MR DEHAL: Mr Chairperson, Ngcobo's statement has been handed around and I presume everybody has got a copy.
CHAIRPERSON: Yes. I think he should be sworn in, Mr Dehal. We'll now commence the amnesty application of Mr Vivian Bhani Kwenzo Kwahke Ngcobo.
VIVIAN BHANI KWENZO KWAHKE NGCOBO: (sworn states)
CHAIRPERSON: Thank you. Mr Dehal?
EXAMINATION BY MR DEHAL: Thank you, Sir.
Mr Ngcobo, is this your statement that was recently prepared, duly assisted by members of my office and is that the one that you have signed?
MR NGCOBO: Yes.
CHAIRPERSON: We'll refer to the statement, Mr Dehal, as Exhibit A.
MR DEHAL: Thank you, Sir.
CHAIRPERSON: Thank you.
MR DEHAL: And Mr Ngcobo, is it correct that you've signed this statement confirming the correctness thereof, and signed this yesterday, correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: This you regard as having the basis for your amnesty application, is that correct?
MR NGCOBO: Yes.
MR DEHAL: You are basically applying for amnesty on one count only, a count in regard to which you had featured at a meeting when shots were fired and two people came to be killed, correct?
MR NGCOBO: Yes.
MR DEHAL: And it so happened that a third person was injured, but as per the details in the trial transcript, that third person appeared to have moved in the last minute and was caught in the crossfire, but you were not convicted of that, is that correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: I see that you've got plain clothes on, you're not in prison at the moment are you?
MR NGCOBO: I am in prison.
MR DEHAL: I see. But you were convicted by Judge Hugo in that matter and sentenced - I don't see the sentence, oh sorry here it is ...(intervention)
CHAIRPERSON: He's put it - yes, on page 16 he says 25 years, probably the effective term.
MR DEHAL: Thank you. Mr Chairperson, in our desire to be as expeditious as possible, I do not want know to read this in, I must say that this applicant however was intent on reading it in. Mr Malan seems to think we should rather just hand them in and have them confirmed, I have no difficulty with that, the only reservation being I think this applicant wanted the people in the crowd to hear him.
CHAIRPERSON: Well you can highlight any points you want from it, Mr Dehal.
MR DEHAL: Yes.
MR PANDAY: Sorry, Mr Chairman, if I may just comment. Mr Chairman, for the purposes of clarity and preventing mishaps, having regard for the fact that these papers were prepared on urgency of basis, I think it would be advisable that the applicant actually read in this affidavit and if there are any discrepancies he may remedy them.
CHAIRPERSON: Or else Mr Dehal can read it and get the applicant to either confirm or change, whatever he wishes.
MR MALAN: Mr Dehal, just a question on paragraph 4, you refer to the date 1981, I assume that must be 1991, if I look at the date of birth of the applicant and his reference to the contents of that. Could you just check that.
MR DEHAL: Do you mind? I thank you for bringing that to my attention, I actually didn't dictate this, so I can I just confer with those who did it? Bear with me.
MACHINE SWITCHED OFF
CHAIRPERSON: I think, Mr Dehal, what can happen is when you're going through the statement with your client, you can specifically draw him and ask him whether it's 1981 or 1991, after all it's his statement. And if it is 1991 instead of 1981, we'll understand that it was a typing error.
MR DEHAL: Thank you, Chair.
Mr Ngcobo, is it then correct that in your statement you say in paragraph 1, that you're an adult male born on the 2nd of February '68, unmarried and resident N363, Umlazi Township, P O Ntakazweni, correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: You said that you're currently detained at Westville Prison, with your prison number recorded there and detained at Medium B cell, 306, and that you've been sentenced for two counts of murder.
MR NGCOBO: Yes.
MR DEHAL: You were born and brought up in the area known as Engonyameni.
MR NGCOBO: Yes, I grew up Engonyameni.
MR DEHAL: Then look at paragraph 4, in paragraph 4 you say
"In the year 1981, my uncles Keshla Cele brought literature to my pertaining to ANC policies."
Would that be 1981 or could that be 1991?
MR NGCOBO: It started in 1981.
MR DEHAL: You say you read the literature, you were impressed, you realised that this is the organisation you preferred, namely the ANC, you then began to attend regular meetings at the Umlazi grounds, you were getting ready to be trained as an ANC cadre, you liked the aims of the ANC, as they were helping the black people in the country, they were not fighting amongst the blacks, they wanted the blacks, that's the ANC wanted the blacks to unite and to free the people. Your uncle was arranging for you to be recruited in MK and that you made an application and received a card as an ANC member. You also embraced the ideals of the armed wing of the ANC, MK, and aligned yourself to the call of the President of the ANC, for all South Africans to embrace MK and to work together to free the oppressed black masses, correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: Then in paragraph 5 you say that in 1992 there was a lot of violence in the Engonyameni area, in that members of the Inkatha Freedom Party were becoming violent and killing members of the ANC. During this violence many of your family members were shot dead, namely your grandfather, Buthelezi and Keshla your uncle, Zungu your neighbour and Kuzwayo, your other neighbour.
You were perturbed by this violence, you were also annoyed that during this time of the violence, Mbukazi who was the Induna in the area, requested you not to fight, you and others not to fight. However you did not worry about the members of the IFP coming to kill you and others, nor did Mbukazi stop them from fighting.
Shandu was always joined with Mbukazi and helped him with his cause. The police were not helping as they were helping members of the IFP. Correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: Then you say that in 1992, your house together with various other homes in the neighbours(sic) were damaged, during about 21st March '94, Sadam and one, Mashelela Kwela, came to you and was also told that Mbukazi, Shandu and Cele were going to be present at a meeting to be held, correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: You then deal in paragraph 7, with you having attended that meeting where you saw Shandu and Mbukazi arrive with others, that by that time you had already had a firearm in your possession, that this firearm had been obtained from Mashelela Kwela, who was the Commander of your MK Unit. The firearm you obtained on the 21st of March, before you even got to know of the meeting. The firearm was given to you to protect yourself and to protect the community, either as an SDU member or MK operative, correct?
MR NGCOBO: Yes.
MR DEHAL: Then in paragraph 8 you say that at the meeting you noticed Mbukazi in a crowd of people, together with Shandu, you immediately fired at him, you fired two shots at Mbukazi and one at Shandu. Then there were many shots fired as there were other members of the ANC who began to shoot at members of Inkatha, you then returned home.
MR NGCOBO: Yes.
MR DEHAL: In paragraph 9 you say you tried to return the firearm to Kwela, but you could not find him. Agreed?
MR NGCOBO: Yes.
MR DEHAL: In paragraph 10 you say - a few days later you went to Mr Mkhize's house with your friend Nunu, to apologise to Mr Mkhize as you did not, or you and the others did not intend to injure him. He was the one who supported the ANC and your targets were Mr Shandu and Mr Mbukazi. Correct?
MR NGCOBO: Yes, that's correct.
MR DEHAL: Now this is the Mkhize who was caught in the cross-fire and in regard to whom you were charged but you were acquitted, correct?
MR NGCOBO: Yes.
MR DEHAL: Sorry, if you'll bear with me.
Just to refresh your memory, on page 10 of the judgement - sorry, page 40 of the bundle, the judge says in regard to this, which is the second paragraph, beginning at line 12 -
"As for count 3, we find that it has not been proved that the injuries suffered by Mr Mkhize was inflicted by the person attempting to murder him. It is in our view a reasonable possibility that the person taking aim at Mr Shandu, was inaccurate in his aim and that he failed to realise that the shot aimed at Mr Shandu might also glance off Mr Mkhize. It might also be that Mr Mkhize moved a few centimetres, necessary to bring him into the line of fire at the very last moment. We therefore do not find that the State had proven attempted murder on count 3."
Do you remember that?
MR NGCOBO: Yes, I do.
MR DEHAL: Now I take you to paragraph 11 of your statement. In paragraph 11 you deal with how deeply sorry you are for having killed Mr Shandu and Mr Mbukazi. You say that the only reason that they were killed is because of the ongoing violence in the area and that they were encouraging the members of the IFP to kill members belong to the ANC, and you and others were not being assisted by the local police or the local Chief and that you had to defend the ANC community members and yourselves. The two deceased were always correctly viewed and accepted as legitimate targets of the ANC, correct?
MR NGCOBO: Yes. Then finally, you end up by saying that you wish to reconcile with members of the Shandu and Mbukazi family and that you accordingly apply for amnesty for their killing, is that correct?
MR NGCOBO: Yes.
MR DEHAL: Mr Chairperson, that's the evidence, thank you.
NO FURTHER QUESTIONS BY MR DEHAL
ADV SANDI: He's not applying for amnesty in respect of the firearm as well? It goes without saying.
MR DEHAL: I see that he was charged with unlawful possession of the arm and ammunition, I don't really know whether he was convicted on it.
ADV SANDI: He was acquitted yes, it says on page 41.
CHAIRPERSON: Mr Panday, do you have any questions you'd like to put to the applicant?
CROSS-EXAMINATION BY MR PANDAY: Yes, Mr Chairman.
Mr Ngcobo, how long were you in association with Mr Kwela?
MR NGCOBO: He arrived in the place in 1990, we started knowing each other in 1992.
MR PANDAY: And what was your association with him?
MR NGCOBO: He was a member of the ANC and I was also a member of the ANC.
MR PANDAY: Now are you also familiar with the name Msomi?
MR NGCOBO: Yes, that's a surname.
MR PANDAY: Who is Msomi, or how do you know Msomi?
MR NGCOBO: His name is Silwani Msomi, he was a resident at Cele(?) area and he was the member of IFP.
MR PANDAY: Tell me, isn't it correct that Msomi and Kwela were in the taxi business?
MR NGCOBO: The only knowledge that I have is that Msomi was in the taxi industry, I don't know about the other one.
CHAIRPERSON: So what are you saying Mr Ngcobo, that Mr Kwela may have been in the taxi business but you don't know it, you're not denying that he was in the taxi business? Or are you denying that he was in the taxi business?
MR NGCOBO: I don't have full knowledge because all I know is that he didn't have a taxi.
ADV SANDI: Do you know if he was involved in any type of business other than the taxi industry?
MR NGCOBO: He was working and his father had a sugarcane field.
MR PANDAY: Mr Ngcobo, I have members from the family of the victims that will testify here today that Kwela and Msomi were both involved in the taxi business in Isipingo. Would you be able to dispute that?
