a leader.
MS LOONAT: You say that you asked for ammunition and he supplied it. Did Shange and Mbulu also have firearms on them?
MR MZELEMU: Yes, they did.
MS LOONAT: So when you three went to Sikobe brothers homestead you were all armed. Is that correct?
MR MZELEMU: Yes.
MS LOONAT: And with what intention did you all go to the Sikobe brothers house, the three of you?
MR MZELEMU: To kill their boys.
MR LOONAT: What boys?
MR MZELEMU: Do was the only name I knew, the others I didn't know their names.
CHAIRPERSON: How many boys were you intending to go and kill?
MR MZELEMU: Two.
CHAIRPERSON: I just think for record purposes that Do is spelled D O.
MS LOONAT: When you got to the homestead where the two boys were supposed to be, what did you do?
MR MZELEMU: When we arrived there we found a boy who was standing at the door. I grabbed the boy's arm and I asked the boy as to where his brothers were. He told us that they were not there and I took him with us in order for him to show us the rooms and he got inside the rooms together with these two guys I was with. That's when they started firing and he came out running.
MS LOONAT: You say that you went into the rooms with this young boy?
MR MZELEMU: No, I didn't enter the room, he entered the room together with one of the boys I was with.
MS LOONAT: So where were you, what did you do?
MR MZELEMU: Outside another house.
MS LOONAT: So you say you accompanied this young boy. His name is Lendi, is that correct? You accompanied him into the house to search for the two men that you intended to kill. Is that correct?
JUDGE PILLAY: He just said that he did not. The little boy went in with two of his colleagues.
CHAIRPERSON: My note says "Well I didn't enter the room, he entered the room with one of the boys. I was outside another house." Is that what you said Mr Mzelemu?
MR MZELEMU: Yes.
MS LOONAT: Okay. You were outside. When did you return to where your two friends were?
MR MZELEMU: After I heard the gunshots.
MS LOONAT: And what did you find?
MR MZELEMU: I found out that two people had been killed.
MS LOONAT: What was your reaction to that?
MR MZELEMU: I asked as to why they were killed.
MS LOONAT: And what was the answer to that?
MR MZELEMU: They told me that they do the same thing. If they attack us they kill whoever they found in the house.
CHAIRPERSON: Did you see those two people get shot, or did you just hear gunshots?
MR MZELEMU: I only heard gunshots. The only thing I saw was the two bodies lying down, but when they were shooting at them I didn't see them but it was the two men I was with who shot them.
CHAIRPERSON: Where were these bodies, were they inside a house or hut or whatever, or were they outside?
MR MZELEMU: Inside the hut.
CHAIRPERSON: And is it correct that those two bodies you saw were the bodies of two women?
MR MZELEMU: Yes, that's correct.
MS LOONAT: Did you check to see if they were just injured or whether they were actually dead?
MR MZELEMU: I entered the hut and I realised that they were dead.
MS LOONAT: You said you were angry when you found what these, what your two accomplices had done. What did you do thereafter?
MR MZELEMU: I left and I started looking for Lendi the one who ran away, and I didn't find him, I only shot in the air. I fired one shot in the air and we left.
CHAIRPERSON: Why did you look for Lendi? What were you going to do with him if you found him?
MR MZELEMU: I was going to shoot him.
MS LOONAT: Were you alone when you went to look for Lendi?
MR MZELEMU: Yes, I was alone. I left the two men in the yard.
CHAIRPERSON: Why would you want to shoot Lendi?
MR MZELEMU: I knew that he was going to report at the police and he was going to identify me as one of the people who came.
MS LOONAT: Did you find Lendi?
MR MZELEMU: No I didn't.
MS LOONAT: You go on to say that when you left the scene you went to Sipho Ngcobo's house, why was that?
MR MZELEMU: You mean when I left Sikobe's place?
MS LOONAT: You said you left to go and meet Sipho Ngcobo. Why did you go to Sipho Ngcobo again?
MR MZELEMU: I returned there to report to him. To tell him that I didn't find the two men we were looking for, but the people whom we killed were not the people we were looking for or who we had not intention of killing.
MS LOONAT: Was he expecting you to come back and report to him?
MR MZELEMU: No, because we didn't even find him there.
