Amnesty Hearings

MR BRINK 112

COMMISSION RESUMES

MR BRINK: Mr Chairman, I understand that Mr Jassat is on his way here. I have just been given that information as you came in.

CHAIRMAN: Is there any other witness that you propose calling?

MR BANADE: Mr Chairman, there are no further witnesses in this application. It is just the three applicants. If the Committee so pleases, we would like to conclude and possibly just make a few closing remarks and be on our way.

CHAIRMAN: I can understand ... and what is expected of you is not just closing remarks. I think what is expected of you is, I am sure, as much assistance as you can give this Committee on the interpretations you wish to place on the provisions of the Act that are relevant to your clients' case. You may do that now.

MR BANADE: Mr Chairman, I would like to make use of the opportunity granted to me and start by referring to section 21 of the relevant Act.

As you are well aware, there are mainly two important provisions and that is that this Committee, after considering the application, has to be satisfied that the relevant Act - and here we are referring to the murder of Jama - had to have been done with a political motive. And interestingly enough, there are also references made to the conflict of the past.

The second aspect is the applications of all the relevant facts being put before the Committee, full disclosure that is, and the further requirements are these contained in section 22 and in submission all three applicants resort to ... (CHANGE-OVER TO TAPE 2B)

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... As far as full facts go ... that is probably the aspect that bothers the Committee, otherwise I do not understand the detail which has been gone into.

In submission, the facts in question were brought before Judge Thirion in court beyond a reasonable doubt, and that is why all three of them were convicted of murder. So there can be absolutely no doubt that they are murderers.

The finer details as to why they stopped, why the person was searched, who saw what, with all due respect had to and in anyone's memory would have somewhat become vague by now. The applicants have absolutely no reason to come here and lie before this Committee and I think that can be accepted. What they said before, and specifically before the Court, should be differentiated from what they have said today, if there are some differences, because the aim in a criminal trial is adversary. Facts are withheld and others are emphasised. But, it is the State's duty to prove the case beyond a reasonable doubt, whereas here the facts are being brought to the fore as far as they can remember and to disclose, as far as they can remember, fully to the Committee.

In submission, Sir, if there are differences in their versions, it is with regard to smaller aspects. The fact is, and that has been proven beyond a reasonable doubt, and they acknowledge, that a certain ANC supporter had been murdered by them. So as far as the Act refers to - I would say that it should be read in connection with the full disclosure. The Act refers to "full" disclosure, and it should once again be read in the light of the fact that this incident took place six years ago, and everyone's memory is not as good. And this is one aspect I would like to touch

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upon, the fact that there were verbal agreements in certain paragraphs in the submission of Harrington and Erasmus.

You have to take into cognizance that they are being held together and I would like to bring to your attention, after I had consulted with them and given the main facts they were told right, you go and do this on your own, and that was on a Saturday afternoon where I instructed them to fill in the missing pieces, and that they might have consulted with each other. Under those circumstances, that is neither here nor there.

Harrington is the one who was consulted with more verbally and in his submission Mr Erasmus borrowed some of his terminology. I do not think that it should affect their credibility before you in any way.

JUDGE WILSON: It wouldn't if they had said that, but they didn't, did they? And does that not affect their credibility?

MR BANADE: That is what Mr Erasmus said in his brief reply to you. He said yes, we did prepare it together in consultation with the advocate and that was the part where he was wrong, because the advocate was not present when they wrote them down, but he was not given the opportunity to elaborate on that.

JUDGE WILSON: He was given the opportunity to answer the questions fully. Nobody tried to shut him up. He also, referring to earlier documents that had nothing to do with you, said there had been no consultation when there clearly had. There was only one document he agreed they had consulted about. And he was not being truthful, was he. If you read the document it is quite clear. There was a great deal of consultation.

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MR BANADE: I don't think there can be any doubt that there was a great deal of consultation. Before, if I understand correctly, in November of last year they gave evidence about a certain Seven Day War, and apparently for that aim they also prepared the submissions together and some of the sentences, which also appear as such now, come from that submission. The way I see it, it cannot affect their credibility.

ADV DE JAGER: Mr Banade, what do you understand when you speak about full disclosure or facts in question? I only have the English text in front of me. "The applicant has made a full disclosure of all relevant facts". What do you understand to be "relevant facts"?

MR BANADE: Mr Chairman, it has to be the facts of what happened when this offence took place. Relevant facts in this case are that Mr Jama was apprehended, he was seen as an ANC supporter. How each and everyone realised that he was an ANC supporter differs from instance to instance and the person was murdered. Hence the fact that he was an ANC member and on the one hand they were affiliated to the right-wing and the others were Inkatha supporters. These are the main points, these are the relevant facts. Finer detail may differ, not always to mislead the Committee, but because these acts took place six years ago and I am just asking that it be considered reasonably.

To answer your question, we are talking about relevant facts, what happened that day and what went on in their minds and what was the political motive. And with all due respect, Mr Chairperson, I think that has been fully disclosed to this Committee.

JUDGE NGOEPE: It does not help us for them to come and say

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well, we killed this man and then you regard it as a disclosure of a material aspect. The fact that they killed that person is not of earth shattering importance, because we know they did that. Of importance is for them to tell us how they went about doing that. For example, an applicant would say that I took out a knife, I stabbed him three times, and he stood up to try and run away, I tripped him and then I stabbed him twice in the back and all that sort of thing. Those are the important details that we need to know. That is what full disclosure is all about. It is not enough for an applicant just to say well, I killed that person. And perhaps you may have to address us with regard to whether or not, with reference to what I have said as important, how your clients acquitted themselves around that issue.

MR BANADE: Mr Chairman, yes, I agree with you that the detail of how this happened has to be disclosed, but is that not what happened? There were eight people; this Committee is faced with three of them. Each one is his own individual and as these events unfolded, the one sat at the back and the one sat in front and they see different pictures. They see things differently, being different individuals and obviously they would differ in certain details because the one saw certain things which the other didn't see. The way I see it they did quite well in saying what each one remembers. Each one informed the Committee as to what their role was.

Erasmus, and I think it is the first time he has disclosed it, has said that I am the one who came up with the suggestion that we should kill him and Harrington also said that.

2B - 11.2 JUDGE NGOEPE: /...

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JUDGE NGOEPE: The first applicant, Mr Harrington, repeatedly banged the deceased's head against the rock, repeatedly, there is that kind of evidence. It came out from Madlala. What did Mr Harrington say about that himself? Did he tell us about that? Did he give us those details?

MR BANADE: As far as I can remember, he did not make mention of it, about the head banging, but in essence the rest was there. If I remember correctly, he was dragged out and he fell and he was dragged out with a belt around his neck, he tried to escape, somebody wanted to shoot him and was stopped, told not to shoot. And thereafter they caught the man and if I remember these details were given and thereafter the man was shot.

JUDGE WILSON: He made no mention of this. How can you just brush it aside and say and thereafter these details were given. Mr Harrington did not mention it once, did he?

MR BANADE: To the best of my knowledge, Mr Chairman, he did not. Does it really make such a big different that small little detail where they differ from each other?

MS KHAMPEPE: ... supposed to attach any material weight to that kind of an omission? Is it not a significant omission as it relates to how the death in respect of which amnesty has to granted was committed?

MR BANADE: Mr Chairman, the fact of the matter is, at the criminal trial it was determined that death was caused by the shot from a shotgun in the man's face.

Now the law as we all know works on the basis of a common purpose and according to that Mr Harrington is also guilty, the same as Mr Erasmus, the same as Mr Madlala. Although this Committee would know that the person who was

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the direct cause of the shot is Mr Madlala. Mr Harrington gave enough facts before this Committee, as far as making it an associated deed, by saying that he dragged the man out of the vehicle and chased him when he tried to escape and so forth and then he placed Mr Madlala and the shot went off. CHAIRMAN: I think the question that is being directed at you is, can it be said that Mr Harrington has made a full disclosure when he did not breathe a word about banging the head of the deceased, Jama, on the rock? I think that is the level at which the question is put. Do you think that he has made a full disclosure, in the absence of any admission by him that he had done so?

MR BANADE: Mr Chairman, if I remember correctly, Mr Madlala's evidence was, as far as that aspect of the detail is concerned, was given after Mr Harrington gave evidence so there was not a chance to put this version of Mr Madlala to Mr Harrington. And if it bothers the Committee so much then I could ask him about it.

JUDGE WILSON: I take it you have read the judgment where Thirion J says, dealing with accused No 3 and fetching the gun

"However, the deceased might have been dead or fatally injured by then. Since he joined the common purpose after the deceased might already have been killed, he cannot be found guilty of murder. However, if the accused No 3 believed the deceased was still alive, then he would by his act become guilty of an attempted murder".

So it would appear that the court a quo found that the deceased may have been dead when the shot was fired. That is, that the banging of the head may have already killed

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him. That was the finding of the court a quo at page 823. So I do not understand your submission that you said the trial court found the cause of death to be the shooting. The trial court could not find what the cause of death was. It was either the injuries inflicted by Harrington or the shooting, as appears at page 823 of the judgment, if you would like to look at it.

MR BANADE: Mr Chairman, I accept what you have just read to me. I don't know which part of the judgment that is, but the fact remains - that is a technical aspect as to whether the man was dead before the time or thereafter, but the intention remained among the people present in the bush that day, that if this man was not dead, shoot him in the head to ensure that he is really dead.

JUDGE WILSON: You are avoiding the question again. The intention is, if he banged his head so hard against rocks to kill him he should have told us, all he? If the trial court found he may, as a result of Harrington's throttling and banging his head have already killed him. But we were not told by Harrington, were we? And that is the point my Brother has raised with you.

ADV DE JAGER: On page 818 of the judgment, towards the bottom round about line 25

"The account given by accused 1, 2 and 3 and Van der Hogen that accused 6 pulled the deceased out of the van, causing him to fall and that he thereafter throttled him with a belt on the ground accords with the probabilities".

Then on the next page:

"After the deceased had run away he was pursued by accused 1 and 6 and was brought down by accused

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No 6. Accused No 6's account of what happened thereafter is a curious one. According to him he stood up, the deceased was still lying on the ground and he put his foot on the deceased's shoulder".

That's his version. Now could you kindly deal with the version about the hammering of his head - I cannot find it at the moment - against the rocks, where that emerges.

JUDGE NGOEPE: (Microphone not activated)

MR BANADE: I am not in a position at this stage to take it any further. I do not see that it comes our in the judgment of Mr Justice Thirion.

CHAIRMAN: I understand your argument to mean that as far as you are concerned, they have made as full a disclosure as is required by the Act, and that if this detail is not disclosed, as far as you are concerned, they have more or less complied with the provisions of the Act. That is your submission, is that it?

MR BANADE: Yes, Mr Chairman, that is what I am trying to convey. I cannot understand how such a small difference makes a different in a 10, 15 year sentence, because they fully disclosed their part in this offence.

JUDGE NGOEPE: There is something else also troubling me. With regard to the second applicant, his entire explanation of what happened at the scene, is contained in a paragraph on page 4 of the statement I think of the statement he entered in, and he didn't go beyond that. That portion read - paragraph 3 of page of his handwritten statement, which you handed in yesterday"

"Ons het daar ingery".