MR NGCOBO: No, I wouldn't be able to do so because I didn't have full knowledge of that about him.
MR PANDAY: They will further testify that there was a rival between these two people, Kwela and Msomi, and that this rivalry was taken from Isipingo into the Engonyameni area. Would you be able to dispute that?
INTERPRETER: What's the name of the other area, from Isipingo to ...?
MR PANDAY: Engonyameni. I think I'm pronouncing it right.
CHAIRPERSON: It's the one - if you've got the statement of Mr Ngcobo, it's the name that appears in paragraph 3. Is that right? Engonyameni.
CHAIRPERSON: Mr Ngcobo, the question was ...(intervention)
MR NGCOBO: I don't have that knowledge that the rival came from Isipingo to Engonyameni, because when Kwela arrived in the area there was no fight, it started later. And when the fights started we went to the Induna.
MR PANDAY: What fights do you refer to, Mr Ngcobo?
MR NGCOBO: When we were attacked in the area in 1992.
MR PANDAY: Now were you aware that Msomi was also in the area in 1993/1994?
MR NGCOBO: Yes, 1992, 3 and 1994, he was in the area.
MR PANDAY: Now Mr Ngcobo, you mention in your affidavit that the Induna, Mr Mbukazi, was known to Shandu, how did you know of their relationship?
MR NGCOBO: Mbukazi and Shandu knew each other. We didn't know Shandu in the area, we only became to know Shandu because he was together with the Chief, Mbukazi.
MR PANDAY: Now do you know that Shandu was there from a peace-keeping organisation?
MR NGCOBO: I heard like that, but he had arrived for three days and usually before, on other occasions when he arrived, after that we will be attacked. So on that occasion he had been there for three days.
MR PANDAY: You see, Mr Ngcobo ...(intervention)
CHAIRPERSON: Sorry, Mr Panday, if I could just get this cleared up.
Sorry, what you're saying, you're saying you got to know Mr Shandu when you saw him in the company of Mr Mbukazi in your area, is that right?
MR NGCOBO: I saw him when he came with Mbukazi, when he was injured or when he was killed.
CHAIRPERSON: Was that the first time that you saw Mr Shandu, the time that he was shot at the meeting in January 1994?
MR NGCOBO: Yes, it was my first time, I only heard before that he'd usually come to the area, but it was my first time seeing him.
CHAIRPERSON: You only heard, who did you hear from?
MR NGCOBO: People who went to meetings like Mashalele and Sadam.
CHAIRPERSON: And did they mention - those people whom you'd hear from, did they mention Mr Shandu by his name, or did they say well there is this peace-keeper, or did they say Mr Shandu?
MR NGCOBO: They said there was a man who was seen together with Mr Mbukazi.
CHAIRPERSON: So you didn't know his name even, before the time that you shot him?
MR NGCOBO: No, I didn't know his name and also I didn't even know his face.
CHAIRPERSON: So how did you know who to shoot at at the meeting, other than Mbukazi?
MR NGCOBO: Yes, it was Mbukazi whom I knew. The reason Shandu was shot at is because he was with Mbukazi.
CHAIRPERSON: Mr Panday.
MR PANDAY: Mr Ngcobo, you say the reason Shandu was shot was because he was with Mr Mbukazi, now ...(intervention)
MR NGCOBO: Yes, it was because he was with Mbukazi and I drew the inference that if he is with Mbukazi, then he was also an IFP member.
MR PANDAY: Any reason why Cele was not shot?
MR NGCOBO: He wasn't present and also usually whenever there were meetings, Cele wouldn't go to those meetings.
CHAIRPERSON: Sorry Mr Panday, if I could just, while we're on this point.
Were there a number of people at that meeting, a large number of people?
MR NGCOBO: No, it wasn't a large number of people, even though there were a quite a number of people.
CHAIRPERSON: What would you say, if you take a look at the people sitting in this hall now, was it the same amount more-or-less or was it more people or less people?
MR NGCOBO: More.
CHAIRPERSON: More people. Yes, I don't know how many can be counted but there's approximately 20/25 people in the hall. And was this meeting inside, inside a structure, a building, or was it outside?
MR NGCOBO: Outside.
CHAIRPERSON: Now weren't all those people together?
MR NGCOBO: They were together there in that vicinity, but they were not coming from one place.
CHAIRPERSON: And who came with Mr Mbukazi then?
MR NGCOBO: It was Mr Shandu and Mr Gumede and I think Mkhize as well.
CHAIRPERSON: So a group of about four of them came, Mbukazi and about three others?
MR NGCOBO: Yes, even though I'm not certain, there can be four or six.
CHAIRPERSON: Sorry, what was the meeting about, what was the subject of the meeting, what was the business of the meeting?
MR NGCOBO: Nobody explained to us about the meeting, but we knew that, or we had a problem, we as the community, that the Chief didn't want to meet with the community and the community wanted to meet with the Chief to place their grievances, but he never gave himself a chance to meet with the community.
CHAIRPERSON: Mr Panday?
MR PANDAY: Mr Ngcobo, isn't it correct that this meeting was being held solely for the purpose of sorting out the rivalry between Msomi and Kwela and this was not political?
MR NGCOBO: I wouldn't know, all I know is that in that area we were surrounding by political violence.
CHAIRPERSON: Yes, but was there also a taxi violence?
MR NGCOBO: No, there wasn't any taxi violence and taxis would drive past anywhere and one would never hear that a taxi had been shot at.
MR PANDAY: Did you drive a taxi, Mr Ngcobo?
MR NGCOBO: No.
MR PANDAY: Now Mr Ngcobo, Mr Shandu only attended - and the family will testify he only came to this are in 1994, to attempt a peace settlement between the Kwela and the Msomis. The family will further testify that on the day he was shot, the meeting hadn't taken place as yet, they were merely seeking a venue for this meeting to take place. Isn't that correct?
MR NGCOBO: I wouldn't know, but all I knew before is that the meeting was going to take place in that area where I went.
CHAIRPERSON: Did Kwela tell you about the meeting?
MR NGCOBO: Sadam and Kwela.
MR PANDAY: Now Mr Ngcobo, do you recall your trial?
MR NGCOBO: Pardon?
MR PANDAY: The trial that you stood, do you recall that trial?
CHAIRPERSON: When you were in court, your case.
MR NGCOBO: Yes, I do remember event though I don't remember the date and the day.
MR PANDAY: Do you recall telling the court that you were forced to attend this meeting?
MR NGCOBO: I don't understand how forced I was.
MR PANDAY: In your evidence you mentioned that you were forced by Vusimuzi Mkhize, to attend this meeting.
MR NGCOBO: Yes, he told me that I was supposed to be in that meeting to protect our community in our area.
MR DEHAL: Sorry, can we just get the reference in the bundle to that.
MR PANDAY: Sorry, it's on page 36, two lines above the line 25 mark.
MR DEHAL: Thank you.
MR PANDAY: So you admit that you were forced - you mention that you were forced to attend this meeting. Now ...(intervention)
MR NGCOBO: No, I wasn't forced, I was told that I should be there since I was one of the persons who were protecting the ANC and the community.
MR PANDAY: Now why should you be at this meeting, what was the reason for you to be at this meeting?
MR NGCOBO: I was guarding the community, that was my duty, and also to defend and also to protect the elderly and the females in the area.
MR PANDAY: But Mr Ngcobo, wasn't this meeting a peace meeting to be held?
MR NGCOBO: I wouldn't know, but we were told before that, or in other occasions we had experience whereby a community had been told that there will be a peace meeting and when we attend only to find out that members of the community will be attacked.
CHAIRPERSON: Yes, but were you told in this instance that it was going to be a peace meeting? Although what you've told us now that you didn't trust peace meetings, but were you told that it was a peace meeting?
MR NGCOBO: No, we were not told, we were only told that the meeting was about bringing the Chief closer to the community so that the community places their grievances to the Chief.
MR PANDAY: Now Mr Ngcobo, on your affidavit, the Annexure A, on page 2, paragraph 5, is it correct that even in 1992, that the Chief was still Mbukazi?
MR NGCOBO: No, Mbukazi wasn't a Chief, Mbukazi was an Induna. The Chief was Mr Cele.
MR PANDAY: So since 1992, Mr Mbukazi was the Induna, now if he was responsible for allowing the violence on the ANC members from 1992, why only in 1994 you decide to attack him?
MR NGCOBO: Before then there was another Induna who played an effective role, he will speak to Mbukazi and to Cele and then that Induna left that post and joined the taxi industry. We only learnt later that Mbukazi was not prepared to help us, but he was prepared to help the IFP, because sometimes he will force the community to attend IFP meetings and sometimes people will be killed in masses, then we realised later that he was the one behind this.
MR PANDAY: You see, Mr Ngcobo, the family thinks otherwise and one of the members will testify that firstly, namely the son of the Induna Mbukazi, that everyone in the community knew that a peace meeting was to held because the Kwelas and the Msomis were fighting and that fight was a faction fight over the taxi problems, now how is it that you know make it seem that Kwela was in fact having a political agenda as opposed to a taxi faction?
MR NGCOBO: The reason I'm saying so is because we were attacked and we were continuously attacked by IFP, and my first association with Kwela was because he was an ANC member.
MR PANDAY: Did Kwela know Mr Shandu?
MR NGCOBO: I wouldn't be certain about that, maybe it may happen so because Shandu was also from Embombolu.
MR PANDAY: Now Mr Ngcobo, I'm going to refer you to the judgment on page 31 and on the first five lines, now the first five lines the judge points out that there was a faction between the two gangs, they refer to the Kwelas and Msomis as gangs. Now you maintain that you were in association with Kwela all the time, how is it that you did not know of this faction?
MR NGCOBO: The reason I don't know, it's because you're saying the friction was caused because of taxi violence. All I know is that Msomi attacked Kwela. In fact, Kwela was not the only one who was attacked by Msomi, Msomi attacked a number of others. We also requested protection from the Nduna, but we didn't receive it.
MR PANDAY: But isn't it correct that the Induna was going to try and have a peace meeting to solve this problem?
MR NGCOBO: Which problem are you referring to now?
MR PANDAY: This problem between the Kwelas and the Msomis.
MR NGCOBO: I wouldn't say it was between the Kwela and Msomi, because Msomi didn't just attack the Kwelas but he attacked quite a number of other families, that's when we realised that this was real bad because even the ZPs were brought.