MS LOONAT: What did you do thereafter?
MR MZELEMU: I went home.
MS LOONAT: Why would Sipho Ngcobo want the Sikobe brothers killed?
JUDGE PILLAY: Is that the evidence?
CHAIRPERSON: Yes he said that he was called to Sipho and Sipho told him that the Sikobe brothers were in the area, he didn't say anything further. Then he said he made up his own mind to kill the Sikobe brothers.
MS LOONAT: Okay I'll rephrase that. Why did Sipho Ngcobo tell you where the Sikobe brothers were? Why were you looking for them? What had they done to you?
MR MZELEMU: Is this question directed to me?
MS LOONAT: Yes Mr Mzelemu.
MR MZELEMU: He knew that we were targets, myself and Sithombe Ngcobo. He wanted me to be aware and if ever I wanted to do something about it or if I wasn't scared I would go and attack them first.
MS LOONAT: You say you were targets. I don't understand, targets for what?
MR MZELEMU: It wasn't the first time I was attacked, it was the usual thing.
MS LOONAT: What do you mean you were attacked? Attacked by whom and what was the usual thing?
MR MZELEMU: ANC people used to attack me.
MS LOONAT: You personally or the area you lived in?
MR MZELEMU: Me personally and the people in my area as well.
MS LOONAT: So the Sikobe brothers were ANC members, is that what you're saying?
MR MZELEMU: According to my knowledge. Ndela Cele told me so as well.
MS LOONAT: Who is Ndela Cele?
MR MZELEMU: He is also a resident of Shlovinga.
MS LOONAT: And is Shlovinga and IFP area? Is that correct?
MR MZELEMU: ANC area.
MS LOONAT: And the Sikobe brothers lived in an ANC area. What was that called?
MR MZELEMU: Yes, they also lived at Shlovinga.
MS LOONAT: So you lived side by side, IFP and ANC?
MR MZELEMU: No, I was residing at Nkulu and the Sikobe family at Shlovinga.
CHAIRPERSON: How would that area be spelled?
MS LOONAT: I'm not aware, Mr Chairman.
INTERPRETER: N k u l u
CHAIRPERSON: Thank you.
MS LOONAT: Okay just to recap. So you said that the people from the area Shlovinga area attacked the Nkulu area. Nkulu is IFP, Shlovinga was ANC.
MR MZELEMU: At Nkulu it's IFP predominant and Shlovinga it's ANC.
MS LOONAT: And the distance between the two areas?
MR MZELEMU: It's not such a distance.
MS LOONAT: You said at the outset that your house was burnt. Please can you tell us something about how that happened?
MR MZELEMU: No, I don't know. I was at Cele's family. It was New Year's Day and I only heard gunfire and my grandmother, who is my uncle's mother, was also killed. There were many and I took my gun. When I started firing back they ran away and they went straight to my home where they started burning my home.
CHAIRPERSON: On New Year's Day which year?
MR MZELEMU: If I'm not mistaken I think it was in 1991.
MS LOONAT: You say you were at Cele's family. Where was this?
MR MZELEMU: Nkulu.
MS LOONAT: What time was it when your house was burnt? Was it morning or evening?
CHAIRPERSON: I don't think it's really necessary, relevant if it was morning or evening, Ms Loonat.
MS LOONAT: He goes on to say, Chairperson, ...(intervention).
CHAIRPERSON: If you think it's relevant carry on.
MS LOONAT: I'll repeat the question. What time of the day or night was it that your house was set alight?
CHAIRPERSON: Same time as my uncle's house was burnt. It was at 12 o'clock midnight.
MS LOONAT: Did you see who actually burnt your house that night?
MR MZELEMU: There were too many, I saw others and others I didn't.
MS LOONAT: So why did you identify the Sikobe brothers in particular?
MR MZELEMU: No, I didn't see them. Lindele Cele told me so.
MS LOONAT: What did Lindele Cele tell you?
MR MZELEMU: That they were present when my home was burnt down.
MS LOONAT: And what did he tell you about the Sikobe brothers?
JUDGE PILLAY: That they were present when the house was burnt down?
MS LOONAT: You say that after the killings the police were looking for you and you fled the area. That's on page 23 the last paragraph. You also say that you did not kill anybody, so why did you flee the area?