Do you see that? The statement which you handed in

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yesterday by Mr Erasmus, page 4:

"We drove a stretch and stopped in a bush. Deep in the IFP area. I got out and saw Jama running away. I drew my 9mm pistol and pointed it at him in order to shoot him. Harrington said I should not for fear of ballistic tests. Harrington and Madlala traced him. The rest of us followed. Madlala took the shotgun from Dhlamini. The rest of us started walking back to the vehicle and the shot went off".

Has he said anything about the actual killing? How the deceased was treated at the scene? Has he really said anything about that?

MR BANADE: Mr Chairman, if one were to examine this paragraph, you would clearly see what Mr Erasmus's perspective was at the time. He said the shot went off. His perspective, even though the death was caused in another way, his perception was that the shot caused his death and it is quite clear that he conveyed his perception to this Committee.

JUDGE NGOEPE: ... the deceased was throttled by Mr Harrington many times. At some stage he was taken out of the van with the belt around his neck and in his statement Harrington said in so many words that he ha throttled the deceased at least on more than one occasion. Mr Erasmus is surprisingly quiet on the aspect of the throttling of the deceased. He never said a word about it. And yesterday he was asked a question, did you see Mr Harrington throttle the deceased with the belt. His first reaction was: at which stage? And then I intervened and I said at any stage? And then he said no, I never saw him do that. And I asked him

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why, if he never saw it at all, what was the need for him to ask at what stage. And now it transpired from the evidence that we had today from Mr Madlala that the throttling of the deceased was done - at least at some stage in such a way that it was so many times, surely Mr Erasmus ought to have seen that. Are you going to argue that it is possible Mr Erasmus never saw any the throttling at all, and if he did see it, why did he not tell us? Why did he say he never saw it and why did he not tell us about it.

MR BANADE: Mr Chairman, perhaps I could counter that with a counter question. That is Mr Erasmus's evidence. If you can remember correctly he gave evidence after Mr Harrington gave evidence. Mr Harrington himself had already told the Committee that he had strangled the deceased with his own belt. And that has already been brought before this Committee. What would Mr Erasmus's reason be for withholding such information and to suppress it, to use your own word. He can't possibly have motive. Besides, it wasn't his own actions which he was being questioned about. Just for interest's sake I consider that part of your question, I followed your line of questioning yesterday, and I followed it on the Afrikaans channel. And the interpreter used the word, instead of "belt", used the word "band", and I thought that perhaps it confused Mr Erasmus somewhat - band - until he realised that the actual word being used was "belt".

JUDGE NGOEPE: Was it about the question he was - the question was whether he was being strangled by Mr Harrington. It makes no difference what the actual thing was that was being used.

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that there were a few seconds there where Mr Erasmus was a bit confused and did not know with which part you were dealing. That is quite honestly the idea which I got.

But my answer to you is, why would Mr Erasmus suppress it? He would not achieve anything by withholding any information from this Committee.

MR BANADE: Now to go to the political motive. This part in section 20(1)(b). In submission I think that should be the aspect where the Committee should have the least problem. The whole context within which this murder took place indicates that it was within and in connection with a political motive. Eight persons from the riot squad were in a certain vehicle, three of them white, five of them were IFP affiliates, not just IFP affiliates, but confirmed IFP supporters, and the evidence here is overwhelming that and ANC supporter could not be a constable at the time. They picked the man up and eventually his corpse was found in the bushes.

The point I am trying to make is before one even goes into all the detail you find this. What might bother the Committee is were there no other objectives, and that is how I could understand the questions. But i submission the Act says that it had to be in association with a political motive. It does not say that it should only be a political motive or that the context in which it should have taken place should have been 99% a political motive.

The Act leaves a loophole that there could be other objectives as well with the individual. The little loopgate which we can look at is that there could be an association or a political objective. And in the light of all probability I think it is quite clear to this Committee.

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The people did not just say it in their submissions, but I think the entire context indicates such. The murder was associated with a political objective. I think if I could speak on behalf of Mr Madlala, I think it was much clearer in his case. He was not a full policeman, he was a special constable, and from a very young age he was raised with being an Inkatha supporter. Of course at that stage they still obtained information. He heard about this man and his involvement in murdering IFP supporters. So in my view he qualifies for amnesty in this regard.

The same with Mr Erasmus and Harrington; their evidence to you was that at that stage they were not card-carrying members of the AWB or any other right-wing political party, but they had right-wing attitudes. But these are young men and found themselves in a riot squad and they were indoctrinated along that line of thought and worked under violent circumstances.

It all indicates that they would have had this kind of attitude towards these people. Here they apprehend a man, find a pocketbook in his possession. Once again, after I read Judge Thirion's judgment last night, on page 814, where he refers to the pocketbook. The pocketbook surfaced in that trial already. They found a pocketbook. Some of them understand Zulu. Those who understand Zulu tell the others in the vehicle that this person has mentioned something about killing policemen and that he is anti-IFP and we also know that it took place approximately 14 days after the KwaShange bus incident. With all due respect, I think this is ... (CHANGE OVER TO TAPE 3A) ... and at the very least one of the objectives of this group was politically motivated.

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In submission I think that it was probably 80% politically motivated. But it is something which the Committee has to consider in the light of the facts.

JUDGE WILSON: ... act committed with a political objective, not politically motivated.

MR BANADE: Yes, Mr Chairman. The words in the English version speak about a political objective. The Afrikaans one speaks about a political point of view. A point of view has got a broad context. Objective and point of view, I don't think it limits the fact that the act was committed 100% with a political view.

The way I see it the Act made provision for that. Because if one looks at the people who drew up the Act and you look at the act which was committed, your feeling tells you that this is the type of act for which the Amnesty Act was drawn up.

Mr Chairman, that is then my submission to this Committee. As it pleases the Committee.

JUDGE NGOEPE: With regard to the pocket diary, are you arguing that - I know that the trial Judge referred to the pocket diary - but on the evidence we have now, are you arguing that one can really make a finding that there was such a pocket diary, taking into account two points. Firstly, the fact that this person was thorough searched and that they were in fact even looking for dagga. And secondly, this bizarre behaviour on the part of the police simply throwing away such a document which would have been important to them. (Inaudible) diary could have emerged from.

MR BANADE: Mr Chairman, as I understood the evidence, the pocketbook did not come from a pocket. I think within the

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context, they were driving, they saw a person, or saw a group, they stopped, got out of the vehicle and now these people are being searched in the way Mr Madlala said. And I think on a balance of probabilities it could have happened. All 15 of them weren't thoroughly searched, but there was some sort of search conducted on Mr Jama. The first problem which they would encounter is whether there was something hard on this person in the form of a weapon. I do not think it was a thorough search and I do think it was possible that something as soft as a book could have been discovered at a later stage. And the person who had initially searched him could have felt the book and probably not paid much attention to it since they weren't really looking for books, but rather weapons and so forth and that a weapon did not surface. And at a later stage when they had this person in the back of the police van they could have felt that there was something else here and under more calm circumstances they could have found the book. They saw that the man was trying to hide something and secondly they weren't merely searching for weapons but also for dagga.

Which could still have been hidden in that little pocketbook.

Mr Chairman, I still do not think, notwithstanding the fact that there are probably a few questions about that, I do not think that the Committee can find that there was no pocketbook. That was the version which surfaced in front of Judge Thirion. And I think even in that trial there were differences. But even his words on page 814 of the original judgment, with regards to why Harrington, accused No 6, went to go and sit at the back. "The most likely reason why accused 6 would have wanted to question the deceased would

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have been in connection with the notebook or diary found in the deceased's possession".

I read through it once again last night and Judge Thirion does not refer to it again, but it seems as though he was satisfied beyond a reasonable doubt that there was a pocketbook found in his possession.

ADV DE JAGER: Mr Banade, the pocketbook is highly auspicious. But is there any evidence on which it can be found that there was no pocketbook?

MR BANADE: Mr Chairman, with all due respect, no. I can't think of any evidence against that which was heard here. To tell the truth, Erasmus says that he found the pocketbook - I beg your pardon - Harrington says that he found the pocketbook, Erasmus says that he was sitting in the front of the vehicle, he heard about the pocketbook. He did not physically see the pocketbook. Mr Madlala also confirms that there was a pocketbook found.

JUDGE NGOEPE: Be careful in your answer, because there is evidence that he was searched and nothing was found on him. There is that evidence. Isn't there? Is there evidence that he was found and nothing was found on him?

CHAIRMAN: And bearing in mind that Madlala did not tell the trial court anything at all about the pocketbook. But be that as it may. The point that concerns is, why was that pocketbook thrown away? Can you tell us what the reason was?

MR BANADE: Mr Chairman, just to answer the first part. In my opinion there is overwhelming evidence that there was a pocketbook, albeit purely based on Judge Thirion's judgment and there ware three persons who make mention of it.

The fact that he was searched and nothing was found on

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him, I do not think on the basis of that bit of evidence one can say that there was no evidence. It is possible that nothing was found at that stage.

But to go to your question as to why it was thrown away. Certainly it is strange, but one has to bear in mind that these persons are affiliated to a riot squad, working in a riot squad, they are not investigators, they are not your typical charge office policemen, they are riot squad policemen. They are in a completely different category. They are used to have a physical presence at certain places and they do not take matters to court. So for a typical young man under those circumstances who found the pocketbook, and at that time his thoughts were to assault this man, decided to throw the pocketbook away. Why he did it may seem irrational today, but I do not think it should be regarded as so irrational that one could assume on the basis of that bit of evidence that there was no pocketbook.

JUDGE NGOEPE: ... allegedly contained not only the name of a prominent IFP person, but a number of houses which were targeted. If they throw it away how would they be able to go and warn those people who are potential victims, who were listed in the pocket diary and say we found your addresses listed in the pocketbook of a possible hit man, he might have conspired with other people, be careful. How would they go and warn them?

MR BANADE: Mr Chairman, I myself am not aware of addresses being in there.

JUDGE NGOEPE: The addresses. That is what Mr Madlala said. In fact, at some stage he referred to it as a hit list.

MR BANADE: I cannot answer you there. You have already cross-examined that evidence and I cannot answer that

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question.

MS KHAMPEPE: There is overwhelming evidence that a pocketbook was found, and probably no one can say anything against that. There is, however, a serious dispute on how this pocketbook was found. According to the evidence of Harrington he states that it was himself and Mr Madlala who found the pocketbook in a pocket T-shirt which was worn by Mr Jama who is deceased. So there is a dispute on how this pocketbook was found and who found it. What is your response to that?

MR BANADE: Mr Chairman, my response to that would be, as I said earlier today, there is a six year gap between the happenings on that day and today. If one should be questioned today about details of an incident that took place six years ago, they would be a bit vague, and obviously different people see things differently. The Judges in the Supreme Court and magistrates are aware of that and I would have to attribute the differences to these two factors, the gap between when the incident took place and now and also the different individuals' way of seeing things.

CHAIRMAN: You may proceed.