CHAIRPERSON: Are you saying, Mr Ngcobo, that Msomi attacked Kwelas and other families and Kwela was just an innocent victim, he didn't hit back?
MR NGCOBO: He tried to retaliate in his own way and after that the Induna, the other Induna requested him not to fight again because he was going to speak to Mbukazi about this and then later Cele told us that why would we sit back if we are being attacked, we must also attack.
CHAIRPERSON: So there were then attacks and counterattacks with the main role-players being Msomi on the one side and Kwela on the other?
MR NGCOBO: I wouldn't say no on that, it was like that and also Kwela attacked as well.
CHAIRPERSON: Mr Panday?
MR PANDAY: Mr Ngcobo, you mentioned that Mr Shandu lived in the Embombolu area, is that correct?
MR NGCOBO: I learnt so, even though I'm not sure where in Embombolu.
MR PANDAY: Firstly, who told you so?
MR NGCOBO: I only learnt about this in the area, that Shandu was from Embombolu.
MR PANDAY: You see Mr Ngcobo, namely the daughter of Mr Shandu, will testify that Mr Shandu was from Umlazi. Now who ...(intervention)
MR NGCOBO: Yes, he was staying in Umlazi but he is originally from Embombolu, this is where he was born.
MR PANDAY: Now how do you know he was staying in Umlazi?
CHAIRPERSON: Sorry, I didn't hear that question, if you could just repeat it please.
MR PANDAY: Yes, Mr Chair, it's how does he know that Mr Shandu is from Umlazi.
MR NGCOBO: I only learnt about this after he was killed.
MR PANDAY: You see Mr Ngcobo, now that you relate yourself to Kwela, it turns a different light on your political actions because the family and the members of the community know that there was this ongoing violence between the Kwelas and the Msomis and that this violence shifted from the Isipingo taxi rank to the Engonyameni area. Now it is my respectful submission and I put to you that you were actually part of the gang of Mr Kwela and not a member of the ANC body, as you put it. Can you comment on that?
MR NGCOBO: Yes. I was not a friend of Kwela. The reason I became known to Kwela, it was because of the violence in the area and also that he was an ANC member and when they were attacking us they didn't attack us as taxi people, but as ANC.
MR PANDAY: When was it that you first made contact with Kwela, how did you come into contact with Kwela first?
MR NGCOBO: I wouldn't be able to remember the date or the month, but when I first met him it was in - when we first started working together it was in 1993, but I first met him in 1992.
MR PANDAY: And how did you know that he was an ANC member?
MR NGCOBO: I learnt this from other people and also he told me, and he also showed me his membership card.
MR PANDAY: Now you say you learnt it from other people, now when did you learn this from people, what year did you learn this from other people?
MR NGCOBO: Late 1992, and this was the period when the ANC members were being killed.
MR PANDAY: Mr Ngcobo, lastly, I'm going to put it to you that this was not a political violence attack, this was merely an attack on two parties that were attempting to bring peace to the land, that was being caused by a taxi rivalry and you now by association with Kwela, and in fact this in Exhibit A of yours, actually ties up the loose end in terms of the judgment that was delivered, where they emphasise the point that it was a gang violence, which is the Kwela/Msomi. You actually tie up the loose end in terms of your association as to what led to the killing of these two people and that killing was not political at all. Can you comment?
MR NGCOBO: Yes, I would like to comment. I never associated myself with any taxi businesses and if I knew at the time that he was in the taxi violence, then I wouldn't have associated myself with him. I only associated myself with him because of politics.
MR PANDAY: Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Thank you. Ms Thabethe, do you have any questions you'd like to put to the applicant?
CROSS-EXAMINATION BY MS THABETHE: Yes, Mr Chair, thank you.
Mr Ngcobo, you've given evidence that there was fighting between Kwela and Msomi, what was the fighting about or what were they fighting for?
MR NGCOBO: I wouldn't be able to know because it was never ascertained, but what I ascertained was that they were killing comrades. Why comrades were being killed, I also didn't know, all I know is that IFP and the ZPs were killing the comrades.
MS THABETHE: So if I understand you correctly you are saying you don't know why they were fighting ...(intervention)
CHAIRPERSON: Sorry, Ms Thabethe, I didn't hear it, if you could just repeat the question.
MR NGCOBO: Yes, I didn't know why they were fighting, but all I know is that they continued to kill people and they claimed that they were killing comrades.
MS THABETHE: Did Mr Msomi belong to any political organisation?
MR DEHAL: Sorry, Mr Thabethe ...(intervention)
INTERPRETER: Chairperson - yes.
CHAIRPERSON: Ms Thabethe, the translator was still talking.
MS THABETHE: Yes, sorry.
CHAIRPERSON: If you could just repeat your last question, the one that you've just mentioned now.
MS THABETHE: Did you know which, if Mr Msomi belonged to any organisation?
MR NGCOBO: I discovered when they were killing us that he was an IFP ...(intervention)
MS THABETHE: Then how did you know this? How did you know this?
MR NGCOBO: When he was with the ZPs and they were attacking comrades and he was claiming that he was killing comrades.
MS THABETHE: Now you've given evidence that Mr Mbukazi tried to resolve the issue by first going to the Inkosi and then later arranging a meeting, correct?
MR NGCOBO: Would you please repeat that for me.
MS THABETHE: That Mbukazi tried to resolve the situation by first going to the Inkosi and then later arranging a meeting.
MR NGCOBO: It wasn't Mbukazi, it was another Induna, the Induna for the boys. He's the one who tried to speak to Mbukazi first and then to the Chief. After that, Mbukazi tried to speak exactly like the Chief.
MS THABETHE: And that is why Mbukazi decided to call Shandu to have a meeting, is that correct? Just yes or no.
MR NGCOBO: I wouldn't know that. The Chief was present and the Councillors were there and the community and also another Chief from the Numbela area. They all wanted this thing to be solved, but then the problem was with Cele and Mbukazi.
MS THABETHE: I'll leave this for argument because I thought your evidence was that Mr Mbukazi first went to the King and thereafter, after the King did not want to involve himself, then he arranged a meeting. I thought that was your evidence.
MR NGCOBO: The Induna Cele took Mbukazi to the Chief and the Chief said he was busy. After that they couldn't speak to the Chief.
MS THABETHE: I want to turn to Annexure A, paragraph 6, page 2 ...(intervention)
CHAIRPERSON: Exhibit A?
MS THABETHE: Exhibit A, paragraph 6.
... where you've indicated that a month before the elections, Mr Kwela and Sadam came to you to tell you that Mbukazi, Shandu and Cele were going to be present at a meeting. Did Kwela tell you what the meeting was going to be about?
CHAIRPERSON: Or Sadam.
MS THABETHE: Yes. Did any of them tell you what the meeting was going to be about?
Thank you, Mr Chair.
MR NGCOBO: No, they didn't explain to me, but all I knew at that time was that people wanted the Chief to come and address them because the community was facing a problem and every time whenever they reported their problems to the ZPs, the ZPs didn't do anything about it. Therefore, the community wanted the Chief to come and address them.
CHAIRPERSON: Sorry, Ms Thabethe.
Did Kwela say that he was going to go to the meeting himself?
MR NGCOBO: Yes, he did, he said he was supposed to be in that meeting, but then he also said it may happen that he won't be there but if he wasn't there he will send someone.
MS THABETHE: I'm getting a bit confused, Mr Ngcobo, my question was, did Kwela tell you what the meeting was about and I'm not sure what you're response was. Are you telling me what you thought the meeting was about, or are you telling me what Kwela told you what the meeting was going to be about?
MR NGCOBO: Would you please repeat your question.
MS THABETHE: In response to my question as to did Kwela tell you what the meeting was going to be about, you responded and then my question is, was your response what Kwela told you about or it's what you thought the meeting was going to be about.
MR NGCOBO: What I heard was that there's be talks about protection.
MS THABETHE: Okay. And did he say anything else about the meeting?
MR NGCOBO: ...(no English interpretation)
MS THABETHE: Kwela or any of the other people.
MR NGCOBO: You mean about the meeting?
MS THABETHE: Yes. Did they say anything else in regard to the meeting to you?
MR NGCOBO: Like what?
CHAIRPERSON: This is what she's asking you, was there anything said about it? Ms Thabethe doesn't know, she wasn't there, she's asking what was said about the meeting, what do you know about it?
MR NGCOBO: No, he didn't say anything to me about the meeting, he didn't even tell me who was going to speak in that meeting. All I heard about the meeting was that there were going to be peace talks or people will be talking to the Chief about the problems they are facing.
MS THABETHE: Did he ask you to attend the peace meeting?
MR NGCOBO: No, he told me that I should go to that meeting because sometimes they do call these meetings and ...(intervention)
MS THABETHE: So the answer is yes, it's not no?
INTERPRETER: Chairperson, can she please give me a chance. If she can ...(intervention)
CHAIRPERSON: Sorry, Ms Thabethe, you must wait, the translator hasn't finished. If you could wait please.
MS THABETHE: I'm so sorry, Mr Chair.
CHAIRPERSON: Sorry, Ms Translator, if you could just finish that sentence. I've got it "He told us that we must go ..." and then I got lost.
INTERPRETER: If she can please ask her question again so that I can get the answer from the applicant.
CHAIRPERSON: I think if you could just ask the question again so that it can be answered again.
MS THABETHE: I've just lost my line of thought, Mr Chair, if you can give me a minute.
ADV SANDI: You were asking him about going to the meeting, whether he asked him to go to the meeting.
MS THABETHE: Mr Chair, can I be of assistance? He said "No", but ...(intervention)
CHAIRPERSON: I think let's rather get it from the witness just in case it becomes an issue.
MS THABETHE: Okay.
CHAIRPERSON: Just repeat your question.
MS THABETHE: Did Mr Kwela or any of the other people instruct you to be at the meeting, to go and attend the meeting?
MR NGCOBO: Yes, Mkhize told me that I should be in that meeting.
CHAIRPERSON: Is that Vusimuzi?
MR NGCOBO: Yes, that's his name.
MR NGCOBO: To do what at this meeting?
MR NGCOBO: I was supposed to go there and guard, so that if there were people coming to attack, I'll be there to defend.