MR MZELEMU: I was scared, I didn't want to be arrested.
I knew that I was together with the people who killed the Sikobe family.
MS LOONAT: Do you know who informed on you?
MR MZELEMU: Yes.
CHAIRPERSON: Please tell the Committee Members who it is.
MR MZELEMU: Linde.
MS LOONAT: Did he not tell them about the other two gentlemen that were with you? Were the police not looking for them as well?
MR MZELEMU: The truth is he mentioned all three of us but only the names he mentioned two, myself and the other one. he told the police and even the Court that it was me and Geza Mapoyinti and the other gentleman, he didn't know his name.
CHAIRPERSON: Were the two others, Shange and whoever, arrested and charged in respect of the killing of the two ladies?
MR MZELEMU: No. They were not arrested at the time.
CHAIRPERSON: But were they ever arrested and charged in respect of the killings?
MR MZELEMU: In 1998 Geza Mapoyinti was arrested.
MS LOONAT: On page 24 you said you wanted to avenge your grandmother's death. You say it was the ANC who were responsible for this. So what you did in retaliation, yours was a political motivation in attacking the Sikobe brothers, is that correct?
CHAIRPERSON: I think you shouldn't lead so much, Ms Loonat, let's get it from himself, rather than putting something to him and just giving a yes answer or a no answer. Rather ask a question and let's just get it from the witness himself.
MS LOONAT: When you attacked the Sikobe brothers, was it a political motivation, or was it a personal revenge?
MR MZELEMU: It was political, it wasn't personal.
CHAIRPERSON: Why do you say that it was political?
MR MZELEMU: I wasn't going to attack the Sikobe family alone, I was going to attack other members of the ANC who were involved in attacking my home.
JUDGE PILLAY: Why did you say it was a matter of avenging what they did, as you thought? If it was a purely political act, why did you say it was avenging the killing of your grandmother and the setting alight of your house?
MR MZELEMU: It is not true that I was only going to retaliate because they have killed my grandmother or burnt my house, I was going to attack any ANC member.
MR LAX: Why were you looking for them then? You weren't looking for other people, you were so angry that these women got killed. You confronted your fellow people on killing these women and you said "Why are you doing this?" You were after the two boys. That's what your evidence so far has been. That's not other people.
MR MZELEMU: Yes, that's true, I was looking for Sikobe boys.
MR LAX: Well, hadn't you told other people? Hadn't you told Cele and Shange that if they saw these Sikobe boys they must tell you they were there, so you could go and do what you had to do?
MR MZELEMU: I would like you to repeat that question for me.
MR LAX: Your evidence so far is that Shange told you these boys are back.
MR MZELEMU: Sipho not Shange.
MR LAX: I beg your pardon, Ngcobo, sorry, you're quite right. That he means he knew why you were looking for them. Isn't that so?
MR MZELEMU: That's correct.
MR LAX: And you were looking for them to get revenge because they'd attacked your family, killed your grandmother, burnt your house, isn't that so?
MR MZELEMU: That's so because I knew that they were involved in that attack.
MS LOONAT: So why did Mbulu and Shange accompany you on that day on this attack?
MR MZELEMU: They are also IFP members and neighbours as well.
MS LOONAT: So you had no personal interest in this, it was a common purpose attack on this area, is that correct?
JUDGE PILLAY: Well we don't know if his purpose and their purpose were the same. I don't think we'll ever know unless they come confirm it.
MS LOONAT: You say that when you went to attack the Sikobe house, your accomplice was wearing S A D F uniform. Were you also in a uniform?
MR MZELEMU: No, I was wearing my private clothes.
MS LOONAT: Please tell the Committee Members what transpired, or how do you feel now that the two ladies have been murdered and the men that you were really looking for, the ANC men, are still at large.
MR MZELEMU: From the day this thing happened, I was never happy. I am still not happy because I didn't want to kill the old ladies.
MS LOONAT: You wanted to kill the Sikobe brothers. You did not get them. If you are in a position, will you still be looking to kill them?
MR MZELEMU: No.
MS LOONAT: Why do you say no?
MR MZELEMU: The way I have seen things and the way I have stayed with ANC people and now I came to realise that it was wrong for us to fight each other because we can sit and talk.