JUDGE WILSON: As a matter of interest, in his statement which was submitted to the Truth and Reconciliation Commission, he refers to the pocketbook having been

"a pocketbook was found in his shirt pocket". You said earlier you weren't if there was any reference to it. He in fact did say so.

MS KHAMPEPE: He says the same thing in his statement which is before us on page 6, that is the third paragraph.

CHAIRMAN: Anyway, it is quite clear that you cannot take

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the matter very much further than that.

MR BANADE: Indeed, Mr Chairperson. These are the submissions I would like to make and I would just like to add lastly that the two important loopholes about relevant facts and full disclosure in conjunction with a political objective, I think Mr Chairman, have been shown to this Committee and I do not think the Committee should have any problems in finding that all three the applicants meet the requirements for amnesty and should be granted amnesty in terms of the Act.

JUDGE WILSON: I take it you agree he does not fall within the provisions of section 20(2)(b), or that they don't fall within. That is

"Any employee of the State or any former State, or any member of the Security Forces, in the course and scope of his or her duties and within the scope of his or her express or implied authority, directed against a publicly known political organisation engaged in a political struggle against the State"

This was not bona fide within the course and scope of his duties. You agree?

MR BANADE: Mr Chairman, yes. I have to say that in preparation for this Committee meeting I did look at paragraph 20(2)(b). I read it over and over again and asked myself this question as to whether people were to work within their narrow scope you know, to get amnesty, or whether somebody went beyond their call of duty, should it really make such a big difference. I think strictly speaking, apparently they were - when they decided to kill this person it was on a frolic of their own.

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ADV DE JAGER: Mr Banade, if they act within the police line of duty does it say that they could not have committed a murder, if they were within the provisions of the Criminal Procedure Act? The Police Act does not authorise any policeman to commit a murder.

MR BANADE: That is correct.

ADV DE JAGER: It may authorise a police officer to shoot a person during an arrest, but not to murder a person.

MR BANADE: Exactly, I agree with you. It cannot.

CHAIRMAN: ... as far as you are concerned, these three people were on a frolic of their own. Is that how you put it?

MR BANADE: According to a strict interpretation of section 20(2)(b) where they speak about, and as Judge Wilson read it, in the course and within the ambit. It is not just within the course. It says "and within the scope of his or her duties and within the scope of his or her authority" to have committed it. That puts them in a very tight corridor. That is what I was trying to say to Judge Wilson. I cannot imagine what the person drawing up the Act meant. But they still qualify in terms of paragraph (a), where it says

"Any member or supporter of a well-known political organisation".

ADV DE JAGER: If Mr Madlala gives evidence that he was trained to do it and that it was the objective of trained constables?

MR BANADE: Mr Chairman, then the person that drew up the Act did not provide for that. Because I think the intention of the Act was to make provision for such acts in applications for amnesty as well, but it hasn't been done.

CHAIRMAN: It is quite clear that you are not (inaudible).

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MR BANADE: They are going to have to qualify what section 20(2) says as far as "any supporter of any political organisation" is concerned. There is no evidence before this Committee that it was the instruction of the Conservative Party or the AWB or the Democratic Party, but that they were rightwingers, and under those circumstances, Mr Chairman, within the context of that time, there was a very broad spectrum of political affiliations which were anti-ANC, and in that regard certainly they were supporters of that broad political spectrum.

MR BRINK: Before commencing, I may just say, Mr Chairman, I am informed that the attorney for Mrs Jama is now present.

Mr Chairman, the problem I have with these applications is that accepting that there was what one has heard in previous enquiries, a "sub culture" in the police, a sub culture of violence and very strong anti-ANC beliefs and so on, accepting that, the problem with these applicants is, I think, to a large extent the fact that in February 1990 the African National Congress, amongst other formerly illegal organisations, was unbanned. And, indeed, on the day in question the applicants had been to some sort of gathering where there were approximately 2000 members of the ANC which they were monitoring and/or protecting or guarding. And you will recollect further that one of the members of the ANC at that particular gathering requested Constable Harrington to ask him special constables to refrain from toyi-toying in case it led to I imagine difficulties. And notwithstanding his avowed contempts and hatred for the ANC, he complied willingly in a spirit of great cooperation. I find that strange.

Then later on these 10 or 15 young men are accosted.

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I believe that they would all have been searched, because the purpose of the police was to check on whether they had things, as came out in the evidence, firearms, dagga and the like. And then this notebook or diary or whatever it is, is discovered.

It doesn't matter from whom it came. The point is that on the evidence, and if you accept the evidence, there was this document which was extremely important to the applicants, more particularly to Mr Harrington and Mr Erasmus, because had they kept that document, and after the death of Mr Jama, they could have taken that document to their superiors and said this is what we've done and although maybe we shouldn't have done it, we did it because we discovered this vital information. That would have helped them. But to throw this document away, this pocketbook or whatever it is away, seems to me to be something which certainly can't advance their case. Had they kept it and had they not killed Jama, but they did kill him so it doesn't matter, but the point is they would obviously have done better by taking him to the police station and arresting him.

And then it is very odd, when you consider that at the bottle store, without discussing the matter between themselves - and I now refer to the first and second applicants - they have exactly or almost exactly the same thought. They both have this so-called inner explosion, they both suddenly are reminded of the murder of Major Terblanche, they both refer to a member of the ANC, an avowed communist sitting amongst them, they both refer to atrocities of the past, and this is very extraordinary to say the least, they then have this feeling without having

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discussed it.

I think the problems the applicants face are those and I myself am not persuaded that a political objective has been shown. There may well have been some sort of political motive, but I am not that that covers what is required in terms of the Act. And unless there are any questions, those are my submissions.

CHAIRMAN: If there was a pocket book, on the assumption that there was, could it not have been thrown away as part of an exercise to destroy evidence of their criminal behaviour for fear it might be detected?

MR BRINK: Yes, there is that possibility. More especially if we accept the evidence that one of the applicants called upon the other not to fire because of the danger of ballistics testing at a later stage.

JUDGE NGOEPE: But what did they kill him for? Except that he was really a member of the ANC which was at loggerheads with the IFP at the time and bearing in mind that during that time there was a lot of political conflict in that area, I doubt whether had he not been a member of the ANC they would have killed him. Doesn't that go a long way towards showing political motive? Political motive or, in the wording of the Act, towards showing that their act was associated with a political objective, to harass, to weaken, to kill members of the ANC?

MR BRINK: Yes, certainly to harass, and one accepts and I think Adv De Jager put a question at an earlier stage, notwithstanding the fact the ANC was unbanned, there was continual trouble which exists to this day between the ANC and the IFP, yes, that is so. But of course it may well be that the applicants subjectively believed that the late Mr

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Jama was a member of the ANC. I am not sure if the evidence disclosed he was wearing an ANC T-shirt, but he was certainly associated with the group, some of whom were wearing an ANC T-shirt.

But it seems, if you consider the statements handed in yesterday in their handwriting, what caused them to commit this murder? In their own words they have this identical belief or identical motive the murder of Major Terblanche, the fact they have an ANC member and an alleged communist in their presence; they both think that. Personally speaking, my submission is that that doesn't amount in itself to a political objective.

JUDGE NGOEPE: You must remember that the whole idea of killing ANC members had been there even before that day. It is not something which simply originated on that day. It had always been in their mind, and probably they had killed others, I don't know. The fact is that there had been that kind of mentality that you can kill an ANC member. So it doesn't really surprise one, does it, that on that day both of them had the idea of killing the man.

MR BRINK: Mr Chairman, yes, I concede that and I agree with that entirely. The point is that one has now learnt there was a degree of Third Force activities and that these two applicants were part of that Third Force. Of that I think there can be little doubt, notwithstanding the fact the ANC was unbanned. You've heard evidence and research has shown Third Force did exist, even after the unbanning of the ANC, more particulary so, yes, I accept that.

ADV DE JAGER: Mr Brink, if there was a Third Force, officially a Third Force, weren't they acting in the scope of the Third Force business?

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MR BRINK: That depends on whether the Third Force falls within the definition of a political organisation. That sort of thing, yes.

ADV DE JAGER: Or Security Forces.

MR BRINK: Or Security Forces.

ADV DE JAGER: But they were officially paid by the government, the Third Force.

MR BRINK: Yes. But of course you've heard there have been denials that a Third Force ever existed from the part of the previous government.

JUDGE NGOEPE: The other point that you made was that they had a strong case, or they could have had a strong case against the deceased with the diary and the like. But my guess is that in many so-called political killings, even in the undisputed ones, the person had the choice to do something else. It is just that they go for the worst thing which is murder. But if you start looking at it, it doesn't mean that anyone of them didn't have any alternative. For one thing they could have left the deceased. Everybody had that choice. I don't know whether one can use that rigorous test against their actions and say well, they shouldn't have killed him, they should have taken him to the police station. After all they had the diary, that sort of thing.

All these murders are foolish, anyway, aren't they?

MR BRINK: Of course had they not killed the deceased they wouldn't be applying for amnesty today so one knows that happened. And the question then arises: under which of the subsections of section 20 may apply. With respect, I think it is common cause that section 20(2)(b) does not apply. If you have a look at section 20(2)(f) any person who on reasonable grounds believed that he was acting in the course

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and scope of his authorities or implied authority, if they had the subjective belief that their conduct might well have been approved by their superiors, my problem with that is all very well had the diary been kept, but the diary was thrown away and they concealed all the evidence and never reported the matter.

JUDGE NGOEPE: (Inaudible)

MR BRINK: Under (a)? The question arises whether there has been the full - sorry 2(a), I beg your pardon, yes. The political organisation of course is the AWB which they then supported, or the policies of which they then supported. They certainly weren't supporters of a liberation movement, unless one can say in a strange way the AWB was a liberation movement.

ADV DE JAGER: Could they have been supporters of Inkatha?

MR BRINK: Yes, indeed, I accept that. I accept they would have tacitly supported Inkatha, even if they weren't members yes, certainly, yes, I accept that. I don't dispute that. I don't challenge that at all. (CHANGE OVER TO TAPE 3B)

JUDGE NGOEPE: ... the applicants are lying with regard to the discovery of the diary, of what significance would be that lie? It may be that they introduced that aspect as an attempt to bolster their case, to try and show that the murder was politically motivated because here is somebody with a diary in which he mentions having killed IFP people and the like. You know they might have unwisely introduced that element with the false hope that it would bolster their case. But if one finds that they were lying, what damage, if any, can it do to their case?

MR BRINK: Mr Chairman, I think one can't really make a finding that there was no diary. That aspect of the

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evidence given is suspicious. We know the search took place. Everyone has confirmed the existence of a diary and it seems to have been accepted by the trial court that there was a diary or pocketbook.

JUDGE NGOEPE: I have my own views about that, that is why I am asking you the question. That's why I am asking you to consider the question at the hypothetical level at which I am putting it to you. Because I am not sure one can rule out the possibility of a finding that there was no diary.

MR BRINK: Of course that aspect was canvassed by the trial court.

JUDGE NGOEPE: They have their own views, I have got my view.

CHAIRMAN: The trial court had to make ...

MR BRINK: If you come to the conclusion that there was in fact no diary or pocketbook, the applicants have then created that fiction in order to ....(intervention).