CHAIRPERSON: Sorry, Ms Thabethe. So on that, from what you've told us then Mr Ngcobo, is that you didn't obey those instructions, because what my understanding of your evidence is, is that Mr Mbukazi and Mr Shandu were coming to the place where the meeting was to be, with a group of other people, other people were there, more than 20 you say, and then you just fired at them. There wasn't any breach of the peace before you fired, you were the one to breach the peace by firing. That's not guarding, that's attacking. Why did you shoot Mr Mbukazi and Mr Shandu when your instructions were merely to go and guard the people in case there was trouble that started?
MR NGCOBO: Mkhize told me so, that I should guard there in case they do attack.
CHAIRPERSON: Yes, but they didn't attack, that's why I'm asking you why did you shoot them. You were only meant to be of any use there if there was an attack, but there wasn't, you were the one who attacked. That's why I'm asking you, why did you shoot those two gentlemen if they didn't attack? On your story that you've told us, they were merely walking, apparently unarmed, unexpecting any trouble, not expecting any trouble and you shot them. I wouldn't call that guarding.
MR NGCOBO: Yes, the reason I started firing at them it was because Mbukazi was there and I knew that Mbukazi was one person who was sending IFP to kill us.
CHAIRPERSON: Ms Thabethe?
MS THABETHE: What about Mr Shandu?
MR NGCOBO: Shandu was killed because he was with Mbukazi.
MS THABETHE: Sorry, Mr Chair, I didn't hear the answer.
CHAIRPERSON: The answer was "Mr Shandu was killed because he was with Mr Mbukazi."
MS THABETHE: Is he the only person who was with Mr Mbukazi?
MR NGCOBO: No, at the time he wasn't but usually he was seen before with Mbukazi.
MS THABETHE: So why didn't you shoot the other ...(intervention)
MR MALAN: Sorry, Ms Thabethe.
But you told us you've never seen him before. You didn't know what his face looked like, you didn't know his name.
MR NGCOBO: Yes, I've never seen him before and I've never known his name, but what I heard was that he was seen, not by me, by others with Mbukazi. This is hearsay.
MR MALAN: Did you hear that before you shot him or after?
MR NGCOBO: I heard about this before I shot at him.
MR MALAN: Now what did they so to you, that there's usually a person with him, we don't know what he looks like and we don't know what his name is? How did they tell that Shandu was usually with Mbukazi? Or that the person who you later learnt was Shandu, whose face you didn't know, was indeed that person.
CHAIRPERSON: Taking into account the fact that one would imagine Mr Mbukazi was in the past, prior to his shooting, in the company of many, many people from time to time.
MR NGCOBO: At the time of the shooting I didn't know, but then all I heard was that Mbukazi was going to be with Cele.
MR MALAN: Just for my sake, to just get it clear here. If I understand your evidence correctly, it is that on the 21st of March, that's just more than a month before the elections, Sadam and Mashelela Kwela came to you, they told you about this meeting which was to be a peace meeting, to get the Chief closer to the community. It was a peace meeting and to get the Chief to assist the community resolving their problems, and Mkhize told you to attend and to guard, is that correct?
MR NGCOBO: Yes, this is what Mkhize told me.
MR MALAN: Now nobody told you to shoot anybody unless defending yourself when attacked.
MR NGCOBO: Sadam and Mashelela told me that Mbukazi and Cele should be killed, and also Shandu, even though I didn't know Shandu.
CHAIRPERSON: So now you're saying that you were sent there to assassinate Mbukazi and Nkosi Cele, not to guard? Is that what you're saying?
MR NGCOBO: Mkhize sent me to go there and guard and Sadam and Mashelela told me that I should go there and kill.
CHAIRPERSON: Sorry, Sadam and who, Kwela, told you that you should go there and kill? And also at the same time Kwela said that he might also go to the meeting.
MR NGCOBO: No, Sadam and Mashelela ...(intervention)
CHAIRPERSON: You've mentioned Mashelela, who is Mashelela now?
MR MALAN: Kwela.
CHAIRPERSON: Kwela. Sorry, Mr Malan.
So you're saying Mkhize said go and guard and then Sadam and Kwela say go and assassinate Mbukazi and Cele and then Kwela also says well he may also be going to the meeting?
MR NGCOBO: Yes, this is what Sadam told me and Kwela.
CHAIRPERSON: So why didn't you mention this instruction to go and assassinate people earlier, why do you only mention it now when Mr Malan's asking you questions?
MR NGCOBO: It is because I'm answering questions, like now I'm still answering questions.
CHAIRPERSON: Mr Malan?
MR MALAN: I have no further questions.
CHAIRPERSON: Ms Thabethe.
MS THABETHE: Just to make a follow-up on that, Mr Ngcobo. I want to put it to you that you're really not being truthful because I asked you what did they say to you and you said they told you to go and attend the meeting. I further asked you "Did they say anything else?" You said "No", they told you to go and guard the meeting and now you are changing. I'm putting it to you that you are not being truthful in front of this Committee. Do you want to respond to that?
MR DEHAL: I think that's marginally incorrect, in that Mkhize sent him to guard and the other two told him to kill.
MS THABETHE: No. Mr Chair ...(intervention)
CHAIRPERSON: Earlier he said that he was told by Sadam and Kwela to guard.
MS THABETHE: Mr Chair, my question was, what did Kwela say to him and I was corrected, that and others who were with him. Yes.
CHAIRPERSON: Anyway this is a question of argument I think, it can be argued whether he was credible on this point or not.
MS THABETHE: So Mr Chair, are you suggesting I don't ask him to respond on whether ...(intervention)
CHAIRPERSON: No, you can ask him, but you're basically just trying to confirm your argument, aren't you?
MS THABETHE: Okay Mr Chair, I'll move on.
Okay, my last question or my last aspect of questioning is with regard to Mr Shandu's car. From the judgment in Court there was evidence that Mr Shandu's car was found burnt and his watch gone and a wallet. Do you have any knowledge as to who did this?
MR NGCOBO: The only knowledge I had was not sufficient because we were still investigating. They were not supposed to do that, they were not supposed to burn his car and they were not supposed to take his watch, but then when this was investigated among us, we discovered that one person had taken a watch, the other has taken the wallet and someone has stolen the car and driven it somewhere and burnt it.
MS THABETHE: Do you know who did this?
MR NGCOBO: ...(no English interpretation)
MS THABETHE: And the wallet and the car?
MR NGCOBO: People who were suspected that they've taken this was Mkhize, Rambo, Monducele, Sibongseni.
CHAIRPERSON: Were these people comrades?
MR NGCOBO: Yes, they were comrades, they were ANC comrades. That's why we investigated, because it was one of us among ourselves.
MS THABETHE: Thank you, Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Mr Dehal, do you have any re-examination?
RE-EXAMINATION BY MR DEHAL: Very briefly, Sir.
Mr Ngcobo, what's your level of education?
MR NGCOBO: Standard two.
MR DEHAL: And what's wrong with your left eye?
CHAIRPERSON: Is it his left eye or his right eye? I would say it's the right one.
MR DEHAL: Sorry forgive me, right eye, yes. Thank you.
And how did you come to lose it?
MR NGCOBO: I was struck by a stick.
MR DEHAL: Thank you, that is all.
NO FURTHER QUESTIONS BY MR DEHAL
CHAIRPERSON: Mr Malan, do you have any questions you'd like to ask?
MR MALAN: I just want to follow up on your question, if I - on your last answer to my earlier question. You say that, now, that Sadam and Mashelela Kwela ordered you to kill Mbukazi and whoever would be with them, or Shandu, is that correct? You were instructed or you were requested to kill him, you went out to kill him.
MR NGCOBO: I was instructed to do so.
MR MALAN: By Kwela?
MR NGCOBO: Yes, by Kwela and Sadam.
MR DEHAL: Now - and if I understand you correctly, in your earlier evidence you say that there indeed was a fight between the Kwelas and the Msomis, there was a conflict, an ongoing conflict.
MR NGCOBO: Yes, I did explain that Msomi attacked Kwela and when the reason for attacking Kwela was needed, it was never brought forward because the Chief was not interested.
MR MALAN: Yes. And further I understand that you were unhappy with Mbukazi because he was only listening to the Msomis, he wasn't listening to Kwela and helping Kwela and helping you people, is that correct?
MR NGCOBO: Mbukazi was our Induna, but then he never was interested in attending to your grievances, as his people or people under him.
MR MALAN: Was he protecting the Msomis?
MR NGCOBO: Yes, you can say so, you can say Mbukazi, Cele and the Msomis were working together because the Chief did ask us as to whether we were afraid of the Msomis and the Induna of the youth told the Chief that he wasn't supposed to say so because he is the Chief, he is supposed to solve problems, not to create problems for the community.
MR MALAN: And you had to kill Mbukazi for this reason, or why would Kwela and Sadam ask you to kill him? Was this the reason?
MR NGCOBO: This is how they saw it because I think what happened amongst all of us is that we realised that the Induna was the reason we had problems in the community, he was behind the killings in the community. They were supposed to solve these problems but the didn't bother.
MR MALAN: I'm trying to really help you to get to the bottom of this, but you must make up your mind. Did you kill him because you realised he was responsible for the problems, or did you attend a peace meeting under the specific instructions to kill him? Why did you kill him, did you kill him of your own accord or did you kill him because you were ordered? You must make up your mind now.
MR NGCOBO: I knew that he was a problem and I also heard from other people that he was a problem, he was the reason we were fighting.
CHAIRPERSON: Mr Malan's question was very straightforward, Mr Ngcobo, he's merely asking you - and if you can listen to the question, did you kill Mr Mbukazi because you were ordered to do so or did you kill him on your own volition, because you knew that he was causing trouble and you felt that he ought to be killed? What is the situation, were you ordered to kill him or did you do it yourself?
MR NGCOBO: I was instructed that I should kill him because of his participating with the IFP.
CHAIRPERSON: I take it from reading your statement, correct me if I'm wrong, you never received any training, military training, is that correct?
MR NGCOBO: No, I didn't go outside the country.
CHAIRPERSON: Well did you receive any training anywhere?
MR NGCOBO: No, I trained inside the country.
CHAIRPERSON: Who trained you?
MR NGCOBO: Sadam trained me on handling firearms.
CHAIRPERSON: Who is Sadam? What's his other name?
MR NGCOBO: I'll be lying, I only know him as Sadam.
CHAIRPERSON: Because in your statement, paragraph 4, you said
"I was getting ready to be trained as an ANC cadre."
That's the very bottom line of page 4 -
"I was getting ready to be trained ..."
And then you say -
"I embraced the ideals of the armed wing, MK."