MS LOONAT: Where have you stayed with the ANC people?
MR MZELEMU: Newcastle prison and Westville prison.
MS LOONAT: So in fact you're saying you're very remorseful for what has happened so far?
MR MZELEMU: Very much.
MS LOONAT: Is there anything you'd like to say to the victims' family who are present here?
MR MZELEMU: Yes.
MS LOONAT: Please say whatever you want.
MR MZELEMU: What I can say to them is that I am very, very sorry and that I will never ever again do what I've done before and if I had any strength I will do whatever they will ask of me to do and I'm only asking for their forgiveness, that's all.
MS LOONAT: I have no more questions, Mr Chairman.
NO FURTHER QUESTION BY MS LOONAT
CHAIRPERSON: Thank you. Ms Jaleel, do you have any questions you'd like to put to the applicant?
MS JALEEL: Yes, Chairperson.
CROSS-EXAMINATION BY MS JALEEL: Sir, with regards to Sipho Ngcobo, you maintain that you had a discussion with him
after you spoke to Gezama Mapoyinti and Cele. Why did you not put this discussion down in your application?
MR MZELEMU: I was going to tell the committee.
MS JALEEL: Sir, but you go on in paragraph 5 of page 22 of the bundle to say, "I did not want to (end of tape)
for the ammunition and leave.
MR MZELEMU: Would you please repeat that question?
MS JALEEL: Did you actually have a conversation with Sipho or did you just ask him for the ammunition and leave, without discussing anything?
MR MZELEMU: I had a discussion with Sipho and in fact Sipho was the one who called me and he was the one who told me that the Sikobe brothers have come back from Durban. I don't know where he got that information from.
MS JALEEL: Did Sipho Ngcobo live in this area at that point in time?
R LAX: Ms Jaleel are you talking about Mkulu or Dlivongo?
Just first ask him whereabout did Sipho Ngcobo live at that time.
MR MZELEMU: Am I expected to answer?
MR LAX: Yes please.
MR MZELEMU: Sipho was residing at Mkulu but then he was running away all the time. Sometimes he will go to Eastern Cape or he will stay there at Mkulu.
CHAIRPERSON: So when you saw Sipho that day, was he at Cele's home?
MR MZELEMU: He was at Cele's house, the Induna's house.
MS JALEEL: So it was your own evidence that you did not, or that Sipho Ngcobo was not a leader at that time but he's brother was a leader. Is that correct?
MR MZELEMU: Yes, that's correct.
MS JALEEL: So why did you discuss these matters with him?
MR MZELEMU: I don't know where the leader was, his brother, I only told the leader after the incident.
CHAIRPERSON: I think it's clear from the evidence Ms Jaleel, that he was told that Sipho wants to see him at Cele's house, so he went there and spoke to him.
MS JALEEL: If we turn to page 24 of the bundle, if we look at line 1, you, in your evidence just now, maintained that you did not know of what political affiliation the Sikobe brothers were, is that correct?
JUDGE PILLAY: No, he said he was informed that they were members of the ANC. He had heard that.
MS JALEEL: I will withdraw the question.
You also said that Sipho Ngcobo did not give you instructions to go and kill these people. You did not take direct instructions from him. Is that correct?
MR MZELEMU: Yes, that's correct.
MS JALEEL: Then how come as you go on, in line 5 of page 24
of the bundle, you say:
"we received instructions from him to kill the two Sikobe brothers, that is why I went to the Sikobe house."
MR MZELEMU: As I have already told you that Sipho had sent people to come and fetch me and I asked for ammunition from him. I told him I didn't have enough ammunition. He told me that the Sikobe brothers had arrived. If he didn't mention
this to me, no one would have died that day because we were not going to go to the Sikobe family.
MS JALEEL: But you do agree that there was no direct order?
He did not say to you go out and shoot these people. He gave you information that they were there. Did he say go out and shoot them?
MS MZELEMU: Yes, he didn't say I must go and kill.
CHAIRPERSON: I think it was quite clear from his evidence in chief that he formed that intention himself. He made the decision himself.
MS JALEEL: Is it not correct then, and I put it to you that there was no political motive for actually committing these murders, it was all purely out of revenge, because of the burning of your house. What would you say to that?
MR MZELEMU: It's not true.