CHAIRMAN: ... after all the trial court refers to the fact that there was a diary, not because any State witness has said so but because the accused themselves said so.

MR BRINK: Yes.

JUDGE NGOEPE: ... didn't you read us something that (inaudible - microphone not activated)

MR BRINK: I find that quite extraordinary, Mr Chairman, because the diary was mentioned in the trial court. But the Appellate Division decision to which I referred you at page 109 halfway down - it is page 248 of the judgment but 109 of your papers, of the bundle - after dealing with the basic background to the appeal, the court merely said the appeal, however is really concerned on the basis of the following findings

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"At Jama's searching nothing was found and nothing further happened as far as justifying his arrest".

... that there was a search but nothing at all was found, which I find a little extraordinary in the light of the trial court's judgment.

JUDGE NGOEPE: But they were told the same thing, that nothing was found. We were told the same thing that he was searched and nothing was found on him. Anyway, it is by the way. I am not getting into a debate about it.

ADV DE JAGER: Mr Brink, I'd like to say that the result was that the court was not able to resolve all the points of dispute satisfactorily, but the appeal was considered on the basis of the following findings. So all disputes were not resolved satisfactorily.

MR BRINK: No, Mr Chairperson, the Judge had a very difficult time.

CHAIRMAN: Mrs Jama, is your attorney here? Mr Jassat, do you still represent Mrs Jama?

MR JASSAT: (Inaudible - microphone not activated)

CHAIRMAN: You have been asked to make a statement on behalf of Mrs Jama.

MR JASSAT: Mr Chairman, my client has heard the applicants' request that she forgive them. But she is not able to do so because she doesn't believe a word of what they have said in their application. She doesn't believe that they have been frank with this Committee, and effectively the question of their political motives is basically an excuse to get out of gaol.

She has also instructed me to advise this Committee that this question of the pocket diary is something that the applicants manufactured because they had to have an excuse

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for having detained her son.

Her belief is that the only reason why her son was arrested was simply because he put his hand in his pocket and the fact that the had an ANC shirt. If the applicants were bent on their political objectives, then we fail to understand why the 10 people that were in the group who were members of the ANC, were not all taken into custody and done away with. Why Jama was selected. And it seems that the deceased got killed simply because he put his hand in his pocket.

Her belief is, and she is merely speculating, because this inquiry is merely about who is speaking the truth, she believes that her son was so badly assaulted by the police that they couldn't let him live in case he went to the authorities. Having been found out they now use politics as an excuse for having done him in.

She is quite prepared to forgive them if they come clean and speak the truth, but she has faith in your Committee in deciding whether they should be granted amnesty or not.

Her one difficulty is the following. That it appears from the evidence that the deceased was killed because he said something about the KwaShange incident. She knows as a fact that her son was with her in Richmond at the time of the KwaShange incident and he could not have known about it or taken part in it. So therefore the explanation tendered by the applicants for killing him, she cannot accept that. The other aspect that worries us is the fact that these applicants - some of them testified that Major Terblanche had given them an undertaking that if they got themselves into trouble he will be there to protect them. But at the

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time when the deceased was murdered, Major Terblanche was no more around, he was already dead. So who was going to protect them? I don't know what the role is of the commanding officers who were in charge of their unit after Major Terblanche was murdered, because I wasn't here, but it seems that their story that they did this with a political motive must be rejected. They are basically rogue policemen who just got out of line and committed a crime and are now using the provisions of the amnesty in order to get out of prison.

Thank you, Mr Chairman.

CHAIRMAN: Mr Jassat, yesterday when we adjourned, it was understood that you would be afforded an opportunity at half past nine this morning to be here. We haven't had a word from you as to why you have shown this Committee the courtesy of an explanation as to why you were not here or to apologise for your non-attendance this morning. It was arranged that you were going to be allowed to question witnesses at half past nine this morning and members of my Committee would like to know why.

MR JASSAT: I am sorry that I haven't apologised. As you know, I came into this matter at the last minute, as I indicated to you yesterday. I had other commitments, we had to be in court this morning, and I was trying to get out of a case this morning, but unfortunately it proceeded and finished at eleven o'clock. Immediately that finished I had no way of contacting the Committee because I did not have a telephone number and immediately I got a call I arrived at this hearing. To that end I don't want to be disrespectful to this Committee, but I must apologise again.

JUDGE NGOEPE: You say that you came here as a response to

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a telephone call you received from us?

MR JASSAT: Yes, I was on my way here and I got a call as well from a lady by the name of Tando. I believe that was at the request of Mr Brink.

JUDGE NGOEPE: I was just wondering what would have happened if we had not made a call.

MR JASSAT: I was on my way. The other difficulty of course I've had is that in preparing for this hearing I had no documentation, I have come completely blind into this hearing and I've come here merely to assist Mrs Jama.

CHAIRMAN: I don't think that is the problem; that's not the problem. The problem is that it was arranged at half past nine this morning that you would be here. Yesterday we knew that you had no documents, you made that point yesterday. We are talking about the fact that you did not attend this morning, nor was there any explanation offered for your not being here.

MR JASSAT: I have tendered an explanation, Mr Chairman. I was asked to address this Committee in response to the application. Had I been asked at the initial outset as to why I was not here, I would have explained that. Now that you've raised it, I have explained it, and I hope you will accept the explanation. Unfortunately I had other commitments in court. It wasn't appointments, it was a court matter which should have been adjourned but ....(intervention).

ADV DE JAGER: But why didn't you tell us yesterday about it, you knew about your court appointment. Why did you agree to be here at half past nine this morning?

MR JASSAT: Sorry, I was told to be here at half past nine.

JUDGE WILSON: You requested the opportunity to put

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questions this morning. You weren't told. You yesterday applied to be able to question this morning, do you remember that? Do you remember asking if you could stand down for this morning to put your questions?

MR JASSAT: I said I was going to take instructions from my client, Mr Chairman.

JUDGE WILSON: Why do that when you knew you had an appointment in court?

MR JASSAT: Mr Chairman, I didn't have my diary with me. I had come in as a last minute legal representative for Mrs Jama. I've come here to assist Mrs Jama and to that end I hope I have achieved that. But I've had appointments made in respect of court matters, those are fixed long before this hearing. Had adequate notice been given to Mrs Jama and had she consulted me there wasn't a question of probably double-dating so to speak.

MS KHAMPEPE: Are you able to ascertain from Mrs Jama what the age of the late Mr Jama was at the time of his death?

MR JASSAT: I was told that he was born in 1972.

JUDGE NGOEPE: Was he still at school at the time?

MR JASSAT: Yes, he was going to go to school. The reason why he left Richmond was because of the problems that were taking place in Richmond and he had to flee, and that is the reason why he came to stay in the area near Edendale.

CHAIRMAN: It is a convenient stage to take the adjournment. We will now adjourn and resume at two o'clock.

MR BANADE: Mr Chairman, just to make sure. I would just like to hear from you if you have finished with these three applicants and if we can leave for Bloemfontein at this stage. Very briefly I would like to know if you intend to proceed with the next applicants.

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144

CHAIRMAN: Yes, your client's further attendance will not be required. They are excused and they may leave.

MR BANADE: Thank you very much, Mr Chairman.

COMMITTEE ADJOURNS

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ON RESUMPTION AT 14:00

CHAIRMAN: Before commencing with the next matter, that of Mr Mzimela, have we ascertained whether the relatives of the deceased or his next-of-kin are present and, if so, what their attitude is to this application?

MS THABETHE: Mr Chairman, I have had an opportunity to consult with the victims, they are here. It is the wife of the deceased and the brother of the deceased. Basically what they said to me is, as long as the applicant makes full disclosure of the truth, they don't see why they should oppose the application for amnesty.

But I outlined to them the function of the Amnesty Committee as a whole and the fact that it might appear from the applicant's evidence that the whole incident was political. They then said to me they are not aware of such a fact and their only concern with the application for amnesty on behalf of the applicant, and if he is granted amnesty, is their safety. They are concerned about that.

I then outlined to them their rights to say something if they want to. They said they will think about it and they are more interested in hearing what the applicant has to say.

CHAIRMAN: ... it is therefore not possible at this stage to say whether this application can be disposed of this afternoon, or can we say that?

MS THABETHE: Mr Chairman, I don't see why it shouldn't be disposed of this afternoon.

CHAIRMAN: Mr Wills, you appear for the applicant in this matter.

MR WILLS: That is correct, Mr Chairperson.

CHAIRMAN: And are you prepared to proceed with your

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146

application in this matter?

MR WILLS: That is correct.

CHAIRMAN: And are you prepared to proceed with your application?

MR WILLS: I am indeed, Sir.

CHAIRMAN: You may do so.

MR CELINHIANHIA ZENITH MZIMELA: s s

EXAMINATION BY MR WILLS: Mr Mzimela, can you tell the honourable Committee as to why you are applying for amnesty?

MR MZIMELA: I have come to apply for amnesty with regard to Mr Mkhononodaka Gumede's death and I was directly involved in his death.

MR WILLS: Will you tell the Court the circumstances surrounding Mr Gumede's death.

MR MZIMELA: From 1990 when the political organisations were being unbanned, the IFP as a political organisation that existed at the time, we stay in the rural areas at the Chief's place and we believed that other political organisations were not supposed to exist and some people got involved with different political organisations and there was a conflict among these political organisations especially with regard to IFP and ANC. And Mr Gumede was the Chief's councillor. He was one of the prominent members of Inkatha in that area. And as from 1990 there were certain occurrences that took place because on one particular day there was a meeting at the Chief's place Nchinga, and Montunkosi Gumede, who was a soldier, died. Montunkosi was an ANC member. Because on that particular day that he died they said that he apparently said he was an MK soldier and they were nothing, that's why they killed him. And we have a belief that the followers were doing

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this because they had taken orders from their leaders.

MR WILLS: This individual you said was killed, where was he killed?

MR MZIMELA: He was killed at Mjeti, at the Chief's place, where there was an Inkatha meeting.

MR WILLS: Who did the community believe killed this individual?

MR MZIMELA: The community believed that there were certain people from Eskhwani(?) who were shown by the local residents that this was the man. Whether he did utter those words or not I am not clear, but he was apparently against the IFP.

MR WILLS: Mr Mzimela, I would like you to listen very carefully to the questions I am asking you. Was there a belief that a certain political party was behind the killing of this individual, and if so, which political party?

MR MZIMELA: It is something that happened. It was the IFP which had convened a meeting at the Chief's place on that day. It was directly involved in the killing.

MR WILLS: Can you give the honourable Committee an estimate as to the date of this occurence?

MR MZIMELA: I don't think I will be able to be specific, but it was in mid-1990. Then in December an attack took place, another member of Inkatha, (name indistinct) Mzimela, was attacked and killed in his house together with his wife as well as his three-month old child. At that time the Chief had put one of his sons in his position. According to the information that we got it was discovered that he had been killed because he was a member of the ANC and he was mobilising the people in that area to be members of the ANC. And they said that he should be killed because

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he was going to make people get aligned with the ANC. On that day that they attacked his place they went to attack a certain family by the name of Xila, whom it was discovered that they were also ANC aligned. His name was Xoto Xila. Luckily they couldn't find him at his place because he had visited a certain place.