But you never say anything about being trained. I got the impression that you were wanting to be trained but it never happened.
MR DEHAL: I think he confined - sorry, Chair, he confined that aspect to 1981, which starts at the beginning of paragraph 4. And in paragraph 4 it deals with the events of 1981.
CHAIRPERSON: Alright. So in other words you say you ...(intervention)
MR NGCOBO: No, I never went outside the country to be trained, but I was trained inside in the handling of weapons.
CHAIRPERSON: And you got your ANC membership card in 1981?
MR NGCOBO: No, no I didn't get it 1981, I think I only received it in 1993.
CHAIRPERSON: So this paragraph doesn't confine itself to 1981.
MR MALAN: If I may just come back to this date.
Mr Ngcobo, you were 12 years old, going on 13, could you read all this ANC literature when you were 12 years old? Are you not majorly mistaken with this date?
MR NGCOBO: In 1981, it was my first time gaining knowledge about the ANC, not that I was reading the literature.
CHAIRPERSON: Who was the Chairman of the ANC in Engonyameni, in 1994?
MR NGCOBO: At the time we didn't have a branch but we were using another branch. They were still going to open a branch at that time.
MR MALAN: This was a week before the elections, you're sure there was no branch? - a month before the election.
MR NGCOBO: No, it was not launched, they were still constructing that. We were using another one.
MR MALAN: Just a last question. Sadam, did he work for Kwela, for Mashelela Kwela?
MR NGCOBO: No, I wouldn't say he was working for Kwela, the only association was because Sadam was also an ANC and Kwela was also an ANC, and Sadam was the person we usually sent him to the ANC offices. If we needed anything, we will send Sadam.
MR MALAN: What was Sadam's job, what did he do for a living?
MR NGCOBO: He was our leader, our SDU leader in the area.
MR MALAN: But in paragraph 7 you tell us that Kwela was the Commander of the Unit. You refer to it as an MK Unit and then later on you talk of it as SDU.
MR NGCOBO: Sadam and Kwela were our leaders. If one wasn't present, then we know we will contact the other one.
MR MALAN: Thank you, Chair.
ADV SANDI: Yes, but explain this, who told you that Kwela was the MK Commander?
MR NGCOBO: No, no-one told me that he was an MK Commander, but he was our Commander, not MK Commander.
ADV SANDI: Is that what he told you? Did he say to you he was your Commander, or you just concluded that he must have been your Commander?
MR NGCOBO: Do you mean him?
ADV SANDI: Yes, Kwela.
MR NGCOBO: Sadam told me that Kwela was the Commander.
ADV SANDI: Do you know if Kwela had a vehicle?
MR NGCOBO: No, I do not know, I've never seen him driving a car.
ADV SANDI: And Sadam?
MR NGCOBO: No, Sadam didn't have a car. Even if he had it, I've never seen him driving a car.
ADV SANDI: And Mkhize?
MR NGCOBO: No, he didn't have a car.
ADV SANDI: Okay, thank you. Thank you, Chair.
MR MALAN: Just following an answer to Mr Sandi's question. You were told by Sadam that Kwela was Commander.
MR NGCOBO: Yes, Sadam told me that ...(intervention)
MR MALAN: You were not told that he was an MK Commander, just that he was Commander?
MR NGCOBO: No, he didn't specify whether MK Commander or what Commander, he just said Commander.
MR MALAN: So you were not a member of MK?
MR NGCOBO: No, I wasn't because I never went outside the country to train as an MK. I think MKs are people who are trained outside South Africa, who are well trained in weapons and ...(intervention)
MR NGCOBO: You see that's really our problem, that everything tends - let me rephrase it, if you read the judgment and if you listen to the cross-examination and the position of the families, what is put before us is that you were part of one gang, of Kwela's gang, who had a fight with the Msomi gang. You in your statement lead us to believe that you acted as an ANC, that it was an IFP/ANC conflict. Then, you even tell your attorney that you were a member of MK, that you were a member of a unit, you tell us that Kwela was the Commander of your MK Unit, you read the statement, you confirm the truth and the correctness of the contents, then you back off. A last final question, were you a member of Kwela's gang, in the fight against the Msomis, or were you really involved in the structures of the ANC or MK?
MR NGCOBO: I was never a member of Kwela's gang, I've always been a member of ANC.
CHAIRPERSON: Mr Ngcobo, I gather from your statement here that you intentionally shot Mr Shandu, is that not so? 'Cause you said you fired two shots at Mr Mbukazi and you fired on shot at Shandu. So you shot at Mr Shandu, intending to hit him with the bullet? Is that correct?
MR NGCOBO: I didn't intend to kill him.
CHAIRPERSON: Yes, but you intended to shoot at him, because here I read it, it's paragraph 8, page 3 of Exhibit A
"At the meeting I noticed Mbukazi in a crowd of people, together with Shandu. I immediately fired at him. I fired two shots at Mbukazi and one at Shandu."
There you say it, you fired two shots at Mr Mbukazi and one at Mr Shandu. The impression given to me is that you shot at Mr Shandu, not so? And earlier in your evidence you say that you shot at him because you heard before that he was hanging around with Mr Mbukazi and you assumed that he was a member of the IFP or a supporter because he was with Mr Mbukazi and that is why you shot at him. Are you saying now that you didn't intend to shoot at him at all or are you saying that you intended to shoot at him? Just let's get that clear.
MR NGCOBO: Yes, I shot at him because I thought he was a member of IFP, or supporting IFP.
CHAIRPERSON: Yes, but you weren't instructed to shoot at him?
MR NGCOBO: Mashelela and Sadam told me to shoot at him as well.
CHAIRPERSON: At Mr Shandu as well? So they said to you, Ngcobo, go to the meeting, go and kill Cele, Mbukazi and that other unknown person whose name I don't mention to you who has of recent times been seen in the company of Mr Mbukazi, is that what they said to you?
MR NGCOBO: Yes, that's how they explained to me because I didn't know Shandu, the only people I knew when I went there was Cele and Mbukazi.
CHAIRPERSON: Now you're saying that you were instructed also to kill a person who was recently seen to be in the company of Mbukazi, who as we now know turned out, unfortunately, to be Mr Shandu.
MR NGCOBO: I wouldn't say they couldn't give me the description but they didn't do so, but maybe they knew him and they could have gave me the description.
CHAIRPERSON: Did you shoot at Cele?
MR NGCOBO: Cele never used to attend meetings, he liked telling people that he will attend a certain meeting and he wouldn't be there. So even this day he was expected to be there, but he didn't show up, as usual.
CHAIRPERSON: Yes, thank you. Any questions arising, Mr Dehal?
FURTHER EXAMINATION BY MR DEHAL: Just one aspect, Chair.
Mr Ngcobo, you mentioned in response to the Chairperson's question, that "They would have given me description", would that have been a description of Mr Shandu? And if they did, what description did they give you?
CHAIRPERSON: No, I think my understanding was that he said he doesn't know whether they could have given him a description, but the didn't.
MR DEHAL: Oh, I see. Thank you. I have no questions then.
NO FURTHER QUESTIONS BY MR DEHAL
CHAIRPERSON: Mr Panday?
FURTHER CROSS-EXAMINATION BY MR PANDAY: Mr Ngcobo, how did you identify Mr Shandu, because there were 20 other people there.
MR DEHAL: He answered this at length, I think repeatedly he said just as a person who was in the company of Mbukazi.
CHAIRPERSON: No, he said that when Mbukazi arrived there were about four or maybe about six of them, as they came.
How then did you particularly choose to shoot at Mr Shandu, when there were four, maybe five other people in the close company of Mr Mbukazi at that time of the shooting?
MR NGCOBO: Among the people who were there with Mbukazi, he was the one that I didn't know and he was with Mbukazi and I thought he was going to shoot because I saw him. Maybe he was taking a cover or what, but I thought he was going to shoot.
MR PANDAY: You said you thought he was going to shoot. What cover was he taking?
MR NGCOBO: When I approached he moved and he put his hands in his jacket. I don't know whether he was trying to pull up his trousers or not, but I scared, I thought he was trying to reach for a firearm or something.
MR PANDAY: Mr Ngcobo, you mention that you reported to the other branch, ANC branch, where was this branch?
MR NGCOBO: Sisi.
CHAIRPERSON: Sorry, what was that word? S-i-s-i, Sisi?
MR NGCOBO: C as in C alphabet, CC.
MR PANDAY: And where is this place, CC, how far is it from Engonyameni?
CHAIRPERSON: It's CC, like ...(intervention)
MR NGCOBO: It is an area and it has now been taken by a farmer, but it is in one area, Esidweni.
MR PANDAY: Just to confirm, Mr Ngcobo, your attorney put to the Commission that you have a standard two education and you confirmed that, is that correct?
CHAIRPERSON: I think he's confirmed it, it was accepted.
MR PANDAY: Now when did you obtain this standard two level of education? What year did you obtain this standard two level of education?
MR NGCOBO: I don't quite remember?
MR PANDAY: Was it before '92?
MR NGCOBO: Before 1992.
MR PANDAY: Before 1981? Was it before 1981?
MR NGCOBO: No, after 1981, I think maybe in 1984 or 1985, somewhere there.
ADV SANDI: What standard of education did you have in 1981?
MR NGCOBO: I don't remember because there were years which I didn't attend school and then I went back.
MR PANDAY: Thank you, Mr Chairman, nothing further.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Thank you. Ms Thabethe, any questions arising?
MS THABETHE: No questions, Mr Chair, I'm ready for argument.
NO QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you, Mr Ngcobo, that concludes your testimony.
WITNESS EXCUSED
CHAIRPERSON: Are you going to be leading any further witnesses, Mr Dehal?
MR DEHAL: None, thank you Chair.
CHAIRPERSON: Mr Panday, are you going to be calling witnesses?
MR PANDAY: Yes, Mr Chair, it's just the son of Mr Mbukazi.
CHAIRPERSON: I wonder if this wouldn't be a convenient time to take a very short lunch adjournment.
MR PANDAY: As Mr Chairman pleases.
CHAIRPERSON: Yes, because it's been a long run. We'll adjourn for quarter of an hour and then we'll resume with the evidence to be led by Mr Panday, because we're told we have to be out of here by half past two.
MR PANDAY: Thank you.
CHAIRPERSON: We're going to take a short lunch adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Mr Panday.
MR PANDAY: Thank you, Mr Chairman. Mr Chairman, the witness on behalf of the victims, we call Mr O M Mbukazi. That is the son of the Induna, Mr Mbukazi.