MS JALEEL: But you did not receive any directives or instructions from a higher authority to go out and carry out this attack? Would you agree on that? That you did not get instructions from anybody and you were just a member of the IFP?
MR MZELEMU: Yes I do agree.
MS JALEEL: Prior to this incident, did you become active in the IFP and go out and retaliate or attack any other ANC strongholds or members?
MR MZELEMU: Yes, I've done so but most of the time we never found any people when we arrived. Yes I will go sometimes, but I didn't have a gun before and so I will go and we won't find anyone, or I won't participate.
MS JALEEL: So you have never killed anybody because of your political inclination, is that correct?
MR MZELEMU: No, I've never killed, but I don't say I wasn't going to kill. I was going to kill. I only received a gun in 1992.
MS JALEEL: No further questions.
NO FURTHER QUESTIONS BY MS JALEEL
CHAIRPERSON: Thank you Ms Jaleel. Do you have any questions Ms Lockhat?
MS LOCKHAT: Just give me a second please Chairperson.
CHAIRPERSON: Mr Mzelemu, just while we're waiting. When did this killing take place, the killing of these two ladies?
MR MZELEMU: During 1992.
CHAIRPERSON: Can you recall more or less which month it was?
MR MZELEMU: I wouldn't remember the month but I remember the year, it was in 1992.
CHAIRPERSON: Yes, Ms Lockhat.
MS LOCKHAT: No questions thank you Chairperson.
NO QUESTIONS BY MS LOCKHAT
CHAIRPERSON: Do you have re-examination Ms Loonat?
RE-EXAMINATION BY MS LOONAT: Just one question Mr Chairperson.
Mr Mzelemu, you say that you did not receive direct instructions to carry out the attack. Would you say that having attended all the discussions that you all had about IFP/ ANC problems, there was an understanding that Ngcobo knew your feeling about the ANC attack on your home? That's part of the question.
MR LAX: His evidence in chief in reply to a question from me was that Ngcobo was fully aware that he wanted revenge against these people.
MS LOONAT: The point I'm trying to make, Sir, is that although it wasn't a direct instruction it was information that he would have ...(intervention)
CHAIRPERSON: It think this is for argument because was Ngcobo in any event in a position to give instruction, he wasn't a leader at the time. Is there a difference?
MS LOONAT: He was not the leader but he was the brother of the leader and I'm just trying to see what he said about the availability of the leader himself and this is why they spoke to Sipho on the same lines as they would to the leader.
CHAIRPERSON: I think it's quite clear from the evidence Ms Loonat. Ngcobo called him to tell him that the Sikobe brothers were there. In answer to the question put by Mr Lax, Ngcobo knew that the applicant would be very interested in knowing that the Sikobe brothers were there because he had been told by Cele that they were part of the attackers on his home, so that we know already. You can ask the question.
MS LOONAT: The point I'm making is that when Ngcobo told you about the Sikobe brothers, the attack was essentially on an ANC person in an ANC camp, is that correct?
MR MZELEMU: Would you please repeat that question?
MS LOONAT: When Ngcobo told you the whereabouts of the Sikobe brothers, they were essentially in an ANC area and they were ANC members, is that confirmed?
MR MZELEMU: I wouldn't be sure, but one thing I knew and I was told is that they were ANC and that they were staying at an ANC area. This I knew from being told, not that I knew it for certain.
MS LOONAT: No further questions, Mr Chairperson, thank you.
NO FURTHER QUESTIONS BY MS LOONAT
CHAIRPERSON: Thank you. Judge Pillay, do you have any questions?
JUDGE PILLAY: No.
CHAIRPERSON: Mr Lax do you have any questions?
MR LAX: Just one question, Chairperson. If you, perhaps the interpreters could help us here. Do you have a copy of the papers there in front of you? Would you please turn to the Zulu on page 7. Just read us and translate directly for us the answer to question 11(a) and then to question 11(b). I just want to make sure the translation of the original Zulu is correct with the translation that we have.
INTERPRETER: Do you want me to ...
CHAIRPERSON: Read the Yebo in the corner, just translate that writing, do you see it on page 7, right in the bottom?
INTERPRETER: Yes.