MR WILLS: ... any individuals who were involved in this attack on Bonge Nkosi Panana Mzimela?

MR MZIMELA: Yes, when we did the follow-up as to how he was killed, we got the people who were involved and they were consequently reported to the police, but their case didn't go any further.

MR WILLS: Do you know the names of those people?

MR MZIMELA: I think it is an open secret that the Chiefs had what was called the G3's who were keeping guard over them and on that particular day they were at Chief Lindilize Mzimela Tokosani Nguni. The guns were taken from them on that day. They were taken by an induna by the name of Gabathela Dhlamini. And we asked as to where the guns had been taken to. He didn't want to explain or elaborate and he was scared, so he couldn't do anything because the guns had been taken by the higher authorities and there was a certain man known by Thawo Xila(?) who was working for the KwaZulu Government and driving the cars. We discovered that he was one of the people who was driving the cars that had gone to Bongo Nkosi Mzimela's place to attack. Mlunzani Zungu was an Induna in Makolokolo. It was discovered later on that he was present as well as Mkhononodaka Gumede. They were all there and they convened a meeting before then and they used to have camps at his house before launching attacks. It is the deceased's house. They used to convene

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meetings at the deceased's house.

MR WILLS: What other incidents would you like to reveal to the Committee?

MR MZIMELA: When this took place, when Bonkosi was killed, because they said he should not be a Chief because he was aligned to the ANC, quite a number of other people were his followers and I was also one of his followers. We were aligned to the ANC and it was clear now that the situation was no longer conducive to being an ANC member. It was difficult for us to hide ourselves and we ended up showing the community that we were ANC aligned and we did not believe that we had to be killed simply because we were members of the ANC. It continued. We spoke to the police, as I have already mentioned some names, but the police never went to arrest those people, not even a single one of them was arrested. The very same police, Togozani Mguni was arrested but he was released the following day and that was the end of it. Then in 1991 one comrade by the name of Lucky Mhlongo, who was at Sam's place they went to attack Sam's place and shot Sam there and killed him. The people who did that were the Indunas Gambaqana Zuma, Mandla Nkosi Jaba Mzimela, Douglas Buza Mzimela as well as other people were present, but they were the prominent leaders. So that's why I remember their names. The first problem that we encountered was that as ANC members we were going to be eliminated. And we remained being aligned to the ANC and we didn't want to have any conflicts with the IFP. We used to conduct our meetings in the forests because we did not want to be detected by the Chief because the Chief was an IFP member and we kept on mobilising the community and recruiting them in a clandestine manner and they were able

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to give us information as to what the plans were as far as Inkatha was concerned.

Then in 1992 the IFP was holding a march at Makolokola what they call Nqabani. They said that's where they made resolutions that they were going to harass the ANC people. One of them was Gerhard Vana Mzimela, who was mentioned as the leader of the ANC because in 1991 Harry Gwala and Chris Hani came to Empangeni Hall and he took some of the comrades and that's what made him to be on the wrong side of the Inkatha. We discovered that through Alfred Nutunhlongo, who was at the meeting that was held at (indistinct) Gumede. It happened that on the 22nd February 1992 Gerald was driving his car from Mhlangubu. Because the road was passing at that man's place, he saw the people who were in that meeting but he continued to drive and he proceeded to Maqegana and went to another person called Philemon Ndoda Mzimela to tell him that he had seen Inkatha members conducting a meeting and he said he saw Nontu and he came to warn us that we should take our children away because the Inkatha was going to launch an attack and he left and went to Mhlangubu to another comrade called (indistinct) Zondi. At about six that afternoon he got those people on the road where they stopped his car and they shot him, he died instantly, and they took his car out of the road and threw it out of the road. On that very same night another group of men who were armed went to the house of a certain man who was known as a person who mobilised the community. He also owned a tuck shop and there was a belief that all those people who went into his house to buy were also directly involved in mobilising the community. And whilst he was inside the tuckshop selling he saw a man who was standing at the

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doorway and started shooting indiscriminately. He got under the counter to try and hide himself. Then he got a chance to escape, but he was not injured in any way. Unfortunately three people who were there died and some were injured in the attack. Jongula Mhlongu is one of those who died, Puma Hahlo Mzimela as well as his wife and the others got injured. And one of the people who got injured was an IFP member. But since he got injured he realised that the IFP had actually injured him so he changed floors and joined the ANC.

MR WILLS: Just for clarity, Mr Mzimela. On the 3rd of December 1990, where an individual by the name of Bongo Nkosi Panana Mzimela was killed, is it correct that this individual was in fact your brother?

MR MZIMELA: Yes, that was my brother. We were born from separate mothers but from the same father.

MR WILLS: You also mentioned the death of Gerard Mzimela on the 22nd of the 2nd 1992. Is it also correct that this Gerard Mzimela was your brother as well?

MR MZIMELA: Yes, that is correct, he was also my brother. They were born by the same mother with Bongo Nkosi.

MR WILLS: In respect of the death of Gerard Mzimela, what information did you receive as to the identities of the persons responsible for his death?

MR MZIMELA: As I have already explained, he had seen an Inkatha meeting that was convened and he also saw Alfred Muntu Mhlongo. He is the one who told him that he was from the meeting and that a resolution had been taken that because he had taken certain comrades to the hall to speak with Chris Hani and Harry Gwala he was busy mobilising the people to be aligned with the ANC so he should be killed.

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CHAIRMAN: I thought the question was who was he killed by?

MR MZIMELA: The people who killed him were a group, but amongst them was Mr Mkhononodaka Gumede and Mike Mhlongo, Mako Hlomba Gumede who stays at Mgwelizani. He had come to kill people in that place.

MR WILLS: This meeting that you referred to, at whose home was this meeting held?

MR MZIMELA: The meeting was held at Mr Gumede's place who was a councillor in that place, that is the Chief's place.

ADV DE JAGER: Could you kindly clear up, I am not sure. Was the deceased in this application amongst the members who attacked his brother?

MR WILLS: Yes ... (inaudible) ... heard the evidence that the deceased, this Ndudaga Gumede was named by the witness in this regard. I am seeking to clarify the issue of where the initial meeting took place, and I think that will throw further light on this issue. Mr Mzimela, you must listen to the questions carefully and just answer the questions. I want to know the name of the person whose home the meeting that you referred to was held at.

MR MZIMELA: It was at Mr Ndudaga Gumede, the deceased.

MR WILLS: ... the person in respect of which this application is made.

MR MZIMELA: That is correct.

MR WILLS: I want you to tell the honourable Committee exactly what you did on the 29th of the 2nd 1992 concerning the death of Mr Gumede.

MR MZIMELA: As I have already explained, that on the 22nd, one of my brothers, Gerard Mzimela, died. Then it was a weekend after the 29th, we were preparing for his funeral, and Saturday morning we took the bus and went to town to

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prepare for the funeral. It was myself, my late brother, Sibani Mzimela, Mandlagayiso Mzimela also late, Philemon Dodo Mzimela also late, and we boarded a bus. At Mr Gumede's place, as I have already mentioned, that it was close to the road. The bus stopped at the busstop. We saw him at his place. Philemon used to call him Uncle, because they were distantly related, and he said there is the Uncle and he was giving us problems. So we saw that he was there in his house. I had a gun with me and it was my gun. Sibani, my younger brother, also had a gun we had borrowed from another policeman who worked for the Murder and Robbery Squad. We decided that he was very troublesome, and we decided this was the opportunity for us to get him and we got off at the next stop, that is Sibani and myself, and the other two went to town to try and get some things to prepare for the funeral.

We proceeded to his house and we had 9mm guns Parabellum. When we got into the yard we found his wife who was bending down and washing dishes and when she saw us she ran away because she saw the guns. And I heard the toilet flushing and we proceeded to the toilet. We found that he was taking a bath. I stood at the door and I shot him. The finished the first magazine and put the second one and I also shot him. And when Sibani tried to shoot his gun locked and got jammed and I took the gun away from him and I continued to shoot him. We picked up the empty or spent cartridges and we ran away. We went back to Umaqikani(?).

MR WILLS: Is it correct that you were the only person who was responsible for firing the shots which killed

MR MZIMELA: That is true, because Sibani did not shoot. When he tried to shoot his gun jammed and I took it and

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MR WILLS 154 MR MZIMELA

continued to shoot.

MR WILLS: The only two persons involved in the attack were yourself and Sibani, although Sibani didn't shoot at the time.

MR MZIMELA: That is true.

MR WILLS: Did you shoot anybody else at the kraal that day?

MR MZIMELA: Unfortunately no.

MR WILLS: (Inaudible)

MR MZIMELA: No, not other persons.

MR WILLS: Can you explain to the Committee why you actually killed this individual?

MR MZIMELA: As I have related what happened in that area, we were not in good terms, the ANC and the Inkatha. Inkatha didn't want the ANC in that area. As I've told you that Mr Gumede was the Chief's councillor in that area. He was together with the Booi Mzimela Kampaqele. All these people were involved in the killings of the comrades.

MR WILLS: I just want you to give the Committee a few details as regards your involvement with the ANC. When did you first join the ANC?

MR MZIMELA: As I have explained, that when all the liberal organisations were unbanned, that's when we started being active. We joined the ANC. From 1990 to 1992 we had an organisation committee and we launched our branch officially. There I was a general secretary on the Ongoye Branch, ANC Youth League.

MR WILLS: Did you have any meetings during 1990 as ANC members concerning the violence in your area?

MR MZIMELA: Yes, we did, even though there were few because we were few, other people were dead, that's when we got united. We used to hold these meetings in bushes or

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MR WILLS 155 MR MZIMELA

forests.

MR WILLS: You have testified to the effect that there was a lot of violence going on in your area and that this violence was politically related. What steps did you decide to take at these meetings as regards this violence?

MR MZIMELA: (CHANGE OVER TO TAPE 4B) ... because we realised that the police were not caring a damn about it because most of the incidents we used to know who were involved and we were telling the police and the police were ignoring those things. Myself, I used to take care on that part because I was trained under the SNDF.

MR WILLS: Turning to your family ... former Chief in that area, is that correct?

MR MZIMELA: That's correct. My father was Lindelishele Mzimela.

MR WILLS: Is it not a tradition that the first born son of the first wife becomes Chief?

MR MZIMELA: It is like that.

MR WILLS: Is it also true that Bongo Nkosi Panana Mzimela was in fact the traditional heir to your father?

MR MZIMELA: It was supposed to be like that.

MR WILLS: Can you tell the Court why he didn't succeed?

MR MZIMELA: As I have already explained, that they decided to kill Bongo Nkosi because he was aligned to the ANC and they decided that it was going to be a mistake if he takes over. And the Chief who was there was very sick and he was in Nqgwelizani Hospital and then he told his Indunas who must take over, so he told them it must be Booi. They knew that this was going to cause conflict because Bongo Nkosi was still alive, that's when they decided to kill him.

CHAIRMAN: What is Booi's surname?

4B - 11.2 MR MZIMELA: /...

MR WILLS 156 MR MZIMELA

MR MZIMELA: Which Booi? Booi Mzimela.