CHAIRPERSON: Thank you. Mr Mbukazi, what are your full names please?
MR MBUKAZI: Vanyise ...(intervention)
CHAIRPERSON: Sorry, Vanyise?
MR MBUKAZI: Vanyise(?) Osmond ...(indistinct)
MS THABETHE: The spelling is on page 20 of the bundle.
VANYISE OSMOND MBUKAZI: (sworn states)
CHAIRPERSON: Thank you. Mr Panday?
EXAMINATION BY MR PANDAY: Thank you, Mr Chairman.
Mr Mbukazi, is it correct that you are 43 years of age and residing in Umlazi township?
MR MBUKAZI: That is correct.
MR PANDAY: Is it also further correct that you are the son of the late Mr Mbusilelwa Petros Mbukazi?
MR MBUKAZI: Yes, I am.
MR PANDAY: That he was killed by the applicant?
MR MBUKAZI: Yes, that is correct.
MR PANDAY: Mr Mbukazi, I'm going to show to you pages 17, 18 and 19 of the bundle, that's hand-written. Can you confirm that this affidavit is the affidavit that was drawn up on behalf of you?
MR MBUKAZI: That is correct.
MR PANDAY: And that pages 20 to 21 are a mere typed version of that hand-written affidavit?
MR MBUKAZI: That is correct.
MR PANDAY: Mr Mbukazi, I'm going to refer to paragraph 4 of that affidavit, or firstly, paragraph 2 of the affidavit on page 20, where you state that the adult males in the area, namely Mashelela Baba Kwela and Silwane Msomi, were involved in a taxi business at Isipingo taxi rank, is that correct?
MR MBUKAZI: That is correct.
MR PANDAY: And how such knowledge within your knowledge?
MR MBUKAZI: There was a problem that there was rivalry because of this at the ranks.
CHAIRPERSON: Sorry Mr Mbukazi, just for us who don't know. Isipingo, about how far away is that from Engonyameni?
MR MBUKAZI: They are very close to one another because it is about 20 k's. There was a problem that they were in competition for the ranks, taxi ranks and they were residing at Engonyameni at the time.
CHAIRPERSON: Yes, thank you. Mr Panday?
MR PANDAY: Thank you.
Mr Mbukazi, you mentioned that there was a problem at the taxi ranks between these two parties, Kwela and Msomi, how did you know of this knowledge? How did you know of this information?
MR MBUKAZI: It all started in 1992, where the fighting between Mr Kwela and Mr Msomi started. There were means that were attempted to reconcile them, but these were unsuccessful because on the 15th of May 1992, the war started. That was on a Saturday.
MR PANDAY: This war, was it only as a result of the taxi rivalry?
MR DEHAL: Sorry, that's a leading question, I think you should not lead him into it.
CHAIRPERSON: Yes. What was the cause of the war?
MR MBUKAZI: It was that rivalry about the taxi rank.
CHAIRPERSON: Did the war have any political element to it?
MR MBUKAZI: It did not involve politics.
CHAIRPERSON: Mr Panday.
MR PANDAY: Now Mr Mbukazi, is it correct that your father was the Induna of the Engonyameni area?
MR MBUKAZI: My father was the Induna.
MR PANDAY: How long was he the Induna for?
MR MBUKAZI: If I'm not mistaken, from 1975.
MR PANDAY: And during the period 1992, around that period, was there anyone else besides him that was Induna before him?
CHAIRPERSON: Before or with him at the same time.
MR PANDAY: Before or with him at the same time.
MR MBUKAZI: My father became the Induna after the death of his in-law.
CHAIRPERSON: But I think what Mr Panday is referring to, in the evidence of the applicant - did you hear the evidence of the applicant, Mr Mbukazi?
MR MBUKAZI: ...(no English interpretation)
CHAIRPERSON: Sorry, did you hear the evidence of the applicant?
MR MBUKAZI: ...(no English interpretation)
CHAIRPERSON: Sorry, I'm not getting the interpretation through.
INTERPRETER: He says that - maybe you should repeat.
CHAIRPERSON: Did you hear the evidence of the applicant? When the applicant gave evidence, did you hear it?
MR MBUKAZI: Yes.
CHAIRPERSON: Now the applicant was talking about there being another Induna, did you hear that part? - besides your father.
MR MBUKAZI: Maybe Mr Ngcobo is referring to the Izinduna Zizwa who are in charge of the youth.
CHAIRPERSON: Yes, thank you. Mr Panday.
MR PANDAY: Now Mr Mbukazi, in paragraph 4 of your affidavit you make mention that a Mr Shandu was working for a Peace Committee, is that correct?
MR MBUKAZI: That is correct.
MR PANDAY: Now what was the relevance of Mr Shandu coming to the Engonyameni area with this Peace Committee?
MR MBUKAZI: He came because of the problems that were prevalent in the area, because there had been meetings that had been called but were not materialising and at the same time people were continuing to die.
CHAIRPERSON: Sorry, Mr Mbukazi, at that time was there political conflict in the area, particularly between IFP and ANC, as there was in many, many areas of ...(intervention)
MR MBUKAZI: At that time there was not even a branch of either the ANC or the IFP in the area.
CHAIRPERSON: So when you say that he came because of the problems in the area, are you referring then to the taxi problems?
MR MBUKAZI: Yes, that was the war that was going on.
CHAIRPERSON: Mr Panday.
MR PANDAY: Mr Mbukazi, is it correct to assume that the only reason for this Peace Committee being, peace meeting and the Peace Committee member attending, was to address the issue of the violence to the taxi rivalry?
MR MBUKAZI: The reason for calling on Mr Shandu to assist was because many people had fled the area. My father continuously tried to call meetings, but most people did not attend and as such the problems were not solved. My father was then forced to approach Mr Shandu to try and convene a meeting of the warring factions.
MR PANDAY: What caused the people to flee from the area?
MR MBUKAZI: The war started in 1992, after a person had been killed. Even my father at some point had to flee the area because he was fearing for the life of himself and his family.
MR PANDAY: Now Mr Mbukazi, just one more question. In your affidavit you mention that you reside in Umlazi township, now this Engonyameni area you mention is what, 20 kilometres away, now how is it that you - how was all this information made available to you as to what was going on in the Engonyameni area?
MR MBUKAZI: As I mentioned before, my father was in charge of that area and we were in continuous contact with my father. Also, in 1992 my father fled the Engonyameni area and came to live with us at U-Section, Umlazi, but he would go back at intervals to the Engonyameni area to try and convene those meetings for the peace process to commence.
MR PANDAY: Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Thank you, Mr Panday. Mr Dehal, do you have any questions you'd like to ask Mr Mbukazi?
CROSS-EXAMINATION BY MR DEHAL: Thank you, Sir.
Mr Mbukazi, were you present at this meeting when your father was shot dead?
MR MBUKAZI: I was not present.
MR DEHAL: So you cannot tell what happened at that meeting because you were not there, you did not see anything? And if you do testify, it would relate only to what was told to you.
MR MALAN: But did he give any testimony? Is this relevant? - on what happened at the meeting.
MR DEHAL: His affidavit seems to draw the inferences from the various paragraphs, that is 2, 3, 4 and 5 and in paragraph 6, whilst he confirms that he doesn't know of their political affiliations ...(intervention)
CHAIRPERSON: I think Mr Dehal, it's quite obvious that is he says he wasn't at the place and time when his father was shot, that anything that he knows about is what he was told.
MR DEHAL: I accept that.
CHAIRPERSON: We've got no evidence that there were any videos taken or anything. So take that as being said.
MR DEHAL: Thank you, Sir.
And I see that in paragraph 6 of your affidavit you say that you are unable to comment on your father's political affiliation and the whole, and apart from that you're still against the amnesty application.
MR MBUKAZI: I mentioned before that at that time there was not even a branch of either the ANC or the IFP, it was just a fight between two Indunas, Msomi and Kwela.
MR DEHAL: Why did your father flee from the one area to your home in Umlazi?
MR MBUKAZI: I explained that the war started in 1992, where one of my brothers was killed. My father survived that attack. The situation was so bad that everyone was fleeing from the area, he also had to do the same.
MR DEHAL: And why was your brother killed, what led to his killing?
MR MBUKAZI: When the war between Msomi and Kwela started, people supported one of the two persons and the war started in that sense and my brother was killed in that war, on the 15th of May 1992.
MR DEHAL: Would it be correct to say that your father was an IFP member and supporter?
MR MBUKAZI: I am not in a position to comment on that, but what I know is that the area that he was in charge of, was not a politically active area. What I do know about my father is that he was not a member of a political party.
MR DEHAL: You're a fairly senior man, you're 42 years of age if I recall that correctly, in 1992 you lived in Umlazi, which was a very short distance away from this area that your father live in. Umlazi itself was fraught with division between the ANC and IFP and this had spilled over into the surrounding areas. You can't dispute that can you?
MR MBUKAZI: Let me state again that the war that started in 1992 at Engonyameni, involved two persons, Msomi and Kwela and they both had their supporters, but it did not involve politics. There was no IFP or ANC.
MR DEHAL: Well that's exactly what I'm addressing. My question is different and you're not answering my question. In the Umlazi area that you live in, there was growing tension and an issue between the two main factions, the ANC and the IFP. You must agree that this was present and that this spilled over into the adjacent outlying areas, including the area where your father was. Everybody who lived in South Africa at the time knew this.
MR PANDAY: Sorry, Mr Chairman. If there can be some direction as to where this question is heading. The entire country experienced political problems, logically ...(indistinct) that Umlazi would have. Now the witness has answered that the violence in that area was not politically motivated.
MR MALAN: I wonder, Mr Mbukazi, the question put you was simply "Was there tension and violence in Umlazi, where you were staying?" I think answer that question and get it over with. Between IFP and ANC in Umlazi, that's the question.
MR MBUKAZI: There were areas that were fraught with violence in Umlazi, but not in Engonyameni area.
MR DEHAL: You see, that's the whole point. I put it to you that you can't possibly contend, as you would like this Committee to believe, that in the area your father lived in, the violence was confined to a taxi violence. That you must have known and ought to have known firstly, as a South African citizen, secondly as an adult ...(intervention)
MR MALAN: Please wouldn't you ask him what he knows. As a South African citizen I didn't know that.