CHAIRPERSON: Just the answer that's in the handwriting. Yebo to Ngcobo, and then the same again over the page the answer to number 11 (b), but you can leave out the address.
INTERPRETER: Oh okay. Yes, he is around his name is Sipho Ngcobo and he's the leader of the area.
I went back to him and I reported the matter to him, Sipho Ngcobo.
JUDGE PILLAY: Is there nothing about "I told Sipho Ngcobo, as our leader of our community"?
INTERPRETER: Yes. "The leader Sipho, I told him, I reported the matter. I went and reported the matter back to Sipho Ngcobo, the leader."
CHAIRPERSON: Thank you.
MR LAX: Okay. In the light of that can you just explain to us why in your actual application form you refer to Sipho Ngcobo as your leader and in, particularly with regard to question 11(a) which asks, "were these acts committed on the order of a particular person?" and you say "yes, Sipho Ngcobo, as our leader, ordered this" when in fact this wasn't the case.
Two things weren't the case. Firstly he wasn't your leader and secondly, he didn't actually order this.
MR MZELEMU: Yes, it's true. At the time he wasn't the leader, but when I fill in the application he is a leaders. I filled in the application in 97, he was already a leader, but at the when this incident occurred, he wasn't a leader.
MR LAX: The fact of the matter remains that he never gave you any instruction and you have confirmed that. Why did you say he gave you an instruction in the form?
MR MZELEMU: As I've already explained, that if he never called me to his place or to Cele's place and told me that the boys had arrived, I wouldn't have gone to that house.
MR LAX: So are you saying that because he knew about it you assume that he approved of it and therefore there was some sort of an instruction?
MR MZELEMU: Yes.
MR LAX: Thank you Chair, I'll leave it at that.
MR CHAIRPERSON: Ms Loonat any questions arising from the question put by Mr Lax?
MS LOONAT: None Chairperson, thank you,.
CHAIRPERSON: Ms Jaleel?
MS JALEEL: No.
MS LOCKHAT: No thank you Chairperson.
CHAIRPERSON: Thank you Mr Mzelemu, that concludes your testimony.
WITNESS EXCUSED
CHAIRPERSON: Ms Loonat.
MS LOONAT: I have nobody to call.
CHAIRPERSON: No further witnesses. Ms Jaleel.
MS JALEEL: I will not be calling anybody either.
MS LOCKHAT: I won't be calling anybody either.
CHAIRPERSON: That then concludes the testimony in this matter.
Ms Loonat do you have any submissions you'd like to make?
MS LOONAT: Yes Mr Chairperson.
MS LOONAT IN ARGUMENT: Mr Chairperson, Members of the Committee, my client was 27 years old, he was unemployed and his grandmother was killed by invading ANC supporters in a night raid. He was hiding in the bushes when he witnessed one of the attacks and this was on his home. His house was burnt that night whilst, as I said, he was watching from his hiding place. Fortunately his children were not at home, they were away for New Year. Imagine the mayhem it would have caused had they been there. He had already lost his grandmother. he was very heartsore and extremely angry at both losses. He says that he was informed, having had discussions with all his party
members, he was informed by one Sipho Ngcobo, that the Sikobe brothers who were witnessed as being part of the raiders that night, were now in the area. He says he was not given direct instructions, but he's not how it came about that when he was informed that they were ANC members who had raided his homestead, he together with two co-perpetrators, formed the intention to retaliate in defence of their property and their home. The two Sikobe brothers were members of the ANC.
It was in my client's testimony a politically motivated attack on an ANC homestead. Instead two innocent women were killed. He was not happy.
JUDGE PILLAY: Is that justified in terms of the Act? That they can attack households, of what they perceive to be ANC members, rather than particular people who are members of the ANC? Let's assume he'd said that the two intended victims were ANC members and were party to burning of his house and attacking his grandmother, on what basis would that be extended in terms of justification to the two old ladies who were eventually killed? What if they weren't members of the ANC?
MS LOONAT: In an attack whether it be politically motivated or otherwise, innocent people who happened to be there, are injured.