CHAIRMAN: Is it Booi Mzimela?

MR MZIMELA: Booi Mzimela.

MR WILLS: Which political party is Booi Mzimela aligned to?

MR MZIMELA: Inkatha.

MR WILLS: And why do you think he was nominated by your father to succeed him?

MR MZIMELA: I think it is because the late KwaZulu Government believed that every Chief should be Inkatha that's why then they chose Booi Mzimela my brother, because he was an Inkatha, that's when they decided that Bongo Nkosi wasn't going to be a right Chief because he was an ANC.

MR WILLS: Thank you, Mr Chairperson and hon members. I have no further evidence in chief at this stage.

NO FURTHER QUESTIONS BY MR WILLS

MS KHAMPEPE: Can I just get some clarity, Mr Wills. Your witness has referred to a Chief who was sick at the time. Would that be his father? Is he making reference to his father?

MR WILLS: That is correct.

MR MZIMELA: Yes, that's correct, that's my father Lindelishle Mzimela.

MR WILLS: If we could just clarify this. Lindelishle Mzimela, when did he die?

MR MZIMELA: If I am not mistaken, it was June 1993 because he was sick.

MR WILLS: How long before his death did he nominate Booi Mzimela to be his successor?

MR MZIMELA: It was a very short time, because he was sick when he said this. He died in 1993, but he said so in 1990. And the person who took over his duties was Booi. In 1990

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MR WILLS 157 MR MZIMELA

Booi took over officially.

CHAIRMAN: Booi took over officially while your father was still alive.

MR MZIMELA: Yes, that's correct.

CHAIRMAN: Any questions?

CROSS-EXAMINED BY MS THABETHE: Mr Mzimela, I want you to clarify something for the Committee. The deceased was Chief Chancellor at Makoloko Reserve, is that correct?

MR MZIMELA: That's correct.

MS THABETHE: Your father was Chief where, where was he Chief? In the same area?

MR MZIMELA: That's correct.

MS THABETHE: What was the relationship between your father and the deceased?

MR MZIMELA: There is an Induna and councillors in every area. Like I said he was a chief councillor. It is not like he was above the Chief.

MS THABETHE: ... under your father's wing.

MR MZIMELA: That is correct.

MS THABETHE: ... evidence by you in connection with your brother's death and in connection with the IFP/ANC wars in your areas. But what I am not clear about is why was specifically the deceased killed in relation to everything you've said? Can you explain that to the Committee?

MR MZIMELA: As I have explained that he was the leader of the Inkatha people. And they had a meeting and that's where they killed my brother who was also a soldier. As I've explained this went on until my brother Bongo Nkosi was killed and some people who attended those meetings used to tell us most of those meetings were held in his place.

MS THABETHE: ... that Mkhononodaka was involved in the

4B - 11.2 killings/...

MS THABETHE 158 MR MZIMELA

killings of your brothers, is that correct?

MR MZIMELA: That's correct.

MS THABETHE: That's correct.

MS THABETHE: What proof did you have of this hearsay that Mr Gumede was die person who was involved in killing your brothers?

MR MZIMELA: It is obvious and it was obvious at that time. People who used to attend those meetings. And in these meetings that's where decisions were taken that they should kill these ANC people, as I have already mentioned some of the meetings which were held at his house or his place. It wasn't everyone who attended those meetings who agreed with this, so they used to come back to us and tell us who said who to kill.

MS THABETHE: You refer to meetings of the IFP that were held at Chief Gumede's place, that is the late Gumede. As far as I know the tradition is if you are a Chief the meetings of the community are usually held at the Chief's place. Were there such meetings that were held actually, community meetings before?

MR MZIMELA: I think you are asking the right person if you are asking like that, because I know most of the meetings were held at Chief's place, at my father's place, and these meetings were different. In the old KwaZulu Government, all the Chiefs were Inkatha members. Mr Gumede was a Chief's councillor and the councillor has the right to call a meeting and these meetings were to ... (break in recording) ... so he like to further the aims of the organisation.

MS THABETHE: You didn't report it to the police? You didn't try and investigate it? You decided that this was true and you proceeded with plans to revenge.

4B - 11.2 MR MZIMELA: /...

MS THABETHE 159 MR MZIMELA

MR MZIMELA: I think you are asking me, like I explained to you, all these incidents which took place at the area, no single one where the police took a stand we reported. I even explained to you that a policeman who was guarding a Chief, one of them was taken by us to the police to explain and all the people who were implicated in the police never did a thing about it. Police never arrested anyone. Also in Gerald's incident, I was there, and he was killed on Saturday evening. The next day, Sunday, we told the police, we explained everything to the police, we gave the police e every information we had, but nothing was done. And after the meetings people were telling us whatever decisions which were taken there and we used to tell the police all this. And were told that there were guns which came by a Citi Golf from Ngwelizane. One guy's name was Makothombani and he is well-known because he was a killer. Police were told about this, nothing happened. The following week my brother was killed. Even though we reported before time to the police, nothing was happening. I think even if you are lying to the police the police must prove if you are lying to them.

MS THABETHE: Was the deceased killed because he gave instructions that your brothers must be killed, or because he actually was involved in the killing? Can you make that clarification please?

MR MZIMELA: He was the one who was taking the decisions and giving the instructions and he was personally involved, he was there when he was killed.

CHAIRMAN: This man the deceased, was your father's counsellor.

MR MZIMELA: Yes, he was.

CHAIRMAN: Who was the one that actually killed Gerald?

4B - 11.2 MR MZIMELA: /...

CHAIRMAN 160 MR MZIMELA

MR MZIMELA: As I have explained, a mob was there and Mr Gumede was there and he was a leader as well. Makhothlom Gumede from Ngwelizane and he is Gumede's son. He went to fetch him from Ngwelizane to do what he did. There were many people. Some of them I don't remember their names.

CHAIRMAN: And in respect of the death of your other brother?

MR MZIMELA: What we heard is that there was a meeting at Mr Gumede's house and a decision was taken that Bong Nkosi must be killed. Dawuxele was there.

CHAIRMAN: (Inaudible)

MR MZIMELA: I will be lying if I can name one person because it was a mob. They came by night with cars.

CHAIRMAN: ... at the time?

MR MZIMELA: I wasn't there, I was at work.

CHAIRMAN: Where?

MR MZIMELA: SADF at Mtulo.

CHAIRMAN: The decision to kill the deceased, was that your own decision?

MR MZIMELA: Yes, it was mine.

CHAIRMAN: Precisely how did you kill him?

MR MZIMELA: It was Saturday morning on the 29th. I was with my late brothers, Sabani Manglagayiso Philemon. We took a bus to Empangeni. We were going to buy some stuff which we needed for the funeral of Gerald. The bus stopped next to Mr Gumede's house and I saw Mr Gumede outside his yard and then I told my brothers that there he was, Mr Gumede. Because it was difficult to see Mr Gumede and since he was killing comrades I told my brothers this was a convenient time for me to go visit him. I had a gun, a licensed gun and Sabani, my brother, also had a gun

4B - 11.2 belonging/...

MS THABETHE 161 MR MZIMELA

belonging to another policeman. We agreed that we must go and see Mr Gumede and then we said we must go and try to kill him because people were scared of killing him. We went there. We passed his house and then we used the back entrance. We took our guns out. We went inside his house and his wife was washing dishes and then she ran away. I heard a toilet flushing. I went there. When we arrived there that's when I started shooting at him. I finished the first magazine and Sabani, my younger brother, tried to shoot him as well, and he failed and then I put another magazine. I finished it. I took Sabani's gun. I finished that magazine as well. That's when we ran away back to Maxigani, at Sabani's house. I will be lying if I can tell you how much because one magazine had 15 and then the second one only seven rounds were left. And then another one had 15 as well. I think only one was left.

MS KHAMPEPE: Mr Mzimela, you went to town specifically to attend to the funeral arrangement of your late brother on that day.

MR MZIMELA: That's correct.

MS KHAMPEPE: Yet you were armed and your brother Philemon was also armed.

MR MZIMELA: Yes, like I said, my gun was a licensed gun, only Sabani's gun, which belonged to another policeman, and the situation was so bad and tense that we were supposed to be armed all the time.

MS KHAMPEPE: Did you travel with your firearms all the time?

MR MZIMELA: That's correct.

MR WILLS: Mr Chairman, there is one more issue that I would just like to raise, if it is possible at this stage.

4B - 11.2 CHAIRMAN: /...

MR WILLS 162 MR MZIMELA

CHAIRMAN: Yes.

MR WILLS: These IFP meetings, how were they called and who called them?

MR MZIMELA: The only person who had rights to call meetings was the Chief. The Chief will do this by telling the Chief's counsellor. The Chief's counsellor also had rights to call meetings. He used to call meetings at his house. Like I have already told you that decisions were taken at his house as to who must be eliminated.

MR WILLS: Can you tell the Committee what would happen if persons didn't go to those meetings?

MR MZIMELA: People who never attended these meetings received letters from Mr Gumede. He used to tell them that they must choose whether they want to stay in that area or to leave the area. For example, Beki Xhosa, who was our chairperson, his house was targeted by Mr Gumede. He used to write these letters to his house.

CHAIRMAN: Who was it, which person was it? To whom was such a letter written?

MR MZIMELA: Mr Gumede used to write these letters to people who never attended his meetings. He used to tell them they must choose whether they want to stay there or to die. And one family, Xulu's family, received that letter and they left that place and people don't know where he went.

MR WILLS: Just one final issue. Mr Mzimela, you have killed a person. His relatives are here. How do you feel about this now?

MR MZIMELA: Mr Gumede's death is really disturbing me. I never had any aim or object to kill someone, but the way the IFP was killing people in our area, we had no choice. We had to defend ourselves because they were killing us,

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MR WILLS 163 MR MZIMELA

attacking us all the time.

MR WILLS: No more questions from Mr Chairperson.

MS THABETHE: Mr Mzimela, I am not saying amnesty will be granted to you and I am not saying amnesty will not be granted to you. But should amnesty be granted to you, are you going to go back to that area you were staying in?

MR MZIMELA: I will be very much happy if this Commission can grant me amnesty. As to going back to that area, I don't think I will. I will go back to Eskaweni and only if the situation down there is cooled down that's when I will go back, but now I am scared.

MS THABETHE: ... on behalf of the victims, because as I mentioned earlier on, I consulted with them. They raised a concern with me that what if you come after them. Do you have any comments on that?

MR MZIMELA: With all due respect to your Committee, Mrs Gumede is my witness, she was at her yard that day. I didn't say a thing to her because she didn't do anything to me. The person I was after was her husband and I don't have anything against Mrs Gumede. It will be a mistake if today I can go back and want to kill her. I don't have any reason why to go after Mrs Gumede and in all this incidents which happened, Mrs Gumede wasn't involved at all.

CHAIRMAN: What about the children of the deceased?

MR MZIMELA: To all the family members, I would like to tell them that I am very sorry and unfortunately I don't know his children and the only person that I can talk about in all these incidents is Mrs Gumede and I don't have a reason to go after her.

MS THABETHE: The next of kin of the victims would like to say something.

4B - 11.2 CHAIRMAN: /...