CHAIRPERSON: Yes, I didn't either, I've only heard of Engonyameni for this first time today. So as a South African citizen I don't think it can be said that he must have known that there was political violence in that area. And I'm also a citizen.
MR DEHAL: Thank you, Sir.
You were close to your father, you said when he fled he came to seek refuge in your home. I don't accept for one moment that you knew that the violence in your father's area was confined to a taxi violence. You either did not know that, you either did not know better or you're really not telling us the whole truth.
MR MBUKAZI: I did state before that my father was the Induna at Engonyameni and the problems that started in 1992 were between Msomi and Kwela. And at that time there was not even a branch of either of these political parties, where they go hold rallies and such.
MR DEHAL: Not even a branch of the IFP, I assume.
CHAIRPERSON: He said there wasn't a branch of either ANC or IFP, in the area.
MR DEHAL: How long before your father died did you meet with him?
MR MALAN: With who, with his father?
MR DEHAL: Yes.
MR MBUKAZI: Please explain your question because I'd already mentioned that my father fled the Engonyameni area in 1992, to live with us at Umlazi. I would like to know what are you referring to.
CHAIRPERSON: I think - correct me if I'm wrong, Mr Dehal - when did you last speak with your father? Is that what
Yes, when did you last speak with your father? We know that he got killed on the 21st or the 22nd of March 1994, when did you last speak to him?
MR MBUKAZI: Before the date of the 23rd of March, the date on which he was killed, I would say it was my mother who received the message.
CHAIRPERSON: Yes, but when did you last speak with your father when he was alive, you yourself?
MR MBUKAZI: I had last seen him about a week before.
MR DEHAL: And did you and your father discuss the imminent peace meeting that you talked about, at which he was killed?
MR MBUKAZI: The meeting was convened shortly before his death ...(intervention)
CHAIRPERSON: Mr Mbukazi, the question is - if you could just listen to the question. The question was very straightforward, it was "When you saw your father the week before, when you last discussed with him, did you discuss about the peace meeting that was to take place on the 23rd of March? It's either yes or no.
MR MBUKAZI: No, we did not.
MR DEHAL: And did you know the applicant before your father's death?
MR MBUKAZI: No, I did not know him, I'm just happy to see him today.
MR DEHAL: Is this the first time you've come to meet him?
MR MALAN: That was his answer.
CHAIRPERSON: He said he was happy to see him today. He might have seen him at the trial, I don't know.
MR DEHAL: Thank you.
Mr Ngcobo wants to reconcile with you and your family, he would like to make peace with you, he said so in his application, would you have any objections to that? Would you be prepared to meet with him?
MR MBUKAZI: For me it is a problem because as much as he is seeking amnesty but he's not being entirely truthful and he is explaining the problems in the area in a political light whereas they were not political.
MR DEHAL: Thank you, Chair, that is all.
NO FURTHER QUESTIONS BY MR DEHAL
CHAIRPERSON: Thank you. Ms Thabethe, do you have any questions?
MS THABETHE: No questions, Mr Chair.
NO QUESTIONS BY MS THABETHE
CHAIRPERSON: Do you have any re-examination, Mr Panday?
RE-EXAMINATION BY MR PANDAY: Just one question, Mr Chairman.
Mr Mbukazi, how did you know that there was going to be a peace meeting in the Engonyameni area?
MR MBUKAZI: I received that information from my mother after my father had been killed. She informed me that Mr Shandu had arrived to inform my father of a meeting that was going to be convened, so that the people who had fled the area could return to their homes.
MR PANDAY: Thank you.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Mr Malan, do you have any questions you'd like to ask?
MR MALAN: No questions, thank you.
CHAIRPERSON: Mr Sandi, do you have any questions?
ADV SANDI: No, no questions, Chairperson.
CHAIRPERSON: Mr Mbukazi, thank you very much, that concludes your evidence.
WITNESS EXCUSED
CHAIRPERSON: Mr Panday, do you have any further evidence?
MR PANDAY: No Mr Chairman, just that there is a second witness but her evidence can be confined to the affidavit in address, because it merely confirms the evidence given by Mr Mbukazi.
CHAIRPERSON: Yes, thank you. That then concludes the evidence in this matter. Mr Dehal, do you wish to make any submissions?
MR DEHAL: Thank you, Sir.
Just to begin with, page 25 of the bundle which is the supporting affidavit by Siphiwe Pearl Shandu, I don't know why she was not called but there are aspects in it that ...(intervention)
MR PANDAY: Well if it's going to be a problem we might as well get the evidence of Ms Shandu. Unless Mr Dehal wants to address the aspects with us first.
CHAIRPERSON: What page is that, Mr Dehal?
MR DEHAL: Sorry, page 25. I'm not seeking that she be recalled or called, I'm simply saying that I don't know what weight would be attached to this, Mr Chairperson, if you recall we ...(intervention)
CHAIRPERSON: Yes, of course it would be far less weight than if she were to give evidence. I don't know what Mr Panday, what you want to do.
MR PANDAY: Well in the circumstances then, Mr Chairman, then we'd call Ms Shandu, because Ms Shandu is merely going to state that her father was obviously a peacekeeping official.
CHAIRPERSON: Well in short you can call her is you wish, it's up to you.
MR MALAN: Is that in dispute? I mean, isn't it ...(intervention)
MR DEHAL: There's none.
MR MALAN: I don't know why Mr Dehal wants the witness there.
MR DEHAL: No sorry, I've made it very clear I have never asked for the witness, I'm simply saying what weight is going to be attached.
CHAIRPERSON: Yes, it just depends, it would be on this question of whether it was factions or politics. I think - it's up to you, Mr Panday. If you want to call her you're at liberty to do so, we don't want to prevent anything. You know as well as we do that the weight of an affidavit untested, is far less than that of tested evidence.
MR PANDAY: Yes, Mr Chairman. In the circumstances I'll now call Ms Shandu, Mr Chairman.
CHAIRPERSON: Yes, is Ms Siphiwe Pearl Shandu here?
SIPHIWE PEARL SHANDU: (sworn states)
CHAIRPERSON: Thank you. Mr Panday?
EXAMINATION BY MR PANDAY: Thank you, Mr Chairman.
Ms Shandu, I'm going to show you pages 22, 23 and 24 of the bundle of documents that we all have, that is hand-written. Do you confirm that this is an affidavit that was taken down on behalf of you?
MS SHANDU: Yes, I do.
MR PANDAY: And that page 25 is a mere typed version of the affidavit.
CHAIRPERSON: Translation.
MR PANDAY: Typed and a translation.
CHAIRPERSON: ...(inaudible - no microphone)
MS SHANDU: Yes.
MR PANDAY: Ms Shandu, is it correct that you are an adult female, residing at 27 Vasco da Gama Drive, Doomside?
MS SHANDU: Yes, I do.
MR PANDAY: And you are the daughter of the late, Mr Izak Shandu.
MS SHANDU: Yes, I am the daughter of Mr Izak Shandu.
MR PANDAY: Ms Shandu, is it correct that your father was a peacekeeping official, as reflected in paragraph 2 of your affidavit?
MS SHANDU: That is correct.
MR PANDAY: And how long has he been a member of the peacekeeping committee?
MS SHANDU: He started working for the Peace Committee in 1993, and he died in 1994.
MR PANDAY: And what was the purpose of him being employed by the Peace Committee?
CHAIRPERSON: Well I think we know, we don't have to have evidence on that. Members of the Peace Committee, it was prior to the elections, there was lots of troubles all over the place and their job was to try to keep the peace.
MR PANDAY: Thank you, Mr Chairman.
CHAIRPERSON: Or at least monitor it ...(inaudible)
MR PANDAY: Ms Shandu, in paragraph 4 of your affidavit you indicate that your father communicated with the tribal Induna, Mr Mbukazi, who had called up a meeting between two factions to attempt a peace settlement. Now how is such knowledge within yourself?
MS SHANDU: My father would normally inform us of meetings that he was going to attend, even though he had not informed us of this particular meeting, we learnt of it after his death, that he had been sent to that area of Engonyameni.
MR PANDAY: And when did you hear of the reason for him going to Engonyameni?
MS SHANDU: On the say that we learnt that he was killed and that was when we learnt of why he had been sent to Engonyameni.
MR PANDAY: And were you informed as to what sort of issue he was going to address in this area, what sort or problems he was going to address in this area?
MS SHANDU: It was not explained to us but we learnt later that he had been sent there because of the taxi violence in that area.
MR PANDAY: And who did you learn this information from?
MS SHANDU: It was the police who informed us, the same police who told us about his death.
MR PANDAY: Thank you, Ms Shandu, nothing further.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: Mr Dehal?
CROSS-EXAMINATION BY MR DEHAL: Thank you, Sir.
Ms Shandu, why are you opposing the application for amnesty?
MS SHANDU: From his evidence, Mr Ngcobo states that he does not know Mr Shandu and he has no reason why he killed him. He only received information from other people and he did not verify it. That is why we do not forgive him.
MR DEHAL: In paragraph 5 of this affidavit your say
"The accused and his companions ..."
That's the last sentence, sorry.
"The accused and his companions who I do not know, approached from the nearby bushes, they shot and killed both my father and Induna."
How do you know that?
MS SHANDU: That was the information that we received from the police, because we didn't know what had happened. We first learnt of my father's death from other people, then the police came later.
MR DEHAL: It seems obvious, but let me just ask it. You were not present at the grounds?
MS SHANDU: That is obvious.
MR DEHAL: You say your father was an IFP follower, was he a card-carrying member of the IFP and known supporter of the IFP?
MS SHANDU: I am not certain of his card status because I'd never seen it.
MR DEHAL: Did you know whether the Induna was a member of the IFP?
MS SHANDU: I had never seen the Induna before, I don't know anything about him.
MR DEHAL: Thank you, that is all, Chair.
NO FURTHER QUESTIONS BY MR DEHAL
CHAIRPERSON: Thank you. Ms Thabethe?
MS THABETHE: No questions, Mr Chair.
NO QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you. Mr Malan?
MR MALAN: No questions.
CHAIRPERSON: Mr Sandi?
ADV SANDI: No questions.
CHAIRPERSON: Thank you very much, Ms Shandu, that concludes your evidence, thank you.
WITNESS EXCUSED
CHAIRPERSON: Mr Dehal?
MR DEHAL IN ARGUMENT: Thank you, Sir.