CHAIRPERSON: Did you think there would be any difference if, let's just take the scenario, if the three of them went to the Sikobe house at midnight and burnt it down irrespective of who may be sleeping in the house at the time, in other words it was an attack on the house in retaliation for an attack that had previously taken place on their own house. If you have got that situation and the two ladies died in such an attack and a situation like we have here where they go with a specific target to get the Sikobe boys and then the two colleagues of the applicant go off and shoot these two ladies in cold blood, much to his distress and dismay, is there a difference in those two scenarios, would you say or not?
MR LAX: Could I just add ...(intervention)
CHAIRPERSON: There's obviously a difference but I mean from the point of view of approaching an amnesty application is there any relevant difference between those two scenarios?
MR LAX: Could I just add this? On the evidence we've heard, does he actually associate himself with the killing of those two women? That's the first hurdle that you perhaps need to address us on, because if he does, if he doesn't is that not the end of the matter? If he does, then we go on to the next set of questions.
MS LOONAT: As I understand it he does not associate himself with the murders of the two ladies, however, he was reminded that when an attack took place upon his homestead, his grandmother was also targeted and he didn't have time with his kind of level of intelligence, although originally he wanted to disassociate himself from the murders of the two ladies, which was not the intention, having been told immediately that it happened to your home, it's not justifiable I understand that, in his mind it seemed to be okay. He tried to disassociate himself and then he got influenced again into accepting it for what had actually transpired in his own home.
Does that help in any way?
To go with two co-IFP members carrying their own firearms, he obtained further ammunition from this one Sipho Ngcobo. The purpose was to attack political opponents who were causing them grief. It wasn't the first raid on their homesteads by the ANC. As I said in warfare, be it political or otherwise, innocent people are maimed or killed. This is what happened to my client. In his personal circumstances it was his grandmother at his homestead. There was a common purpose, him and his two co-perpetrators and the targets were ANC members. My client was charged and convicted. He was present at the scene of the crime, he had the necessary mens rea, the intention to make common cause with the perpetrators. He tried to disassociate himself but did not from the common purpose. What flashed in his mind was his grandmother's death. Yes initially he was very angry to see that two women who were not targeted were killed by his co-perpetrators. He has been as honest as he possibly could in his testimony today. For the record, he conducted his own defence at the trial. He was sentenced to 20 years imprisonment. He admits that during his trial he lied because he appeared that he was the only one of the three co-perpetrators who were arrested. Today we find that an accomplice of his had also been arrested.
CHAIRPERSON: I don't think we've got any difficult subject to what we might say in our deliberations, but I'm sure we won't have any difficulty with regard to the question of full disclosure. It just relates to the political motivation.
MS LOONAT: He has expressed how remorseful he is at what has transpired. Having lost his grandmother in similar circumstances, he understands fully the pain of the relatives of the victims. He apologises for the grief that his participation has caused these families. He realises that to maim or murder cannot resolve anything, in fact it exacerbates the already volatile
situation. He has no previous convictions, he was and still is unemployed and he has three children to support. Financially he is a man of straw so he cannot even begin to think how he could repair the material damage these killings have caused the families of the victims. He is not very educated but he has vowed never to resort to criminal deeds to get his political points across. Instead he has learned in prison in Newcastle and Westville, that to reach out and discuss and educate themselves in party politics is the best stance to take. He understands that resorting to physical violence achieves nothing except what he has got, a 20 year conviction for murder. Thank you.
CHAIRPERSON: Thank you Ms Loonat.
Ms Jaleel, do you have any submissions you'd like to make?
MS JALEEL IN ARGUMENT: Yes, Chairperson. Thank you.
Mr Chairperson, Members of the Committee, my learned colleague, it is submitted that the murders were committed as a result of revenge sought for the burning of the applicant's grandmother's house. The applicant did not go out with the intention of killing ANC members, he had a target and the target was the Sikobe brothers for, as we said, the burning of the grandmother's house. There was no political motive to this.
The applicant uses Sipho Ngcobo and he endeavours to substitute him and to make us believe that Sipho Ngcobo was a leader at that time. Yet, in his own evidence he tells us that Sipho Ngcobo was not a leader, if anything he was just the brother to the leader. He was never active before. In his own evidence the applicant has informed us that he was an IFP member from 1986, but he had never committed any murders, he's never attacked anybody prior to this particular attack and there again he waits for an incident to occur so that it actually is tantamount to revenge and not political motive. It is blatant without going further into all of this that this forum is not the correct forum, that he ought not to be sitting here because there is no political inclination, he hasn't even shown a strong political affiliation to the IFP. He was a supporter not even a member, he was not a card carrying member.