MS THABETHE 164 MR MZIMELA

CHAIRMAN: Yes.

ADV DE JAGER: There is one thing that is not quite clear to me. The deceased was a counsellor for your father, is that correct?

MR MZIMELA: That's correct.

ADV DE JAGER: And he called meetings on behalf or instructions of your father.

MR MZIMELA: There were some meetings which were called by Mr Gumede and he received those instructions from my father and there were some other meetings where he himself will just call those meetings.

ADV DE JAGER: Were all those meetings held at your father's house?

MR MZIMELA: Some of them. If it was my father who called those meetings, those meetings were held at his place, at

my father's place. If it was Mr Gumede they were held at Mr Gumede's place.

ADV DE JAGER: And the resolutions taken to kill I presume was taken at your father's house.

MR MZIMELA: Unfortunately no. People used to tell us who went to these meetings ... (CHANGE OVER TO TAPE 5A)

It is not easy for me to talk on behalf of my father because he never told me, but what I believe is that he couldn't have taken such decisions that his sons must be killed. Things started changing when my father elected Booi to take over. But I don't think he is the one who said Bongo Nkosi must be killed. And what I am sure of is that these (indistinct) were taken. I don't know why the police who were safeguarding my father had no guns that night.

CHAIRMAN: Did you ever discuss this with your father?

MR MZIMELA: No, I didn't talk with my father. My brother

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CHAIRMAN 165 MR MZIMELA

Eward was still alive and traditionally he was the one who was supposed to talk to my father in matters like that.

MS KHAMPEPE: You didn't send your brother to talk about this with your father?

MR MZIMELA: No, I didn't, but he also took that decision to go and speak with my father.

MS KHAMPEPE: Isn't it a fact that you were adversely affected by the conflict in your area. Your family was in fact divided into two, with some family members supporting the IFP and some family members supporting the ANC.

MR MZIMELA: That's correct.

MS KHAMPEPE: And isn't it a fact that the meeting which were convened by the Chief counsellor, the late Mr Gumede, wherein various decisions were taken to eliminate your brothers, were in fact convened at his own instance and at his residence and not at your father's residence?

MR MZIMELA: I think so.

MS KHAMPEPE: ... Mr Mzimela, we want you to tell us.

MR MZIMELA: Like I explained, that we used to get reports about these meetings and these reports used to come back with decisions as to who to eliminate and all those meetings were held at Mr Gumede's house, not at my father's house. At Mr Gumede's house, that is where the decisions of eliminating my brothers were taken.

JUDGE WILSON: ... that Booi took over I think as Chief in 1990.

MR MZIMELA: That's correct.

JUDGE WILSON: And was your father not able to perform the functions of Chief after that?

MR MZIMELA: Yes, that's correct, he was sickly, very sick.

And Booi took over until 1991, he was officially put as a

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JUDGE WILSON 166 MR MZIMELA

Chief.

JUDGE WILSON: And is it also correct that ... told us about your brother Hewitt Gwenge was killed in May 1992.

MR MZIMELA: Yes, that's correct.

JUDGE WILSON: And your youngest brother Sabani was stabbed in February 1994.

MR MZIMELA: That's correct.

JUDGE NGOEPE: What did you hope to achieve by killing the deceased?

MR MZIMELA: The way things were happening, I thought it was going to be better if he was not alive, because he was the one who was behind all these killings.

JUDGE NGOEPE: Was there any improvement of the situation after his death?

MR MZIMELA: There was no improvement, it got worse. Because it was for the first time that the IFP lost someone who was a leader. It got worse than before because the IFP experienced this for the first time, losing someone who was a leader.

JUDGE NGOEPE: (Inaudible)

MR MZIMELA: That's when they got out and they were not hiding anything and they said because I did that everyone who was an ANC member must be killed in that area.

JUDGE NGOEPE: ... and this may be wrong, I got the impression that you were not very enthusiastic in referring or acknowledging the late Chief as your father.

MR MZIMELA: That is not true. That could be a mistake if it was conveyed as being so.

JUDGE NGOEPE: I was just wondering whether the conflict could have gone that far. Anyway, I accept that I could be wrong.

5A - 11.2 CHAIRMAN: /...

167

CHAIRMAN: Thank you.

MR WILLS: No re-examination. Thank you, Sir.

MS THABETHE: Chairperson, should I proceed to call the victim's next-of-kin?

CHAIRMAN: Is the applicant not calling any other witness?

MR WILLS: The applicant will not call another witness at this stage, thank you, Mr Chairperson.

CHAIRMAN: Very well.

MRS ELIZABETH GUMEDE: s s

EXAMINATION BY MS THABETHE: Mrs Gumede, is there anything that you would like to say before this honourable Commission?

MRS GUMEDE: Yes.

MS THABETHE: Could you please continue?

MRS GUMEDE: I want to say that I saw the applicant coming to my place and he had come to kill my husband. I heard him say yes, and when I looked up, because I was looking down, I saw him firing. He fired twice and that's when I ran away.

MS THABETHE: Who was saying yes?

MRS GUMEDE: He is the one, that is the applicant, the killer.

MS THABETHE: You may continue.

MRS GUMEDE: At the time I didn't know him, but when the police came to investigate the matter I told them as to what he was wearing and I further conveyed that I did not know him. They went to look out for him but they couldn't get him. They got two men and I said these were not the ones. And the second time they brought him.

MS THABETHE: I think if you would like to ask the Commission or put any reason forth as to why the applicant

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MS THABETHE 168 MRS E GUMEDE

shouldn't be granted amnesty.

MRS GUMEDE: What I want to know is, I did hear his testimony as he spoke, but I personally as the person who stayed with my husband, I am going to deny all that the applicant has said as he mentioned certain meetings where resolutions were taken for certain people to be eliminated. As he was not present he could say that because he did not know what happened in those meetings. My wish was that this applicant should know that whatever he did, he did it because of the people who hated my husband. The brothers that he is referring to, in the first place my husband was at Ngwelazani Hospital at the time that they died. He was there admitted for three months, and the other ones, that is the two following, especially the one who died at Mzimduzu, I was at my place together with my husband and we heard some gunshots beside the road and I was inside the house, I was cooking. I went out and ran to my husband. After quite some time we heard screams from the Mhlongo family of Mhlongo Place.

MS THABETHE: Are there any meetings that were held in your house?

MRS GUMEDE: The meetings that used to be held there according to my own knowledge, were meetings with regard to the Chief's monies or Chief's collections, meetings where people had brought their matters to be solved or problems or cases. And the Chief would deal with those cases and they were passed on to the Induna. That is all I know about the meetings that took place.

MS THABETHE: Were you always present at the meetings?

MRS GUMEDE: Yes, I was always present because the meetings were held in my yard and even women were allowed to attend

5A - 11.2 those/...

MS THABETHE 169 MRS E GUMEDE

those meetings.

MS THABETHE: Is there anything else that you would like to say?

MRS GUMEDE: Yes. I would like to point out and clarify to the applicant that he killed my husband for no particular reason. As he has already explained, we heard the attacks but my husband was not present. We saw a car coming from Nqewani and this car wanted to pass through a bridge and when the other car which was coming from International came and it took a U-turn and went back to the other car which was standing at that time and that is where they started fighting. And when there was quiet the other car went back and we were watching the attack that took place between these cars. When the other cars came to pass through the bridge and some came to watch the incident and the police also came, I want to clarify that my husband was not present at that time. The applicant was misled by certain people who hated my husband.

MS THABETHE: Are you through?

MRS GUMEDE: Yes, I am.

MR WILLS: Mr Gumede, you have seen me prior to this day in the court proceedings at Matubatuba. Mrs Gumede, both my client and myself are very sorry for the incident that occurred and I don't want to and I don't intend to in any way show any disrespect towards you by cross-examining you on the evidence before this Commission. I don't think it would be appropriate. But on behalf of my client I am instructed to convey his wish that there can be real peace in the area and that this violence can stop. Thank you.

Mr Chairperson, the applicant has requested if he

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MR WILLS 170 MRS E GUMEDE

could say something at this stage, is this permissible?

CHAIRMAN: Does he wish to say something this Commission or to this witness?

MR WILLS: To the witness, Mr Chairperson.

CHAIRMAN: He may do so.

MR WILLS: Thank you.

MR MZIMELA: Mrs Gumede, I respect you very much. I just want to say how deeply hurt and regretful I am because you have lost your husband and a friend. That was not my aim to just kill your husband. It was the situation that forced me to behave in the manner that I did. As I have already pointed out before, that I wish that you could be free because you were present when this took place. You saw that you were not directly involved and I could not find any reason to attack you and I do not have any plans to do so in the future. I wish to express my sincere apologies to you. I thank this honourable Commission for having granted me the chance to address Mrs Gumede.

JUDGE NGOEPE: Mrs Gumede, was your husband a member of the IFP?

MRS GUMEDE: He was the Chief's counsellor.

JUDGE NGOEPE: Does that automatically mean that he must have been a member of the IFP?

MRS GUMEDE: Yes, he was a member of the IFP.

JUDGE NGOEPE: Was he an active member of the IFP?

MRS GUMEDE: According to my observation I think he was a member of Inkatha and he was prominent. And I don't know how to put it. I think this whole thing was some sort of excitement. I don't know whether he knew the significance of being a member of Inkatha.

JUDGE NGOEPE: You have just said that ... did he hold any

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JUDGE NGOEPE 171 MRS E GUMEDE

office? Was he a chairman or secretary or something?

MRS GUMEDE: He was not educated and as a result he couldn't hold any particular position.

CHAIRMAN: Was he a leader of his people in Inkatha?

MRS GUMEDE: According to my own observation I think I could say that he was a leader but I don't know what being a leader means. Maybe if you could specify.

CHAIRMAN: He was someone to whom others came for advice and people followed his advice.

MRS GUMEDE: Yes, people used to come to my place and ask for help and also with regard to their cases or their matters or whatever conflict there existed within the community.

CHAIRMAN: Has the question of reconciliation been explained to her? I think earlier on you've told us but would you not want to put any questions to her in that regard?

MS THABETHE: I basically explained how the Amnesty Committee works, in general basically. I didn't get into details.

MRS GUMEDE: Yes, I have heard. May I say something with regard to this Commission? I do hear him apologising and saying that he wanted to be granted amnesty. I am not the only one. His brother is also present and I want to say that this amnesty, I personally as the widow of Mr Gumede, I am under the Chief, I cannot come here and say that you may be granted amnesty, because I fall under the Chief and therefore cannot represent myself and I have children who are not going to school now because of the shortage of funds and my husband did not have any relatives. Now I do not know as to what should happen. And I do understand that he wants to go and maintain his kids because his brothers were

5A - 11.2 also/...

ADV DE JAGER 172 MRS E GUMEDE

also killed.

ADV DE JAGER: Mrs Gumede, could I ask the members of the Rehabilitation and Reconciliation Commission, there is one of them sitting next to you, could you kindly give a full statement to them to explain what your financial position is and what's the position of your children so that they could report back to the Commission in order to see whether anything could be done to assist you.