Mr Chairperson, it appears abundantly clear that there is substantial difficulty in the application for amnesty relative to Mr Shandu. I want to begin by conceding that the nature of the testimony adduced in support of the prior knowledge, the intelligence gathering, if one may term it that, and the basis rational for the execution of Mr Shandu appears so thin that I cannot, sitting here, support that as being well founded.
That however, cannot be said of Mr Mbukazi. Mbukazi it seems on the applicant's knowledge, was well-known as a person who featured prominently in IFP circles, one that was troublesome in the area, was identified as a legitimate target, one that caused lots of problems. His arriving at the meeting appeared principally with the objective, one, pointedly to execute Mr Mbukazi and that he did. Whether he did that on the instructions of those two gentlemen he spoke of, or whether he did so out of his own volition, appears at the moment not as relevant as the fact that he indeed identified Mbukazi within the realms of the circle that he belonged to politically, as a legitimate target and indeed executed him.
To that extent I respectfully submit that his application falls within the purview of Section 20(1) of the Act. He has made full disclosure in that regard, he has a political lineage. I submit respectfully that he's not trying to criminalise that aspect. If you, Mr Chairperson, has regard to the bundle and if you look in particular at the loss the judge was, Judge Hugo, at understanding why this happened, if you now fit in that little aspect about political aspects, you will then see that the judge would not have had any difficulty had he seen this or had he known this.
In the judgment, on pages - sorry, if I may just get those pages, sorry, it's on page 42 and 43, that's the judgment on the sentence, at lines 25, 27 downwards the judge says -
"Mr Shandu in particular as one of the victims, was a person who worked for peace. It has not been suggested otherwise. Why he should have been one of the victims is totally unknown."
Now if I may just pause there. It is well known in South Africa that even if you fell within peace circles, in South Africa in 1992, so fraught, so divisive was the political ...(intervention)
CHAIRPERSON: '94.
MR DEHAL: Sorry, '94. ... even in '94, so fraught with division was South Africa, especially between the two major parties, the ANC and the IFP, that peace-keepers were looked at by different members of the community in different perspectives. I mean ANC people looked at some peace-keepers as being IFP and therefore not impartial. Mr Gashu(?) Buthelezi as part of the IFP, constantly complained about some peace-keepers as being pro-ANC. So we have problems of this sort on and on.
Then the judge goes on saying -
"It could only have been in the furtherance of a state of anarchy. The motive that has been suggested for the killing of Mr Mbukazi and for the witness to falsely implicate the accused, is that he objected to the collection of some or other fee for protection."
Then the judge goes on in the next paragraph to say, in the middle thereof -
"It does not seem to me that this type of offence, committed by anybody, could further in any way the aspirations and the very great aspirations of the majority of people in this country. Indeed it must destroy the aspirations of a great many people who desired a peaceful and successful life."
Now it seems that the judge here was respectfully cognisant of the political background and that killing of this sort within the broader spectrum, must have had a political tinge. He then adds at the bottom of that, at lines 24 onwards -
"Millions of people in this country have the same background, have had the same disadvantages and only a very, very small proportion of these people have found it necessary to turn to crime."
Now that is correctly stated, but tinged within that statement is the inevitable relating to the political problems that we face in this country. ...(intervention)
MR MALAN: Is that not prefaced by his upbringing, his background, his impoverishment, his bad education and no reference whatsoever to the political, Mr Dehal?
MR DEHAL: The first paragraph is, yes, because the judge then ...(intervention)
MR MALAN: No, I'm referring to the one that you've just read.
NO SOUND
MR DEHAL: Indeed, correct. Sorry, we got ...(intervention)
MR MALAN: You may proceed.
MR DEHAL: Within the context of the judgment itself which begins at page 31, the learned judge begins by talking of peacekeeping, talks of the two factions, but throughout the judgment I've got various underlined phrases and paragraphs where the judge is at a loss to understand why this type of ...(intervention)
CHAIRPERSON: And in fact he says he seems to a motiveless thing, he's at a loss, yes.
MR DEHAL: Precisely. Thank you.
So apart from that I cannot take, as I said, the Shandu matter I cannot take any further, the Mbukazi matter I submitted, is supported. The reverse, flip side of that coin is that we've had two people called to oppose this application. On behalf of Shandu of course I can't take it further because apart from there being no real content in the opposition, the application itself is substantially fatal. So to criticise that doesn't help me.
But insofar as Mbukazi is concerned, I respectfully submit that the person who was called, the witness, Mbukazi's son, does not take the matter any further. In fact on the contrary, his testimony can't reasonably be regarded as acceptable. He was at pains to confine the violence to that between the two factions.
In that year people in South Africa know how divided South Africa was, how the violence was at an endemic level and how at great pains the country's police were failing to abate the violence. That the violence was indeed between the political factions and not - sorry, and that indeed there was violence amongst the taxi people, but that the taxi violence was associated with the political violence. To now come to this forum and say there was no political violence, but purely and crisply and clinically a taxi violence, is to be facetious. Thank you.
CHAIRPERSON: Thank you, Mr Dehal. Mr Panday?
MR DEHAL IN ARGUMENT: Thank you, Mr Chairman.
Mr Chairman, the applicant would like us to believe that the murders of Mr Mbukazi and Mr Shandu were of some political motivation, namely that of Mr Mbukazi. Mr Shandu's killing, as his representation has indicated, he's fallen fatally short of and one doesn't need to delve too much in that to address this Committee. That is self-explanatory.
But now, with regard to Mbukazi, for the submissions to be made that surely when there was taxi violence, that eventually impinged on there being a political influence on this violence and it changed the essence of the violence, that Mr Chairman, one cannot agree with. The judge was quite clear in his judgment that there were two gangs, the Kwelas and the Msomis, the judge made no mistake by indicating that there were two political parties, the Kwelas and the Msomis. And one must never see the Kwelas and the Msomis as two political parties because they are mere, they could have been only followers of parties. But this violence, it has been clear, it has been undisputed and even the son of Mbukazi that explained to the Committee that the community knew there was violence in the area, this violence was caused by taxi rivalry. There was no indication that there was a political reason for this violence.
And the peacekeeping was called to address violence in the country. One may have, one would like to think that this peacekeeping was called to address political violence, called to address that sort of violence, but that is not the case, it was purely gang related.
And the judge, as you said, was at a loss in trying to establish a motive, but it's the applicant today that actually assists us by tying the knot between the Kwelas and the Msomis. It is accepted that the Kwelas and the Msomis were gangs. Now in court it was not adduced that these may have been political families or political parties. Now by the applicant's own fault he implicates himself with the Kwelas, he implicates himself with a gang not a political movement.
He at one stage didn't know who he was taking instructions from, whether it was Kwela, whether it was Sadam or whether it was Mkhize. One minute he has to guard, one instruction is to guard, another instruction is to attack Mbukazi and Cele and Mr Shandu. He doesn't know who his parties are. Now the court's accepted that Kwela and the Msomis were gangs and the only inference that can be drawn is that the applicant was a member of the gang, not a political movement, not a political party.
In his evidence as well his education is that of standard two, he hasn't received proper training in attacking, in assassination, he was the run of the mill ordinary person that carried a weapon and went to attack or to kill. Attack may be seen as more of a constructive aspect as opposed to kill. He purely went there to kill and he now wants us to believe that it was politically motivated and that the objective was to free the ANC, the people that were being attacked by Mbukazi, who supported the IFP.
Mr Chairman, I therefore submit that the entire application of the applicant is fatal in both respects, in that one, it was not politically motivated and two, that he has not made full disclosure and even the disclosure that he attempted to make is not even based on any political findings. And accordingly, that his amnesty not be granted in respect of both the murders of Mr Shandu and Mr Mbukazi. Thank you.
CHAIRPERSON: Thank you, Mr Panday. Do you wish to make any submissions, Ms Thabethe?
MS THABETHE IN ARGUMENT: Yes, Mr Chair, quickly.
Mr Chair, without repeating anything that has been said, my submission is that the applicant has failed to comply with the requirements of the Act of full disclosure and political objective, for the following reasons. Mr Chair, the applicant in his evidence has clearly indicated that he was approached by Kwela and others to attend a meeting, which was a peace meeting. When he was questioned by myself as to what he was told about the meeting, he said that he was told to attend the meeting. He later on changed to say that he was ordered or instructed to guard in case there were any attacks in the peace meeting. After realising from Mr Malan's questioning, that he had acted against the instructions that were given to him, namely to attend the meeting and possibly to guard in case there were any attacks, he then changed his version and introduced for the very first time the idea that there was an instruction to assassinate Mr Mbukazi. I humbly submit that the applicant has not been honest, Mr Chair, and his version is not true.
Further, Mr Chair, even if we have to assume for a moment that the applicant had anything to do with the ANC, which I don't agree with, I humbly submit Mr Chair that at this stage, that is one month before the hearing, before the elections, the ANC's policy was to establish peace in the country and by killing Mr Shandu and Mr Mbukazi, the applicant acted against the policies of the ANC, which was to establish peace in the country. And obviously that would mean he acted outside the policies of the ANC.
Further, Mr Chair, I would like to argue that this offence should be seen as a criminal act and not political because Shandu's car was found burnt, his watch was taken, his wallet was emptied, which suggests criminal elements and criminal activities.
Further, Mr Chair, with regard to Mr Mbukazi, the applicant in his evidence indicated that Mr Mbukazi wanted a resolution to the problem that was there an Engonyameni. He at no stage indicated that he was troublesome, he was an IFP troublesome member. In his own words he indicated that Mr Mbukazi wanted peace, he went to the Inkosi to try and arrange a meeting, the Inkosi was busy, he further arranged with Mr Shandu to have a meeting. Therefore, that makes his offence not politically justifiable and my prayer is that his amnesty should be refused. Thank you, Mr Chair.
CHAIRPERSON: Thank you, Ms Thabethe. Mr Dehal, any reply?
MR DEHAL: No thank you.
NO REPLY BY MR DEHAL
CHAIRPERSON: Thank you. We'll reserve our decision in this matter and hope to get out our decision as soon as possible.
That then brings this hearing to a conclusion. I'm told that we've now got to vacate the hall because the hall is required for other purposes by the owners thereof and it means that we won't be able to get to that one now. I'm just told now that they're waiting. That then means tomorrow morning we will start the Dludlu one. I think if we can start at half past nine tomorrow morning. Would that be convenient? We'll adjourn until half past nine tomorrow morning, when we will commence with the Dludlu application. Thank you.
COMMITTEE ADJOURNS