CHAIRPERSON: He said he was but the card got burnt in the house. In any event you don't have to be a leader to get amnesty, many of the applicants in these sort of matters are just ordinary members, most of them aren't even members but supporters. So that is not really a point in fact that he was just a supporter or an ordinary member.
MS JALEEL: I will withdraw that. It is blatant throughout that he did not receive instructions from no person. Yes he was informed that the Sikombe's were back but the reason for that information was because the Sikobe's were apparently or allegedly tied or linked to the burning of this house. It is our submission then, that there has been no political motive that has been proven beyond a doubt and therefore, on behalf of the families of the victims, I have been instructed to oppose this application for amnesty. Thank you.
CHAIRPERSON: Thank you Ms Jaleel. Do you have any submissions Ms Lockhat?
MS LOCKHAT IN ARGUMENT: Chairperson I agree with my learned colleague Ms Jaleel and I move that amnesty be refused for Mr Mzelemu on the basis that firstly, he wasn't around when the incident occurred where his house was burnt. He didn't see or witness anybody, he only heard through someone else that these two Sikobe brothers were there at that time. He later got instructions to go to Sipho Ngcobo's house. Sipho Ngcobo never informed him to go out and kill these people as stated in his amnesty application form but instead I think Sipho Ngcobo just wanted to warn him and tell him that they are in the area and he must probably watch out. I think that could have been one of the,
which was the applicant's evidence previously. But instead he took it upon himself, made his own decision to go out and actually kill these two people on very flimsy information actually, that they were the people that were involved in burning his house and killing his grandmother.
He further disassociates himself with the murder of these two innocent women. He doesn't know whether they were ANC members, he didn't know their political affiliations, but yet they were killed by his two co-perpetrators. He still goes on further in the papers before us that he would have killed the innocent Linde ...(intervention).
CHAIRPERSON: Well he said so in evidence. Because he could identify him.
MS LOCKHAT: That's right. Because he could identify him. Also just on that basis, so there again it's just another revenge and for his own personal gain, not to have been arrested in this incidence.
Mr Chairperson it is my submission that the applicant had no political motivation, it was purely a revenge attack on the innocent Sikombes and I move that the application be refused on that basis. Thank you Chairperson.
CHAIRPERSON: Thank you. Do you have any reply Ms Loonat?
MS LOONAT: Yes Mr Chairperson. I just wish to clarify the point that it was submitted that my client did not take part in attacks on ANC.
CHAIRPERSON: Yes, he did say, we know he did say he went but he was unarmed. He never killed anybody but he ...
MS LOONAT: He would have if he had an opportunity.
CHAIRPERSON: Yes and they went looking for people but didn't find them, that sort of thing.
MS LOONAT: And finally, Sipho Ngcobo, in his mind, he admits is the brother of the leader, but in his mind he looked upon him as the future leader, which he is now. So therefore, the fact that he, Sipho, provided him with ammunition, having called for him Sipho was fully aware of what he was going to do and I feel that the fact that he came back looking for Sipho to report to him, in my client's mind he was some sort of a leader, giving instruction and tacitly encouraging him to go and attack an ANC opponent. That's all I have to say. Thank you.
CHAIRPERSON: Thank you. We'll reserve our decision in this matter and hand it down as soon as possible. That then completes the roll, Ms Lockhat.
MS LOCKHAT: That is indeed correct, Chairperson.
CHAIRPERSON: Before we adjourn, I'd just like to thank the church for making this very nice venue available to us. I'd like to thank the sound technicians for the work they've done and the interpreters for the hard work that they have done. Thank you very much. The Correctional Services people for ensuring that the applicants were brought on time everyday, it is much appreciated. Thank you very much. And also to the witness protection people, Joe Japhta, the logistics officer who always looked after us so well, Ms Lockhat who prepares all the documents and sees that everything runs smoothly, the briefers, the legal representatives and the caterers. I'm sure I've put on a few kilograms around my waist at least. Thank you very much to everybody and if I've omitted anybody including the man with the television set in front of us, than you very much. We will now adjourn.
HEARING ADJOURNS