MRS GUMEDE: I will explain that they are not attending school. I don't have a place of abode and I can't keep head above water. My house was burnt down. And where I am working I only get R200 per month and my busfare is R70.99 per month and I only have R100 to take home and I cannot maintain my children on that amount. (BACKGROUND NOISE)

MS KHAMPEPE: We shall request you to please behave yourselves because this is not a joke and we cannot laugh. Can we please behave ourselves accordingly.

CHAIRMAN: She has already been told the person sitting next to her represents a committee. If she thinks that she requires assistance from that committee she must give details and whatever particulars are required to the members of that committee. Does she understand that?

MRS GUMEDE: Yes, I do.

CHAIRMAN: Thank you very much. She can go down.

MR WILLS: Mr Chairperson, my submissions will be very brief. I submit, with respect that the evidence before the honourable Commission is such that ... (CHANGE OVER TO TAPE 5b) ... The applicant has satisfied the requirements for the granting of amnesty in respect of the deed that he committed. I submit that he has fully disclosed his involvement. He has answered questions honestly and without 5B - 11.2 any/...

MR WILLS 173 ADDRESS

any attempt whatsoever to evade his own responsibility for these actions. At no stage has he attempted to blame anybody else and he has been truthful as regards the fact that this was not committed on the orders of any other person, but that it was his own decision.

In addition, Mr Chairperson, I am of the view that the evidence before the Committee is such that it is clear that this incident arose directly out of the political conflict that has ravaged this part of the country and it is my respectful submission that had this conflict not existed then this incident clearly would not have taken place.

That is the extent of my submissions, Mr Chairperson.

ADV DE JAGER: Suppose he was misinformed about the involvement of the deceased, and that the deceased was not at all involved in the killings of his brothers, could that have any bearing on his own motivation?

MR WILLS: Motivation is, with respect, obviously something which is a personal appreciation. If he had been misinformed, with respect, his motivation would have still been political but it would have been made on a misinformed basis. I think, however, that there is evidence before the Commission which indicates that it is improbable that he was misinformed, and to that extent I cite the evidence of the deceased's widow who indicated that her husband was a prominent Inkatha person. I also ask the Commission to take note of the fact that in the area at the time, particularly in rural areas in northern KwaZulu/Natal, it was in fact very difficult to organise for the ANC and that prominent members of the Inkatha Freedom Party did in fact restrict the political freedom of association of the ANC in those

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areas.

ADV DE JAGER: Isn't the impression created that he acted to revenge the death of his two brothers and his family?

MR WILLS: That was a question I thought myself for some time. Clearly there is that element where unfortunately his brothers were killed in the violence. However, there are two reason why I think that it was not simply a personal revenge.

The first is that the very nature of the conflict in the area had in fact divided the Mzimela clan along political lines. And had it not been this political division, his brothers would not have been killed in the first instance.

ADV DE JAGER: Mr Wills, I am inclined to agree with you that we should differentiate between personal revenge and perhaps political motivated revenge, is that the point you are trying to make?

MR WILLS: I don't think it is as simple as revenge. I cannot deny that there is an element of revenge in the attack - in the applicant's motivation - but clearly it goes further than that.

The second point that I wanted to make is that he has testified to the Commission that he was involved in organising for the ANC generally and that the deceased in this matter he saw as a major obstacle towards this organisation. With those two factors I submit with respect that there was more to his actions than simply revenge, be it personal or political.

JUDGE NGOEPE: Maybe in all fairness to your submissions, Mr Wills, with regard to the question whether or not it was not just purely for the purpose of revenge, I think your

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MR WILLS 175 ADDRESS

question was asked of him what he had hoped to achieve, and I think his answer shows that he had a greater objective than just a personal revenge, isn't it?

MR WILLS: That is correct, I recall that now. Thank you for that.

JUDGE NGOEPE: And also I think twice, on my counting, he had said, rightly or wrongly, I don't know whether that is true, but twice on my counting he has said that the deceased had killed many comrades. I don't know whether the accusation is true, but the applicant on two occasions has said that the deceased had killed many comrades.

MR WILLS: Yes, that is indeed the applicant's belief.

CHAIRMAN: So you concede that there was an element of revenge in this matter, but it was against a background of political conflict.

MR WILLS: Yes, Mr Chairperson, that is indeed so. I submit that as a result - the close relationship that existed between the applicant and his two brothers, he must have been very traumatised by their death. However, in view of his political involvement, and the general political situation that pertained in that area, particularly emphasising the fact that the applicant was one of the first organisers for the ANC in that area, he was one of the prime movers which later in 1992 resulted in the formation of a branch structure, a formal branch structure. I think that his evidence to the effect that his concern far exceeded the personal aspects of this tragedy.

JUDGE WILSON: Isn't it also a case, as one we've had before, where one must not overlook the tribal politics involved. One must not overlook the fact that he and his brothers were the sons of the previous Chief, were the

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people who would in the ordinary course of events have become the Chief and that there was apparently a deliberate attempt to kill the whole line. Three of his brothers had been killed, including the elder brother who should have been the heir. So it was not only just a personal family it was the line of the Chief's sons and that is one of the reasons I think he said he wanted to stop this killing.

MR WILLS: Yes, that is indeed so, Sir. I think this is a particular tragedy in that it is a clear example of where different political persuasions have caused dramatic divisions within a family and line of Chiefs and obviously this has added to the intensity of the problem.

CHAIRMAN: He said it had been decreed that all Chiefs had to be members of Inkatha.

MR WILLS: Yes, clearly his belief was to that extent. I think the Committee can take judicial notice of the fact that by far the majority of Chiefs in KwaZulu/Natal are indeed Inkatha supporters.

CHAIRMAN: Is there anything you wish to say.

MS THABETHE: Members of the Committee, all I want to say is according to the Act there should be full disclosure of the act committed, and the act must be associated with a political objective.

In my opinion the applicant has made full disclosure of why and how he killed the deceased.

On the question of whether we can have evidence as to whether the deceased was involved in the killings of ANC, it is a fact that we may never know. And we have no evidence to the contrary. Even though the applicant was not acting under any orders, we cannot ignore the fact that unfortunately in the northern KwaZulu/Natal areas IFP and

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MS THABETHE 177 ADDRESS

ANC war fights are a problem, such that most of the time the members of the supporters are faced with having to partake without getting any orders.

I don't think it is my duty really to say whether amnesty can be granted against him. I think that is clearly the Committee's function.

CHAIRMAN: But you can tell us if you think amnesty ought not to be granted.

MS THABETHE: I was just about to say I think the requirements of the Act have been met, but I reserve my opinion whether it ought not to or it ought to be granted.

Thank you.

MS KHAMPEPE: Ms Thabethe, I thought you earlier on opened your submissions by stating that in your opinion the applicant had complied with the requirements of the Act.

MS THABETHE: Yes.

MS KHAMPEPE: Particularly with regard to full disclosure.

MS THABETHE: Yes, I did say so. Nevertheless, I would like to reserve my opinion as to whether it ought not to be granted or it ought to be granted.

CHAIRMAN: Very well. Have you nothing further to say?

MS THABETHE: Nothing further to say, Chairperson.

CHAIRMAN: Mr Wills, anything you wish to add?

MR WILLS: Nothing further thank you Mr Chairperson.

CHAIRMAN: The Committee will consider this application and in due course give its decision. Thank you.

This Committee now stands adjourned until tomorrow morning at 09:15.

COMMITTEE ADJOURNS TO 12.2.1997 AT 09:15

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178

ON RESUMPTION ON 12 FEBRUARY 1997 - PIETERMARITZBURG

MS THABETHE: Members of the Committee, the two applicants who appear before us today are applying for amnesty regarding events that occurred at Mdaleni Magoda and Townlands areas where seven kraals were attacked. It happened on 23 June 1991.

The applicants are not represented, so I will assist them in leading evidence.

ADV DE JAGER: Were they informed that they are entitled to representation and that they could get Legal Aid?

MS THABETHE: As far as I know from the Durban IU they were informed and we did send Form 2 to the prisons informing them that they can get legal representation if they want to.

So yes, they were.

JUDGE WILSON: Were the other people who were convicted with them informed?

CHAIRMAN: Or have they applied?

MS THABETHE: Unfortunately I don't have that information. I don't know if they did apply or not, but as far as I know I don't have any information to that effect.

Mr Ashley says he has called the Durban office to find out if there are any applications, but as far as we know in Cape Town we haven't received any.

CHAIRMAN: Very well. They can be sworn in.

JUDGE WILSON: Sorry, before that. What are they applying for amnesty for?

MS THABETHE: Member of the Committee, actually it is the first question I would like to ask them.

JUDGE WILSON: We would like to know before we hear it.

CHAIRMAN: What do they say on the application form?

MS THABETHE: I would refer the Committee members to No 9

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of Gumbi's application, the translated version.

JUDGE WILSON: I have great difficulty. He there says: "What I did resulted in my arrest, namely murder and I committed this crime". It would appear there he is referring to a single crime ... attempted murder and six counts of murder. But as I read it Zuma was also convicted of robbery with aggravating circumstances. Is he applying for amnesty in respect of that? Aren't these matters that must be clarified before the application can be heard?

MS THABETHE: As I said before, I was going to clarify that when I lead evidence what crimes are they applying for, because from their applications they are talking of crimes that they did, but it is not clear which ones they are referring to.

CHAIRMAN: I think in fairness, so that their own minds are focused when they are giving evidence on the crimes for which they are in fact applying for amnesty, that you should take those details from them now before we start the hearing. Take the particulars of the people who were involved, the victims and the circumstances. As things stand, when we have before us among the papers, part of their application form in one of the official languages and part of it translated into English, and yet there does not seem to be sufficient clarity on precisely what offences because if we are required to give amnesty we can only do so in respect of specific offences. I think that should be cleared up before you start leading evidence and you can then tell us before you start leading evidence as to what the offences are in respect of each one of them. Will you do that?

MS THABETHE: I will do that.

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MS THABETHE 180 ADDRESS

CHAIRMAN: We will take a short adjournment to enable you to do that.

ADV DE JAGER: And could you kindly enquire too whether they have in fact been informed of their right to be legally represented and that they have a right to legal assistance through the Legal Aid Board.

MS THABETHE: I will do that.

CHAIRMAN: It seems to me clear that these other people, from the information you have, have not applied for amnesty.

MS THABETHE: I am not aware that they have applied for amnesty.

CHAIRMAN: I thought that it was possible from your Mr Ashley that that could be ascertained.

MR ASHLEY: They are checking on that now.

JUDGE NGOEPE: This happened many years ago and the applicant and others were charged on a number of counts and most probably they won't even know the names of the individual houses. What you could do is to look at page 61, you will see a complete indictment.

MS THABETHE: I have it with me, of all the people that were involved.

JUDGE NGOEPE: The counts and the victims in each count. Maybe you should discuss it with him along those lines. In all probability he is applying for amnesty in respect of those specific counts set out in the indictment.

MS KHAMPEPE: Ms Thabethe, do they have copies of the documents that they wrote to the Commission?

MS THABETHE: I am not aware. I will find out from them.

CHAIRMAN: We will adjourn to enable you to sort this out. You will call us in as soon as you are read.

COMMISSION ADJOURNS

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